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Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

…Cr.A…No…151….of…2013.

JUDGMENT

Date of hearing………………11.04.2016……………………………

Appellant…(Babar Naseem) by Mr. Ghulam Mustafa Khan Swati,

Advocate……………..

Respondent(s)…(The State etc) by M/S Muhammad Naeem Abbasi,

AAG and Qazi Shams-ud-Din, Advocate ……

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QALANDAR ALI KHAN, J:- Since this

Criminal Appeal by Babar Naseem, appellant,

against his conviction and sentence, Criminal

Revision No.39-A/2013 by Sajjad Ahmad,

complainant/petitioner, for enhancement of the

sentence of the appellant and Criminal Appeal

No.158-A/2013 by the complainant/appellant

against acquittal of respondents Arshad Saleem

and Muhammad Bashir Ahmad, vide judgment

dated 28.11.2013, of the learned Additional

Sessions Judge, Balakot, pertain to the same

case F.I.R. No.170 dated 13.07.2010 under

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sections 302/34 PPC, Police Station Khaki

Mansehra, this single consolidated judgment

shall also dispose of the aforementioned

Criminal Revision as well as the Criminal

Appeal.

2. The F.I.R. was lodged on the report of

complainant, Sajjad Ahmad, to the SHO Police

Station Khaki who reached the spot after

receiving information about the occurrence and

drafted Murasila on the report of the

complainant at 1730 hours on 13.07.2010 about

the occurrence which took place at 1600 hours

earlier in the day at Ichhar Nallah in the limits

of Hafeez Bandi situated at a distance of 5/6

kilometers from the Police Station. In was

reported by the complainant that the Ichhar

Nallah was passing near his land wherefrom

sand/Bajri was being excavated through tractor

alongwith excavator, whereupon his brother

Faisal Waheed Khan reached the said place and

tried to stop the convict-appellant, Arshad

Saleem alias Tipu and Bashir Ahmad sons of

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Ghulam Hassan, who were present there for

excavation of the sand/ Bajri, but the convict-

appellant fired at his brother with his pistol,

causing him fatal injury leading to his death.

According to the complainant, he was also

present in his field and reached the spot, where

he was abused by Arshad Saleem who also

caught hold of him and Bashir Ahmad caused

him two injuries on his head with the butt of his

pistol. The occurrence was shown to have been

witnessed besides him by his brother Shoukat

and mother Mst. Pari Jan. The accused,

according to the complainant, made good their

escape from the spot. The motive for the

occurrence was cited as only excavation of

sand/Bajri from the said land.

3. The deceased, Faisal Waheed Khan, was

referred for postmortem examination to KATH,

Mansehra, where the Medical Officer conducted

postmortem examination, and furnished the

following report:-

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External examination

1. An entry wound about 1 cm in

circumference on mid axillary line on

left side of chest at the level of about 5

to 6 intercostal space. Margins

inverted charring present.

2. An entry wound on left side of chest on

mid axillary line about 1 cm in

circumference at the level of about 3

to 4 intercostal space. Margins

inverted charring present.

3. Exit wound on right side of chest

about 1 cm in circumference at the

level of 6 to 7 intercostal space.

Margins everted.

Internal Examination

In the scalp and skull region no injury

was found. Walls, ribs and cartilages,

pleurae, right lung, left lung, blood

vessels were found injured. Chest cavity

full of blood. In the abdominal region

stomach was found filled with semi

digested food particles. Bladder was

found empty and not injured.

Remarks

In the opinion of Medical Officer cause of

death of Faisal Waheed Khan, was

injuries to both lungs and excessive

internal bleeding due to firearm injuries

leading to shock and death. Probable

time between injury and death: 1/2 hour

to one hour and between death and

postmortem 3 to 6 hours.

4. The injured complainant was also

medically examined and the Medical Officer

found the following injuries on him:

1. Lacerated wound on skull,

dimension 1" in length, bone

not exposed.

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2. Lacerated wound on skull

below wound No.1 and 1" in

length bone not exposed.

3. Bruise back of right

shoulder. Condition of clothes

blood stained. Injury was

caused with blunt weapon.

Probable duration of injuries

less than 12 hours. Advised x-

ray of skull and right shoulder.

Opinion about nature of injury

was postponed to the result of

x-ray.

5. During investigation, the Investigating

Officer inspected the spot and secured blood

stained earth from the place assigned to the

deceased in the site plan and also one crime

empty of 30 bore, giving smell of fresh

discharge, from the place assigned to the

convict-appellant in the site plan. The blood

stained earth and blood stained garments of the

deceased were sent to the Forensic Science

Laboratory and report of the chemical examiner

in respect thereof was received in the

affirmative. The convict-appellant and co-

accused Arshad Saleem were arrested on

21.07.2010; and a pistol 30 bore was recovered

on the pointation of the convict-appellant while

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he was in police custody, which alongwith the

crime empty was sent to the Firearms Expert,

but his opinion was received in the negative.

The convict-appellant also lodged report vide

F.I.R. No.171 dated 13.07.2010 about injuries

caused to him during the occurrence by

Shoukat, eyewitness in this case, on his left

hand and left leg and also injuries on the head

of his brother Arshad Saleem by Sajjad alias

Babu, complainant in the instant case. The I.O.

also collected record showing registration of

criminal cases on the report of the eyewitness

and mother of the complainant namely Mst. Pari

Jan. The work order in respect of mining lease

in favour of Syed Arif Hussain Shah and other

documents showing partnership between Arif

Shah and Abid Shahzad were also brought on

record. After recording statements of the P.Ws

under section 161 Cr.P.C and completion of

investigation, complete challan was submitted

to the trial Court, which framed charge against

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all the three accused under sections 302/34

PPC to which they all pleaded not guilty and

claimed trial.

6. During trial, the prosecution examined

as many as eleven PWs, including Muhammad

Iqbal IHC (PW-1), Arif Ali Shah MHC (PW-2),

Syed Mushtaq Hussain Shah Inspector/Incharge

Investigation Circle City, Abbottabad (PW-3),

Muhammad Yousaf IHC (PW-4), Doctor Khushi

Muhammad, CMO KATH, Mansehra (PW-5),

Sajjad Ahmad complainant (PW-6), Mst. Pari Jan

widow of Muhammad Rafique, (PW-7), Taj

Muhammad SI/OII OS Kaghan (PW-8), Niaz

Muhammad ASI PS Saddar (PW-9), Abdul

Hameed Khan Inspector/CO Allai (PW-10) and

Muhammad Bashir No.218/DFC PS Shinkiari

(PW-11).

7. After prosecution closed its evidence,

statements of the accused were recorded under

section 342 Cr.P.C, wherein, they refuted the

allegations of the prosecution against them, but

declined to be examined on oath under section

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340(2) Cr.P.C. They, however, produced

Waheed, Senior Clerk, Office of Assistant

Director, Mineral Development, Mansehra

(DW-1) and Chan Israfil, Petition Writer,

Mansehra (DW-2) and thereafter closed the

defence evidence. After hearing arguments, the

learned trial Court / Additional Sessions Judge,

Balakot, rendered judgment dated 28.11.2013,

whereby, the appellant was convicted for

offence under section 302(b) PPC and

sentenced to imprisonment for life, and in

addition to the sentence of imprisonment, the

appellant was also made liable to pay

Rs.500,000/- as compensation to the legal heirs

of the deceased under section 544-A Cr.P.C and

in default of payment of compensation, the

appellant was to undergo further simple

imprisonment for six months, while

compensation was to be recovered as arrears of

land revenue. Benefit of section 382-B PPC was

extended to the appellant for the period

undergone by him as under trial prisoner

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before his release on bail. The other two

accused facing trial namely Arshad Saleem and

Bashir Ahmad were acquitted of the charges

levelled against them by extending them the

benefit of doubt. The instant criminal appeal by

the convict-appellant, Criminal Revision No.39-

A/2013 and Criminal Appeal No.158-A/2013 by

the complainant arise out of the same impugned

judgment dated 28.11.2013.

8. Arguments of learned counsel for the

convict-appellant and acquitted accused/

respondents and learned Additional Advocate

General assisted by learned counsel for the

complainant heard, and record perused.

9. The learned counsel for the convict-

appellant argued that there was a delay of 1½

hours in lodging the report to the police on the

spot. The learned counsel pointed out that the

convict-appellant sustained serious injuries

which caused him fracture on left hand and

right foot and restricted his movement and also

the ability to commit the offence of Qatl-i-Amd

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of the deceased. It was further pointed out by

the learned counsel that the prosecution

witnesses, including the complainant and both

the so-called eyewitnesses, were closely related

to each other as mother and the real brothers

inter se therefore they were interested

witnesses and that the non-production of

disinterested witnesses like driver of the shovel

created serious doubts in the case of

prosecution. The learned counsel also referred

to the report of Firearms Expert which proved

recovery of the empty from the scene of

occurrence and alleged recovery of weapon of

offence i.e. pistol 30 bore on the pointation of

the convict-appellant false and not worthy of

consideration against the convict-appellant. The

learned counsel contended that for the injuries

sustained by the convict-appellant also causing

him fractures on his left hand and left foot a

cross case was registered wherein Shoukat, the

so-called eyewitness in the instant case, and

complainant in the case Sajjad and the other so-

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called eyewitness and mother of the

complainant namely Mst. Pari Jan were charged

for injuries caused to the convict-appellant and

his brother Arshad Saleem. The learned

counsel stressed that the learned trial Court

failed to determine the aggressor in the cross

cases. The learned counsel maintained that

there were two versions, one given in the F.I.R.

by the complainant and the other by the

defence whereby it was claimed that during

scuffle between the deceased and the

complainant, the pistol of deceased went off and

the deceased sustained the fatal injuries with

his own pistol. In such a situation, according to

the learned counsel, the version favouring the

defence is to be accepted by the Court.

According to the learned counsel, the presence

of charring marks on both the firearm

wounds on the body of the deceased

supported the defence version. The learned

counsel urged that there were material

contradictions and improvements in the

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statements of complainant and so-called

eyewitnesses, creating serious doubt in the case

of the prosecution against the convict-appellant.

The learned counsel further pointed out that

the prosecution could not prove ownership of

the complainant while, on the other hand, the

defence was able to prove that the convict-

appellant and others were working on the site

under a lease.

10. The learned Additional Advocate

General assisted by the learned counsel for the

complainant, on the other hand, contended that

the convict-appellant was directly charged in

the F.I.R. and was assigned the effective role of

Qatl-i-Amd of deceased brother of the

complainant, Faisal Waheed Khan in the

presence of the complainant, his other brother

and their mother, because of dispute over

excavation of sand/Bajri from the land of the

complainant. According to them, the

postmortem report substantiated allegations

against the convict-appellant, which received

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further corroboration from the case registered

on the report of convict-appellant whereby his

presence on the spot and involvement in the

commission of the offence was proved. They

pointed out that recovery of blood from the

place assigned to the deceased in the site plan

and positive report of the chemical examiner in

respect thereof and the blood stained garments

of the deceased proved the scene of occurrence,

together with recovery of a crime empty of 30

bore which further supported the commission

of the offence in the mode and manner narrated

by the complainant and the eyewitnesses. It

was urged on behalf of the complainant that the

commission of offence of Qatl-i-Amd of the

deceased by the convict-appellant should have

attracted the normal penalty of death and,

likewise, the other co-accused charged for

causing injuries on the head of the complainant

should also have been convicted and sentenced.

11. The F.I.R. was, admittedly, lodged after a

delay of 1½ hours and that too on the spot by

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the complainant to the police who reached

there after receiving information about the

occurrence. In other words, neither the

complainant nor his other brother and even

their mother, Mst. Pari Jan, who had previously

lodged a couple of reports in the Police Station,

went to Police Station Khaki situated at a

distance of 5/6 kilometers from the spot to

lodge the report. The deceased, who according

to the postmortem report died after 1/2-1 hour

of sustaining the firearms injuries, was not

taken to the hospital for treatment by his two

brothers and mother who remained with the

dead body on the spot for 1½ hours.

12. Not only the material witnesses of the

prosecution are closely related to each other as

complainant and the other eyewitness namely

Shoukat are real brothers of the deceased and

Mst. Pari Jan is their mother, but the statement

of the complainant and his mother Mst. Pari Jan

were also not found to be consistent and

coherent, as improvements were noticed with

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regard to their presence on the spot at the time

of occurrence. In the F.I.R., the complainant

showed his presence in the field at the time of

occurrence but in his statement before the

Court the complainant stated that it was

incorrectly recorded in his report that he was

working in his land. He, on the other hand,

stated that he alongwith deceased, his mother

Mst. Pari Jan and brother Shoukat went to the

field to stop accused from excavation of

sand/Bajri from their land. Mst. Pari Jan (PW-

7) also negated assertion of the complainant in

the F.I.R. to the effect of his presence in the field

at the time of occurrence and reaching to the

spot there-from by saying that at that time she

alongwith the complainant and the other

eyewitness and his son Shoukat were present in

their home, where her deceased son Faisal

Waheed came and told them that the convict-

appellant and the acquitted co-accused with the

help of Shovel were excavating sand and Bajri

from their land in Ichhar Nallah and a tractor

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trolley was also there, whereupon he alongwith

her abovementioned three sons went to the

spot. Interestingly their house does not appear

in the site plan wherein the scene of occurrence

has been shown surrounded by fields of

different land owners. Intriguingly, the driver

of shovel shown present on the spot at the time

of occurrence was not examined, neither he

being an independent and disinterested witness

and hence the best possible evidence was

produced and the other eyewitness namely

Muhammad Shoukat was abandoned by the

prosecution, thus leaving the ocular testimony

of the complainant (PW-6) and his mother

(PW-7), who were not only highly interested

but were also not found credible due to

aforementioned inconsistencies and

discrepancies found in their statements before

the Court. With doubts cast on the statement of

material prosecution witnesses, the very

foundation of the prosecution case was shaken,

which could not provide a sound basis for

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conviction of the appellant. It is noteworthy

that even the trial Court discredited the

testimony of PW-6 and PW-7 in the following

words:

“When PW-6 has failed to ensure his

steadfastness to the part of his

report about the way of his mixing in

the tussle at the spot, mere stamp of

injuries on his person is not sufficient

to make his testimony absolutely

believable, as far as omitted part of

the charge sheet is concerned.

Moreover, testimony of PW-7 as to

manner to conduct of PW-6 on the

spot is at variance with the conduct

PW-6 himself alleged in his report

and testimony. Therefore, it is not

safe to base the conviction of

accused facing trial on testimony of

PW-6 and PW-7 being ridden with

contradictions.”

One wonders that if statements of these

witnesses were considered not safe to base

conviction of accused facing trial and co-

accused Arshad Saleem and Bashir Ahmad were

acquitted of the charges levelled against them

by extending benefit of doubt to them by the

trial Court, then how the learned trial Court

could rely on such statements for recording

conviction of the convict-appellant.

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13. The Medical Officer (PW-5) found

inverted charring present on both the entry

wounds, indicating firing from a very close

range, which runs counter to the probable

distance between the deceased and the convict-

appellant in the site plan, as distance between

point ‘A’ where deceased was shown and point

‘4’ where presence of the convict-appellant was

shown has not been mentioned in the site plan.

In any case, the presence of charring marks on

both the entry wounds on the deceased tend to

lend support to the suggestion that the pistol

went off during scuffle/grappling between the

deceased and the convict-appellant, causing

fatal injuries to the deceased leading to his

death, and thereby casting shadow of doubt on

the case of the prosecution. (2011 SCMR 323

{a}). The negative report of the Firearms

Expert about the so-called weapon of offence i.e.

30 bore pistol recovered by the I.O. on the

pointation of the convict-appellant while he was

in police custody and that of the crime empty

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recovered by the I.O. during spot inspection

created further doubt about the version of

prosecution and created space for the version of

defence. In such a situation, when there were

two versions, one in support of the prosecution

case and the other favouring the defence, the

one favouring defence is to take precedence in

the light of 2010 SCMR 1009 (c) and PLD 1994

SC 31 {b}.

14. The learned Additional Advocate

General assisted by the learned counsel for the

complainant remained focused on the

suggestion made by the defence during the

cross-examination of the complainant whereby

it was suggested that the deceased was busy in

scuffle with the convict-appellant and that

during grappling the pistol in the hand of the

deceased went off and he sustained injuries on

his person at his own hand; and they claimed

that the defence thereby admitted the presence

of convict-appellant at the spot at the time of

occurrence and also commission of offence by

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him; but they lost sight of the fact that even

otherwise the presence of the convict-appellant

is not denied by the defence, as a cross F.I.R.

No.171 about the same occurrence was himself

lodged by the convict-appellant, but with a

different version. However, no conviction could

be based on such a suggestion by the defence,

moreso, when no question was put to the

convict-appellant about this suggestion during

his statement under section 342 Cr.P.C, in the

light of judgments reported as 2010 SCMR

1009 {b} & {d}, 2005 MLD 1603 {Quetta} and

2014 P.Cr.L.J. 11 {Peshawar}.

15. As such, the prosecution miserably

failed to bring home charges against the

accused facing trial, therefore, the co-accused

namely Arshad Saleem and Bashir Ahmad were

rightly acquitted of the charges; and conviction

of the convict-appellant on the basis of the same

evidence would also not be sustainable. The

convict-appellant is therefore acquitted of

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the charges, and he be set at liberty, if not

required in any other case.

16. Resultantly, the instant criminal appeal

is allowed, criminal revision No.39-A/2013 is

dismissed together with Criminal appeal

No.158-A/2013 by the complainant against the

acquittal of co-accused Arshad Saleem and

Bashir Ahmad.

Announced.

Dt.11/04/2016.

J U D G E

J U D G E

\/*M.S.AWAN*/