1997 PLP 2297 (MLD)

(1) An exit wound 1 cm in diameter in the third thoracic vertebrae in the mid line posteriorly. (2) An exit wound 1 cm in diameter 6" below wound No. 1, 2" right lateral to the mid line posteriorly. (3) An exit wound 1 cm in diameter 8" below wound No.2, " right lateral to the mid line posteriorly. (4) An exit wound one cm in diameter in the right buttock, 2" below the iliac crest. (5) An entry wound 1 cm in diameter, 4" above iliac crest in the right mid scapular line. (6) An entry wound 1 cm in diameter 6" above wound No.5 in the posterior axillary line. (7) An entry wound 1 cm in diameter on the right iliac crest, 2" posterior to anterior superior to iliac crest. (8) An entry wound cm in diameter in the middle 1/3rd of the right shoulder. On the internal examination he found third thoracic vertebra fractured, spinal cord injured at the level of the site of injuries. Thorax ribs and cartilages normal, thoracic wall injured at the site of wound, right pleaura, right lung, blood vessels injured (particularly mesentiric blood vessels). Abdomen and peritoneums injured, small intestines injured at multiple places, large intestine injured at ascending colon. Liver injured right lobe lower border. In the opinion of the doctor death caused due to injuries to vital organs. Probable time between injury and death was instantaneous while time between death and post‑mortem examination was shown as four hours.

6. The accused‑appellant was formally charged who pleaded not guilty and denied the allegations of the prosecution levelled against him. The prosecution in support of its case examined 9 P.Ws. including the formal witnesses. After the close of the prosecution evidence the accused‑appellant was examined under section 342, Cr.P.C., wherein he once again denied his having committed the offence and professed innocence. However, he admitted that Tariq Khan who was his first cousin was murdered in Tribal Territory but showed his ignorance that the deceased was suspected or charged for the murder. He pleaded alibi and stated that he was serving in Tochi Scouts and was posted at Miran Shah during the days of occurrence and denied his abscondence. He made his statement under section 340(2), Cr.P.C., on oath in rebuttal of the prosecution case and reiterated that at the time of occurrence he was on duty inside the Fort and that he has been falsely charged. The accused‑appellant has produced Ajjar Din, Hawaldar Tochi Scouts Miran Shah in his defence.

7. The accused‑appellant having been found guilty, convicted and sentenced to the terms of imprisonment and fine referred to above, has challenged the order of his conviction in the present appeal while the complainant has prayed for enhancement of his sentence in Cr.R.No.11 of 989.

8. We have heard the learned counsel for the parties in the appeal as well as in the revision petition and the learned Assistant Advocate‑General for the State in both these matters. We have been led through the entire evidence recorded by the trial Judge.

9. The ocular evidence in this case consists of the statement of the complainant namely Sanaullah Khan P.W. 5 and his brother Naqibur Rehmen P.W.6 and corroboration is sought for from medical evidence, recoveries from the spot, abscondence of the accused and a motive for the commission of the offence. On the other hand, the learned counsel for the appellant has challenged the presence of the complainant and that of Naqibur Rehman at the spot at the relevant time. Delay irk the F. I. R., material discrepancies in the statement of the witnesses in juxtaposition to the medical evidence as well as the site plan are stated to have negatived the prosecution version of the occurrence. Plea of alibi raised by the appellant at the earliest supported by his statement on oath under section 340(2), Cr.P.C., and further supported by the statement of Ajjar Din Hawaldar and extracts from the attendance register further creates strong reasonable ground in support of his plea.

10. The complainant in his F.I.R., did state that at about 9‑30 hours he and his brother both were present at their shops that in the meantime Abdul Sabir Khan, the appellant and Muhammad Farooq, the absconding accused both armed with 12 bore shot guns came there and both of them fired one shot each one after the other at Nazif Khan, with whose fire Nazif Khan was hit and died on the spot. Naqibur Rehman his brother and Azim Khan his cousin were stated to have witnessed the occurrence, however, when the complainant appeared in the witness‑box he tried to improve upon his statement to bring it in line with the medical evidence and the site plan allegedly prepared at the instance of the eye‑witnesses. This departure was mainly made, unusually, in his examination in chief in which he stated as under:‑‑‑ "I am running grocery shop in Nizam Bazar, Bannu. The deceased Nazif Khan was selling vegetable in the front of my shop. On the eventful day at about 9‑a.m. I was present in my shop and was facing the road side whereas the deceased Nazif Khan was busy in connection with vegetable. In the meanwhile the two accused namely Abdul Sabir Khan and Muhammad Farooq Khan duly armed with D.B. shot guns came there and each of the two accused fired a shot each. In fact accused Abdul Sabir made the first fire while the other accused Muhammad Farooq fired second shot." The witness has stated that the occurrence was witnessed by his brother Naqibur Rehman and Azim Khan apart from a large number of other persons who were also present there. He has further stated that after the occurrence he closed the shop and they placed the dead body of Nazif Khan in a Datsun and took him to Police Station Saddar. It may be pointed out that it has been mentioned by the police that the dead body was brought to the Police Station by Sanaullah Khan P.W.5 with the help of Raham 'Dil son of Hazrat Bilal and Muhammad Sultan son of Amir Suleman. None of these two persons were produced in the witness box though the complainant has stated that Sultan and Reham Dil alongwith P.W. Naqibur Rehman and Azim Khan came to the spot with the Investigating Officer. The assertion of the complainant about the presence of Naqibur Rehman and Azim Khan, therefore, appeared to be doubtful as their presence is not recorded by the police having accompanied the dead body. Furthermore, the aforementioned two persons who had accompanied the dead body to the Police Station have not been examined in Court to support the complainant. The improved statement of the complainant that the deceased was setting vegetables for sale at point No. 1 in the site plan. Which is Kacha part of Kohat‑Bannu Road is not supported by the corroborative evidence as neither any vegetables or other materials have been recovered from the point nor the same is shown in the site plan by the I.O. The Investigating Officer, however, recovered a plastic wad of 12 bore from point No. l at a distance of 5 feet from the door of the shop. Point No. l on which the deceased was fired at is at a distance of about more than 13 feet from the shop. The witness has further in his improved version stated that the deceased was facing towards the ground when the accused fired at his front side. The witness has admitted that the appellant was serving in Frontier Constabulary stationed at Miran Shah as Armorer during the days of occurrence. The suggestions put to the witness that he "did not run the shop in Bannu Bazar; that the shop in question belonged to the deceased; that he was not present at the spot at the time of occurrence and that he was informed by Raham Dil in the village about the murder of his brother", were denied in toto.

11. The presence of Naqibur Rehman was seriously challenged for the reason stated above and for the reason that he being a mason was not supposed to be present at the spot. His assertion that he and Azirn Khan alongwith the deceased and the complainant left their houses at 7‑30 a.m in the month of January for no business of their own but simply to take tea is unreasonable and does not stand to reason. Furthermore, the circumstance also does not support his presence as the place on which his presence is shown is a Kacha road side and when the I.O. arrived neither tea pots nor ' mora' on which they were allegedly sitting were found. The witness own admission that it was Friday and there used to be huge crowd on the road side further makes his presence on the road side, taking tea in spite of the fact that the adjacent shop of his brother was allegedly open at the relevant time, is highly doubtful. Delay in lodging the F.I.R., is apparent on the record. Dr. Masood Jan P.W.8 when questioned about time of the occurrence given in his post‑mortem report has stated that he was informed by the relative of the deceased as well as the police officials that occurrence had taken place at 8‑00 a.m. and at their instance and information he has noted the time of occurrence as 8‑00 a.m. in the relevant column of the post-mortem report.

12. The site plan prepared by the Investigating Officer is also in conflict with the F.I.R., and the medical report. The complainant in his report Exh.P.A. has stated that at about 9‑30 a.m. he and his deceased brother were present at the shop when the deceased was fired at by the accused but the place where the presence of the deceased at the time of firing is shown, as already pointed out, is at a distance of more than 13 feet from the shop towards the road and the place where the presence of the complainant is shown. In order to cover up the infirmities, it appeared that the Investigating Officer has made efforts, while preparing the site, to show that the ' Atta' bags were lying at point No.7 outside the shop from which allegedly some pellets were recovered. On the other hand, at the time of inspection of the spot the Investigating Officer found 10/12 bags of "Atta" inside the shop of the complainant of which two bags had pellets mark. The two bags were opened from inside. From one of the bags two pellets and from the other 6 pellets were recovered which were taken into possession vide recovery memo. Exh.P.D. in the presence of the marginal witnesses. It has, therefore, rightly been contended by the learned counsel for the appellant that the recovery memo. is in line with the case set up in the F.I.R., but subsequently a futile effort has been made to shift the scene of occurrence from the shop to the open on the road side at a distance of more than 13 feet in the front. The presence of the complainant is also shown outside the shop but adjacent to the door of the shop.

13. Apart from the material improvement, contradictions, discrepancies and inherent infirmities in the prosecution case the appellant's plea of alibi has also not been considered by the trial Judge in its true perspective. Although the complainant knew that the accused was in service and posted at Miran Shah he did not mention this fact at the time of lodging the report. Even the Investigation Officer showed lack of interest by securing warrant of arrest and proclamation against him in spite of his having come to know of the accused's employment in active force. The plea was raised at the initial stage of investigation by producing a certificate issued by an officer on behalf of Commandant, but the case was not investigated on that line. Ajjar Din in his statement on oath has stated that at the relevant time the accused was stationed inside Miran Shah Fort as an Armorer in Tochi Scouts but in spite of that mock proceedings regarding abscondence of the accused were taken. Moreso, when in the warrant and the proclamation he is shown posted at Miran Shah. Ajjar Din Hawaldar Tochi Scouts Miran Shah examined as D.W.1 has clearly stated that Abdul Sabir accused was known to him as he is employed as an Armorer at Miran Shah Fort. His Unit was stationed inside Miran Shah Fort. The total strength of the personnels were given to be 1054. That no person can go outside the Fort without a Gate Pass issued by his superior. He produced the attendance register for the year 1988 in which he used to mark the attendance of the company personnels at the time of general parade which is held in the morning time at 9‑15 a.m. in the winter and at 7‑30 a.m. in summer. He further deposed that when leave is granted to a person his ration is cancelled and the documents are forwarded to him for making such entry. According to him the appellant is marked present the whole month at page 52 at Serial No.81 of the register in January, 1988 and that entries are in his handwriting. Photostat copy of the entries from the said register have been placed on file as Exh. D. W .1,

1. The witness was confronted with the certificate Exh.D.1, who verified that it bears the signature of Major Muhammad Bashir Khan but showed his ignorance as to when he was transferred. He admitted in his cross‑examination that the register which he produced is not the attendance register but in fact it is "attendance and duty register" and is meant for the persons who used to remain on duty inside the Fort. When suggestion was made to the witness that page 59 is missing from the register he did not admit it but stated that instead of 59 by a clerical mistake the page is marked as 69 and the matter not pursued.

14. The learned trial Judge considering this evidence formed his view that the accused was not successful in proving his plea of alibi expressed that such kind of evidence is not sufficient to prove the plea of alibi. The learned trial Judge fell into error in making such observation as it is the cordial principle of administering justice that accused is not supposed to prove his innocence rather he would earn acquittal by extending to him the benefit of doubt if he succeeds in creating reasonable doubt in the mind of the Court that his plea might be true. For the reasons stated above, we are of the view that the prosecution has failed to prove the case against the accused‑appellant beyond any reasonable doubt. Furthermore, the accused was successful in creating reasonable doubt in our mind about his plea of alibi which has not been seriously challenged by the prosecution in the investigation though raised at a very initial stage. This appeal, therefore, is accepted, conviction and sentence of the accused‑appellant is set aside and he is acquitted of the charge. He shall be set at liberty forthwith if not required in any other case. The observations made in this judgment shall however, have no bearing on the trial of the absconding accused. In consequence the revision petition fails and is dismissed. N. H. Q. /2072/P Appeal accepted.