2020 PLP 124 (YLRN)

MALIK HAQ NAWAZ, C.J.

Mujtaba son of Zolair and Nasirullah son of Alishan were tried by the learned Addl. Sessions Judge Diamer for the offences under section 324/337F/34, P.P.C. arising out of FIR No. 26/2016 of Police Station Gonor Farm, Tehsil Chilas, District Diamer. The learned trial Court vide its judgment dated 18-09-2019 convicted the appellants and awarded them following punishments:- Under section 324 7 years RI each Under section 337-F Rs. 100000-00 as Daman each

2. Challenging their conviction/ sentence both the appellants have filed the instant Cr. Appeal for their acquittal from the charges.

3. The story of the prosecution as narrated in the FIR is that on 25-09-2016 at about 14:10 the accused/appellants opened indiscriminate firing upon one Mardan, causing gunshot injuries on his shoulder, who luckily survived. The occurrence was witnessed by one Mawar Khan and Naseer Khan.

4. The charge was framed on 05-04-2017 to which the accused pleaded "not guilty" and claimed trial. In order to prove the case prosecution examined 7 PWs and closed its case. On 17-04-2019 the statements of the accused under section 342, Cr.P.C. were recorded and in their statements under section 342, Cr.P.C. both the accused pleaded their innocence and stated that a false and fabricated case was registered against them. However, the accused did not opt to make a statement on oath and also refused to produce any defence witness.

5. After hearing the parties, the learned trial Court rendered a verdict of guilt against the accused and awarded them 7 years R.I., under section 324, P.P.C. and Rs. 100000/- (one lac) each was imposed as "Daman" to be paid to the victim.

6. The learned counsel for the appellants submitted that the judgment of learned trial Court is full of inherent doubts and not sustainable in the eyes of law. The judgment has been based on the statement of highly partial and interested witnesses, who failed to prove their presence at the place of occurrence. The recovery of weapon of offence from the possession of appellant Mujtaba is fake and factious and has been falsely planted by the I.O. just to strengthen the prosecution case. No recovery has been effected from the appellant Nasirullah, which makes the whole of prosecution case doubtful. The learned trial Court has given much weight to the quantity of the witnesses and quality of the evidence has not be considered. The material contradictions in the statements of the PWs have been ignored. The benefits of all reasonable doubts have been resolved in favour of prosecution, which was the sole right of the accused. The judgment is perverse, arbitrary and full of doubts and the appellants deserve acquittal from the charges.

7. The learned Dy. Advocate General opposed the appeal with vehemence and submitted that it was a day light occurrence and the occurrence was reported within 10 munities, which rules out the possibility of deliberation and mutual consultations. The medical report also lends support to the case of prosecution. Weapon of offence has been recovered from the appellant Mujtaba and non recovery of weapon of offence from the appellant Nasirullah does not advance the case of defence. The victim and eye-witnesses of the occurrence have charged both the appellants for commission of offence. The trial Court has already shown leniency in mater of sentence, which be maintained in the peculiar circumstances of the case in hand.

8. The occurrence took place on 25.09.2016 at 1410 hours and was reported at 1420 hours. The names of eye-witnesses are mentioned in FIR, who supported the case of prosecution, while appearing in witness box. The statement of victim is supported by the eye-witnesses and the medical report of the victim is in line with the prosecution evidence. The contention of the learned counsel that the FIR lodger stated that he went to Police Station with the victim is falsified from the statement of Investigating Officer who stated that the FIR lodger came alone is not a fatal factor, which may demolish the whole of the prosecution case. The FIR was lodged promptly and not a single suggestion has been put to FIR lodger that the FIR was not lodged at the time/date mentioned therein. The second limb of the arguments of the learned counsel that no recovery has been effected from the appellant Nasirullah does not advance the case of appellant as he has specifically been charged by the victim for opening fire shots on his person and that too, when a specific question was asked by the defence. Recovery is considered a supportive/corroborative evidence and where natural and straight forward evidence of the eye-witnesses/victim is available, no corroboration is required to maintain conviction. As evident from the judgment of learned trial Court, the I.O. of the case has not recovered any weapon of offence from the accused Nasirullah, who was also a police official, whereas two types of crime empties i.e. 7.62 MM and G-3 riffles were recovered from the place of occurrence, which shows that two types of fire arms were used in commission of the offence. Ex.PW-2/A shows that 02 crime empties of 7 MM riffle were recovered from the place of occurrence, likewise PW-2/C shows that 02 crime empties of G-3 riffles were also recovered on the same time from the same venue. The I.O. of the case as reflected in the impugned judgment has not conducted the investigation in a fair and transparent manner and tried to damage the case of prosecution. Now it is an established principle that the complainant should not suffer because of any intentional or un-intentional defect in investigation of a criminal case. The I.O. in the instant case as observed supra intentionally tried to save his "Peti Band Bhai" by not effecting weapon of offence from him but was rightly spotted by the learned trial Court. The conduct of the I.O. is highly depreciated. A copy of this judgment be sent to SSP Diamer for necessary probe and appropriate action against the I.O. of the case. The complainant cannot be allowed to suffer because of inefficiency of the investigation officer. Reliance is placed on 2014 PCr.LJ 885 and 1998 PCr.LJ 114 and the relevant citations are re-produced as under:- 2014 PCr.LJ 885: "(f) Criminal Trial

Fault of prosecution or mistake of Investigation Officer

Effect

Complainant, should not suffer for the fault of prosecution or mistake of the Investigation Officer in properly noting down the facts, while in discharge of his duties and functions

If such discrepancy was allowed to supersede the direct ocular account it would result in allowing the culprits safe passage by managing/arranging such discrepancies, which could be claimed to be protected by prosecution to be bona fide mistake/errors." 1998 PCr.LJ 114: (a) Penal Code (XLV of 1860)

S. 302/34

Appreciation of evidence

Defective investigation not to demolish prosecution case

Procedural defect or irregularities and even illegalities in the course of investigation shall not demolish the case of prosecution."

9. The prosecution despite dishonest investigation by I.O. has proved its case from the attending circumstances against the convict/appellants. The conviction handed down by the learned trial Court is maintained. The sentence is on a little harsher side. This Court in two cases of similar nature i.e Atta-ur-Rehman v. The State and Munir Alam v. The State, has reduced the sentence of both the appellants to 5 years R.I. The sentence of convict/appellants is reduced from 7 years to 5 years R.I .Benefits of Section 382-B, Cr.P.C. will remain intact. The daman of Rs. 10,0000/- (one lac each) shall remain intact and shall be recovered as an arrear of land revenue and shall be paid to victim.

10. Before parting with the judgment it has painful to observed that the I.O. of the case tried his level best to destroy the prosecution case from its very root and reasons for such intentional and deliberate dishonesty was that one of the convict/ appellant Naseerullah was posted as a "Mohrir" in Police Station Gonor Farm, that's why no recovery has been effected from the convict/appellant Naseerullah despite recovery of two different types of crime empties from the scene of occurrence. In investigation there is another alarming factor which cannot be ignored lightly. During the investigation of the instant case one five shot rifle Pak made as evident from FIR No. 27/ 2016 was recovered from convict/ appellant Mujtabah but I.O. submitted the challan against the said accused under Section 13-A.O. and showed that a pistol No. FF23195 was recovered from the said accused which ultimately resulted into his acquittal in the case under section 13 A.O. I.O. of the case namely SIP Andleep Khan is a dishonest Police official and such type of black sheep in the Police Department must be taken to task and dealt with iron hand. A copy of this judgment/order be sent to IGP Gilgit-Baltistan, who will constitute an inquiry team, which shall be headed by an officer not blow the rank of DIG and the inquiry team shall submit the findings/ recommendations within a period of 2 months from today and the IGP in return shall initiate action against the above named SIP and action so initiated against the above delinquent SIP namely Andleep Khan shall be communicated to the registrar of this Court on 15 August, 2020, without fail.

11. The Criminal Appeal bearing No. 26/2019 partially allowed and is disposed of in the above terms. JK/50-/GB Order accordingly.