IN THE PESHAWAR HIGH COURT, · 1 *M.Siraj Afridi P.S. D JUDGMENT SHEET IN THE PESHAWAR HIGH COURT,...

*M.Siraj Afridi P.S. D

1

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr.A. # 690-P/2011

Date of hearing: 25.09.2014

Appellant (s): Fazal Muhammad by Barrister

M.Zahoor ul Haq, Advocate.

Respondent(s) : State by Mr. M.Sohail Assistant A.G.

and Zia ul Haq complainant by Mr.

Ishtiaq Ibrahim, Advocate.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This criminal

appeal calls in question the legality and propriety of

judgment dated 24.11.2011, rendered by learned

Additional Sessions Judge Lahore, District Swabi,

whereby he convicted appellant Fazal Muhammad

under section 302 (b) PPC for committing the

murder of Rahat Ullah deceased and sentenced him

to undergo imprisonment for life as Ta’azir and to

pay Rs.1,00,000/-, as compensation to LRs of

deceased in terms of section 544-A Cr.P.C. or in


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default thereof, to undergo 06 months S.I. further.

He was further convicted under section 324 PPC for

attempting at the lives of complainant Zai ul Haq

and PW Aman Ullah and sentenced to undergo

rigorous imprisonment for seven years on two

counts and to pay a fine of Rs.20,000/- on each

count or in default thereof to undergo 03 months

S.I. further on each count. Benefit of section 382-B

Cr.P.C. was extended to him.

2. The prosecution case as unfolded in First

Information Report is that, on 20.05.2010 at 1920

hours, no sooner complainant Zia ul Haq (PW.7)

alongwith his brother Rahat Ullah deceased and

father Aman Ullah (PW.8), came out, after offering

evening prayer in Qadar Baba mosque, accused

Fazal Muhammad (appellant-convict herein)

alongwith absconding co-accused Fida Muhammad

an Wisal Muhammad, duly armed with firearms,


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standing there opened fire at them, as a result,

Rahat Ullah was hit and died on the spot, while

complainant and his father luckily remained

unscathed. Motive behind the occurrence is stated

to be that, few days prior to the incident accused by

virtue of some domestic disputes, were outlawed by

the complainant from participating in the “Fatiha

Khwani” of his deceased mother. In addition to

complainant, the incident is stated to have

witnessed by his father Aman Ullah (PW.8) and his

uncle Hidayat Ullah (abandoned PW). Report of the

complainant was incorporated in to FIR Exh.PA by

Pir Jamal S.I. (PW.10). He also prepared injury sheet

and inquest report of deceased Exh.PM/1 and PM/2

and referred the dead body for postmortem

examination.

3. Dr. Syed Asghar Ali Shah (PW.6)

conducted autopsy on the dead body of the


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deceased and found the following injuries on his

person:-

1. Firearm entrance wound on right side

scalp on occipital area about ½ x ½ cm.

2. Firearm exit wound on right orbital area,

the right eyewitness missing, size about 4

x 4 cm.

3. Firearm entrance on left arm about ½ x ½

cm

4. Firearm exit wound on left side chest

above the nipple size about 0.6 x 2 in

length.

5. Firarm entrance wound on the right HC,

size about ½ x ½ cm.

6. Firearm exit wound on back of right

lumber region about 6 cm in dimension.

In his opinion the death of the deceased

occurred due to firearm injuries to vital organs like

brain, liver, lung, leading to hemorrhage, shock and

death.

4. Tariq Saeed ASI (PW.9) conducted

investigation in the case. During spot inspection he

secured bloodstained earth Exh.P.1 from the place


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of the deceased vide recovery memo Exh.PW. 5/1,

three empties of 7.62 bore Exh.P.2 from the place of

the appellant/convict vide recovery memo

Exh.PW.5/2, five and three empties from the places

of absconding co-accused Fida Muhammad and

Wisal Muhammad, respectively, vide recovery

memo Exh.PW.5/3. Vide recovery memo

Exh.PW.5/5, he took into possession the last worn

bloodstained garments of the deceased, prepared

site plan Exh.PB on the pointation of eyewitnesses,

sent the bloodstained articles to the FSL and

received report thereof Exh.PK. He also sent the

recovered empties to Firearms Expert, initiated

proceedings under sections 204 and 87 Cr.P.C.

against the accused and on completion of

investigation, handed over the case file to Sher Afsar

Khan SHO, who submitted challan in terms of

section 512 Cr.P.C. against the accused.


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5. On arrest of the appellant/convict,

supplementary challan was submitted against him

before the learned Trial Court, where he was

formally charge sheeted to which he pleaded not

guilty and claimed trial. To bring home the guilt of

appellant, prosecution examined as many as ten

witnesses. After closure of the prosecution

evidence, statement of appellant was recorded

under section 342 Cr.P.C., wherein he denied the

prosecution allegations and professed his innocence.

He, however, declined to be examined on oath as his

own witness under section 340 (2) Cr.P.C. or to

produce evidence in defence. On conclusion of trial,

learned Trial Court, after hearing both the sides,

convicted and sentenced him, as mentioned above,

hence, this appeal.

6. Learned counsel for the appellant argued

that impugned judgment of the learned Trial Court is


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based on misreading and non-reading of evidence

available on record; that both the alleged

eyewitnesses, who are close relatives of the

deceased have badly failed to establish their

presence on the spot, therefore, their testimony

which otherwise is suffering from material

contradictions, discrepancies and dishonest

improvement, getting no corroboration from the

site plan, medical evidence as well as other

circumstances of the incident, cannot be made basis

for recording conviction; that peculiar facts and

circumstances of the case strongly suggest that the

alleged eyewitnesses were procured, later on,

because none of them being in close proximity with

the deceased, has sustained a single scratch with the

alleged indiscriminate firing of three accused. He

further argued that let off the alleged eyewitnesses

by the accused with whom they had a common


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motive, is highly improbable; that PW Hidayat Ullah

who is real uncle of the complainant has been

abandoned for no good reason, which amounts to

withholding of best available evidence and in the

circumstances, adverse inference within the

meaning of Article 129-G of the Qanun-e-Shahadat,

Order, 1984 would be drawn against the

prosecution; that keeping in view the locale and

dimension of injuries on the person of the deceased,

the occurrence seems to be the doing of single

person; that general role of firing has been

attributed to three accused but no FSL report/Fire

Arms Expert report is available on file qua the

recovered empties so as to determine as to whether

these empties have been fired from one or more

than one weapon and in such circumstances,

vicarious liability of the accused on mere oral

assertion without supporting evidence, cannot be


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determined; that site plan and medical evidence

contradict the ocular account; that statement of the

complainant is suffering from dishonest

improvements; that in absence of substantive

evidence mere abscondence of the appellant, which

otherwise, he has been denied in his statement

under section 342 Cr.P.C., would not be sufficient for

recording conviction. He contended that

prosecution case is pregnant of doubts, benefit of

which is to be extended to the appellant not as a

matter of grace or concession but as a matter of

right and he be acquitted.

7. Conversely, learned counsel for the

complainant contended that appellant along with his

co-accused is directly charged for the occurrence in

a promptly lodged report; that role of firing has

been attributed to all the three accused so it would

be immaterial as to whose fire shot proved fatal


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because under section 34 PPC, each of the accused

is vicariously liable for the act done by his

co-accused; that on the basis of mere close

relationship of the eyewitnesses, their

straightforward, confidence inspiring testimony,

corroborated by medical evidence as well as

recoveries from the crime spot, cannot be

discarded; that prosecution has failed to create any

dent in the ocular account; that prosecution has

successfully proved the guilt of the appellant

through cogent and confidence inspiring evidence.

He contended that the impugned judgment of the

Trial Court being based on proper appraisal of

evidence is not open to any interference.

8. Learned A.A.G. while supporting the

impugned judgment of the learned Trial Court,

sought dismissal of the appeal.


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9. We have considered the exhaustive

submissions of learned counsel for the parties and

perused the record with their able assistance.

10. The ocular account of the occurrence has

been furnished by Zia ul Haq (PW.7), and Aman

Ullah (PW.8), who are real brother and father,

respectively, of deceased Rahat Ullah. True that on

mere close relationship of a witness with the

complainant or deceased, his testimony cannot be

discarded provided the same is trustworthy,

confidence inspiring and corroborated by other

strong circumstances of the incident. Similarly, for

believing and relying upon the testimony of an

eyewitness, the eyewitness who claims his presence

at the spot must satisfy the mind of the court

through some physical circumstances or through

some corroborative evidence in support of his

presence at the spot.


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11. Keeping in mind the above principles, we

would like to evaluate the ocular account furnished

by PWs Zia ul Haq and Aman Ullah. In his report

complainant Zia ul Haq (PW.7) stated that the

accused were armed with firearms, who on sighting

them, opened fire at them, as a result, deceased

Rahat Ullah was hit and died on the spot, but in his

court statement while making dishonest

improvement to bring in line his testimony with the

recovered empties from the spot, he deposed that

the accused were armed with machines. Recovery of

7.62 bore empties has been effected from the spot,

which means that the deceased was done to death

with Kalashnikov. A look over the site plan Exh.PB

reveals that complainant (PW.7) has been shown at

point No.2 while the accused at points No.5, 6 and 7.

The distance inter-se the complainant and the

accused as shown in the site plan is 12, 8 and 7


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paces. Kalashnikov or 7.62 bore rifle is a common

weapon in the society, particularly this part of the

country, which can be recognize easily even from a

sufficient distance. In the instant case, when the

accused were in close proximity with the

complainant, how he could not identified and

recognized the weapons they were allegedly

holding. Complainant and PW Aman Ullah have been

shown at a distance of 5 and 7 paces from the

deceased. The occurrence allegedly took place in

front of Qadar Baba mosque. Both, complainant and

PW Amanullah have charged the accused for

indiscriminate firing at them as well as the

deceased. It is not the case of the PWs that they at

the time of firing took shelter some where. Aman

Ullah PW.8 in cross-examination deposed that in all,

about 80/90 shots were fired by the accused

including aerial firing, but none of the PWs has


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sustained a single scratch what to say of any firearm

injury despite they being in close proximity with the

deceased and at the mercy of the accused. The

escape of the PWs from such heavy firing of the

accused or their let off by the accused having

common motive with them, is highly improbable.

No spent bullet has been recovered from the spot.

Though, the I.O. has observed some bullet marks on

the wall of the mosque but he has not given any

explanation whether these were fresh or otherwise.

Besides, the numbers of recovered crime empties do

not commensurate with the number of fire shots as

stated by PW Aman Ullah. It is not the case of the

PWs that some body removed the empties from the

spot. Both the PWs have admitted in their cross-

examination that the dead body of the deceased

was picked up by them and was put on a cot, in

which process their hands and clothes smeared with


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the blood of the deceased, but none of them has

produced the bloodstained clothes to the I.O. so as

to establish their presence on the spot. The stance

of PW Aman Ullah has been contradicted by

complainant PW.7, according to him 2/3 shots were

fired upon him and same was the case of his father

PW Aman Ullah. PW Aman Ullah was also

confronted with his statement under section 161

Cr.P.C. wherein he has not stated about the kind of

weapon but in his cross-examination he deposed

that he had mentioned Kalashnikovs as weapon of

offence. Both the alleged eyewitnesses have made

number of dishonest improvements just to bring in

line their testimony with other circumstances of the

case, which would be fatal for the prosecution case.

Complainant in his cross-examination admits

presence of “Kaptan Mosque” in his Mohallah and

that Qadar Baba mosque is situated in other


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Mohallah. Both the PWs have not given any

plausible explanation about their presence/offering

prayer in Qadar Baba mosque, leaving the mosque

of their own Mohallah. This aspect of the case also

creates doubt in the prosecution case.

12. Medical evidence negates the ocular

account and the site plan prepared at the pointation

of the alleged eyewitnesses. In the site plan the

deceased has been shown at point No.1 whereas the

appellant-convict at point No.5 towards his left.

Perusal of autopsy report of the deceased reveals

that deceased had received all the entrance wound

from right side except wound No.3. Similarly, the

dimensions of all the entrance wound is 1/2

centimeter, which strongly suggest the occurrence

to be the doing of single accused, but not in the

mode and manner by the alleged eyewitnesses

rather in some other mode which shrouded in


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mystery. It has been held by the apex court in

plethora of judgments that contradiction in medical

evidence and ocular evidence would make the

prosecution story doubtful and it can be held as if

eyewitnesses had not seen the incident.

13. As regard the argument of learned

counsel for the complainant that in case of role of

general firing to accused, it would be immaterial as

to whose fire shot proved fatal because under

section 34 PPC, any criminal act done by several

persons, in furtherance of their common intention,

each of them would be liable for that act in the same

manner as it were done by him alone. No doubt,

section 34 PPC embodies common sense principle

that if two or more persons intentionally did a thing

jointly, it was just the same as if each of them had

done individually, but at the same time, the

prosecution is also bound to prove the overt act on


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the part of each accused done in furtherance of

common intention. To attract the provisions of

section 34 PPC, there must be some proof of overt

act on the part of each accused done in furtherance

of common intention. In the case in hand, though,

according to the I.O. empties of 7.62 bore, recovered

from the spot, had been sent to Firearms expert, but

no such report is available on file, from which it

could be determined as to whether the recovered

empties had been fired from one or more than one

weapon. No crime weapon has been recovered from

direct or indirect possession of the

appellant/convict. He has not made any discovery

nor confessed his guilt before the competent court

of law. Thus, in absence of all these material pieces

of evidence, how participation of the

appellant/convict and his vicarious libility can be

proved. Mere recovery of crime empties from the


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place assigned to appellant would not advance the

case of the prosecution as the same cannot be a

substitute of direct evidence. Rather, such like

evidence is always considered as corroborative piece

which is taken into consideration alongwith direct

evidence. As stated earlier, the direct evidence of

the alleged eyewitnesses is highly improbable and

suffers from material discrepancies creating serious

doubts about their presence on the spot and about

the mode and manner of the occurrence as alleged

by them. As per the dictum of the apex Court,

corroborative evidence is meant to test the veracity

of ocular evidence. Both corroborative and ocular

testimony is to be read together and not in isolation.

Wisdom in this regard may be derived from Ijaz

Ahmed’s case (1997 SCMR 1279 and Asadullah’s

case (PLD 1971 SC 541). It has been held by the

apex Court in case titled, “Saifullah Vs the State”


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(1985 SCMR 410), that when there is no eyewitness

to be relied upon, then there is nothing, which can

be corroborated by the recovery. Similarly, in case

titled, “Riaz Masih Vs the State” 1995 SCMR 1730,

the honourable apex Court held that recovery of

crime weapon by itself is not sufficient for conviction

on murder charge. In case of Siraj Vs Crown (PLD

1956 Federal Court 123), it has been held that

recovery of handle of blood-stained hatchet at the

instance of the accused, when other evidence was

disbelieved, then it was not enough for conviction.

Same view has been expressed by the apex Court in

Saifullah’s case (1985 SCMR 410).

14. Besides, Hidayat Ullah mentioned in the

FIR as eyewitness of the occurrence, has been

abandoned by the prosecution for no good reason.

In the circumstances, adverse inference within the

meaning of Article 129-G Qanun-e-Shahadat Order,


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1984 would be drawn against the prosecution that

had he been produced in the witness box, he would

not have supported the prosecution version. In this

respect reliance can be placed on Master

Muhammad Saddique’s case (2003 MLD 1774).

Master Muhammad Saddique’s case (2003 MLD

1774.

15. So far as the only circumstance against

the appellant/accused i.e. his abscondence is

concerned. He has denied the same in his statement

under section 342 Cr.P.C. Moreso, abscondence

alone, cannot be a substitute for real evidence. It has

been observed by the apex Court in Farman Ali and

others’ case (PLD 1980 SC 201) that abscondence by

itself would be of no avail to prosecution in absence

of any other evidence against the absconding

accused. Mere abscondence of accused would not

be enough to sustain his conviction. Wisdom in this


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regard may be derived from case titled,

“Muhammad Vs Pesham Khan (1986 SCMR 823).

Since there is no credible evidence to support the

prosecution version, so abscondence, itself, would

not be sufficient to prove the guilt of appellant.

According to golden principle of benefit of doubt,

one substantial doubt would be enough for acquittal

of the accused. In the instant case, the prosecution

evidence is highly discrepant and full of infirmities

and as such has created a genuine doubt in our mind

regarding the participation of the appellant in

commission of the crime.

16. It is cardinal principle of administration

of criminal justice that prosecution is bound to

prove its case beyond any shadow of doubt. If any

reasonable doubt arises in the prosecution case,

benefit of the same must be extended to the


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accused not as a grace or concession, but as a

matter of right. Basically, it is the principle enshrined

in Islamic jurisprudence, fourteen hundred years ago

that “it would be better to acquit hundred culprits

than convicting one innocent soul.” Which has now

been transformed into the form of the principle

that, “acquitting by error would be better than

convicting by error”.

17. In wake of our above discussion, we

have reached to an irresistible conclusion that the

prosecution has miserably failed to establish the

guilt of the appellant through cogent and

confidence inspiring evidence of unimpeachable

character, the statements of the alleged

eyewitnesses are pregnant of doubts and suffering

from material contradictions and dishonest

improvements which escaped the notice of the


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learned trial Court and thereby reached to a wrong

conclusion by holding the appellant guilty of the

offence. Resultantly, this appeal is allowed. The

conviction and sentence of the appellant recorded

by learned Trial court are set aside and he is

acquitted of the charge leveled against him. He be

set at liberty forthwith, if not required in any other

case.

18. These are reasons of our short order

of even date, which is reproduced below:-

“For reasons to be recorded later, we

allow this appeal, set-aside the

conviction and sentence of the

appellant Fazal Muhammad awarded

to him by learned Trial

Court/Additional Sessions Judge Lahor

Swabi, vide impugned judgment dated

24.11.2011, in case FIR No.630, dated


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20.05.2010, registered under sections

302/324/34 PPC, at Police Station

Lahor, District Swabi, and hereby

acquit him of the charges leveled

against him in the aforementioned

case. He be set at liberty forthwith, if

not required in any other case”.

Announced.

25.09.2014

J U D G E

J U D G E


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IN THE PESHAWAR HIGH COURT, · 1 *M.Siraj Afridi P.S. D JUDGMENT SHEET IN THE PESHAWAR HIGH COURT,...

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Transcript of IN THE PESHAWAR HIGH COURT, · 1 *M.Siraj Afridi P.S. D JUDGMENT SHEET IN THE PESHAWAR HIGH COURT,...