TAZEEM AKHTAR Versus THE STATE

ABDUL SHAKOOR PARACHA, J.‑‑‑ Criminal Appeal No.87 and Murder Reference No. 113 of 1995 and Criminal Revision No.71 of 1996 have been taken up together and are being disposed of through this single judgment as all of them arise out of a common judgment dated 7‑5‑1995 passed by Additional Sessions Judge, Islamabad, whereby Tazeem Akhtar, appellant under section 302, P.P.C. was sentenced to death as Qisas with compensation of Rs.50,000 to be paid to the legal heirs of the deceased, but Asif Beg and Gul Bahar, co‑accused of the convict were acquitted of the charge.

2. The prosecution case in brief, as disclosed in complaint (Exh.P.A) by Mukhtar Ahmad (P.W.9) is that he alongwith Subedar Sher Afzal, Ajmal Khan, Abdur Rashid son of Sher Khan, and Sher Akbar son of Said Akbar while boarding in Jeep No.2682‑KTA on 16‑11‑1992 at 7‑30 A.M. were going to attend the Court proceedings bf a murder case. Mukhtar Ahmad, complainant, was driving the jeep. Sher Afzal deceased was his brother. Abdur Rashid was sitting on the front seat adjacent to the driving seat. On the back seats, Sher Akbar was sitting on the right side, whereas Sher Afzal and Ajmal Khan were sitting on the left seat. When they crossed the house of Sabir Hussain at link road, Nai Abadi, Village Kirpa, Tazeem Akhtar, Asif Beg sons of Muhammad Sadiq and Gul Bahar son of Sajawal Khan all armed with 7 MM rifles, emerged at the road. Gul Bahar fired his 7MM rifle shot hitting under the front screen of the jeep. Tazeem Akhtar fired a 7 MM rifle shot which passed through the front screen and hit on the left chest of Sher Afzal, who was seriously injured. Asif Beg fired a shot hitting on the front screen of the jeep. Meanwhile, the jeep went out of control and went down the road, which was managed with difficulty. Thereafter the accused persons resorted to indiscriminate firing towards the left side of the jeep. During the firing Mukhtar Ahmad and his companions drove away the jeep and saved themselves.

Motive for the occurrence was allegedly previous murder of Muhammad Ishaq, brother of Tazeem Akhtar and Asif accused. It is alleged that this occurrence was motivated on the instigation of Zahid Hussain son of Kala Khan.

3. During the course of preliminary investigation Muhammad Yousaf, S.I., prepared the inquest report (Exh.P.K) of the dead body and despatched it with application (Exh.P.K/1) to the Medical Officer for post mortem examination at District Headquarter Hospital, Rawalpindi. Thereafter the S.I. with the eye‑witnesses went to the place of occurrence. During spot inspection two crime empties (Exh.P.5/1‑2) were secured and sealed into a parcel vide memo. Exh.P.F, attested by Ajmal Khan, P.W.10, and Abdur Rashid. The Jeep was taken into possession from Japan Road vide memo. Exh.P.D. The recovery was witnessed by Abdur Rashid and Mukhtar Ahmad (P.W.9). The jeep had firing marks. Blood‑stained mat and carpet of the jeep were also secured and sealed into a parcel. The remaining portion of the carpet was separately secured and sealed vide memo. (Exh.P.G) which was attested by Sher Akbar and Ajmal Khan (P.W.10). One lead of a bullet and five bullet pieces were secured from inside the jeep, which were sealed into parcel vide memo. Exh.P.H. Blood‑stained clothes of the deceased (Exh.P.1 to P.3) and foot‑wear (Exh.P.4/1‑2) of the deceased, received from the Medical Officer, were taken and sealed into parcel vide Exh.P.E. The memo. was signed by Mukhtar Ahmad, P.W.9 and Abdur Rashid. Appellant Tazeem Akhtar was arrested on 9‑12‑1992. While being interrogated, he led to the recovery of 7 MM rifle (Exh.P.6) from a room of his house. The recovery was witnessed by Musharraf and Mushtaq (P.W.11). The rifle was sealed into a parcel vide memo. Exh.P.J. Sketch Exh.P.J/1 was prepared in respect of the place of recovery. On 2.4‑12‑1992 the Patwari prepared the site‑plan in duplicate (Exh.P.B and Exh.P.B/1). The S.I. recorded the marginal notes in red ink and signed it. He recorded the statements under section 161 of the P.Ws. and challaned the appellant on completion of investigation proceedings. During investigation, participation of Asif Beg and Gul Bahar was found doubtful as reported in incomplete report under section 173, Cr.P.C., but both of them were challaned and placed at the mercy of the Court subject to trial. Zahid Hussain was found innocent and placed in column. No.2 of the challan. However, he was not challaned in the final report under section 173, Cr.P.C.

4. Tazeem Akhtar, Asif Beg and Gul Bahar were charge‑sheeted by the learned trail Court. All the accused denied the charges. They pleaded not guilty and faced the trial.

The prosecution in order to prove its case examined 13 witnesses in all. Out of them, Dr. Muhammad Arshad, P.7 conducted the post‑mortem examination on the dead body of Subedar Sher Afzal and noticed the following injuries on his person:‑ i) A wound of entry on the left chest front measuring 2 c.m. in diameter, it was 7 c.m. below the left nipple and 10 c.m. from ii) A wound of exit 2 c.m. x 2.5 c.m. on right lower chest back. Tissues were protruding, through the wound which was 10 c.m. from spine and 11 c.m. above the iliac chest. There were corresponding entry and exit holes at Qamiz and Bunyan, worn by the deceased.

All the injuries were anti-mortem and had been caused with fire‑arm‑. These injuries were sufficient to cause death in the ordinary course of nature.

6. Mukhtar Ahmad, P.W.9, and Ajmal Khan, P. W.10, furnished the eye witness account of the occurrence. Mukhtar Ahmad P.W.9, repeated the statement which he had already made in Exh.P.A, on the basis of which formal F.I.R. Exh.P.A/1 was registered. According to him, all the accused armed with 7 MM rifles came in front of the jeep on the road. First shot was fired by Gul Bahar accused with his 7 MM rifle, which hit the body of the jeep below the wind screen second shot was fired by Tazeem Akhtar appellant with his rifle, piercing the screen and hitting Sher Afzal deceased on left side of his chest who became injured due to this fire‑shot; third shot was fired by Asif Beg accused with his 7 MM rifle hitting the wind screen and during this the jeep became uncontrollable and slipped downward the road, and the jeep was controlled by the witness with great difficulty. Thereafter the accused resorted to indiscriminate firing hitting the jeep on its left side. P.W.10 Ajmal Khan also made his statement on similar lines, and according to him also all the accused persons came armed with 7 MM rifles. They started firing towards the jeep. Gul Bahar accused fired the first y not with his rifle, which hit the body of the jeep and thereafter accused Tazeem Akhtar fired a shot which pierced the wind screen of the jeep and then hit Sher Afzal deceased on the left side of his chest near the armpit and went out from the right side of his chest. The third shot was fired by Asif Beg accused hitting the wind screen of the jeep.

7. Out of remaining, prosecution witnesses, Muhammad Bashir, S.I., the then Moharrir at Police Station Sihala, P.W.1 recorded formal F.I.R. Exh.P.A/1 on receipt of complaint Exh.P.A. Muhammad Azeem, Patwari, P.W.4 prepared the site‑plan Exh.P.B and P.B/1. P.W.11 Mushtaq Ahmad attested the recovery memo. Exh.P.J of rifle which the appellant Tazeem Akhtar got effected from his house P. W.12 Muhammad Yousaf, S.I. investigated the case, arrested the accused and submitted the challan in the Court. The remaining witnesses are more or less of formal nature, therefore, need not be discussed.

8. On the conclusion of the prosecution evidence, the learned Prosecutor tendered in evidence report of the Chemical Examiner Exh.P.M, report of the Serologist Exh.P.N and reports of Forensic Science Laboratory Exh.P.O. and Exh.P.P and closed the prosecution case.

9. All the accused examined under section Tazeem Akhtar, appellant, when confronted with the allegation against him, denied the same and stated that the witnesses had deposed against him falsely and the case has been brought against them falsely in order to pressurize them to compromise with the complainant party regarding the case of murder of his brother Muhammad Ishaq registered against Dalil Akbar, son of maternal aunt of both the eye‑witnesses. The appellant claimed that he is innocent. However, no evidence in defence was produced nor he appeared as his own witness as envisaged in section 340 (2), Cr.P.C. The remaining accused came up with straight denial and pleaded their false implication in the case.

10. The learned Additional Sessions Judge, Islamabad, vide his judgment dated 7‑5‑1995 convicted the appellant under section 302, P.P.C. and sentenced him to death. He was also directed to pay compensation of Rs.50,000 to the legal heirs of the deceased Sher Afzal. The compensation amount was ordered to be recovered as arrears of land revenue, and in default thereof, he was to suffer rigorous imprisonment for six months. However, benefit of doubt was extended to Asif Beg and Gul Bahar and they were acquitted of the charge. Hence this appeal by the convict Tazeem Akhtar, whereas the Reference has been sent by the trial Court and complainant Mukhtar Ahmad has also filed Criminal Appeal No.87 of 1996 against the acquittal of Asif Beg and Gul Bahar, co‑accused of the appellant, as well as Criminal Revision No.71 of 1996 seeking enhancement of the compensation amount, awarded by the trial Court.

11. Ch. Tariq Azam, Advocate, learned counsel for the appellant has argued that there is admitted enmity between the parties on the record due to the murder of Muhammad Ishaq, brother of the appellant, and both the witnesses namely Mukhtar Ahmad and Ajmal Khan, P.Ws.9 and 10, being real brothers of deceased Sher Afzal had motive to falsely implicate the appellant in this case. Their testimony on ocular account and recovery of weapon from the appellant cannot be accepted and relied being related, inimical and interested, having motive to falsely implicate the appellant. Reliance has been placed on:‑

PLD 1960 SC 387 (Niaz v. The State).

PLD 1962 SC 269 (Nazir and others v. the State).

PLD 1976 SC 452 (Muhammad Sharif v. Javed alias Jeda Tedi and 5 others).

Further contends that there is direct conflict of ocular evidence with the medical evidence on the record therefore the case of the prosecution is of doubtful nature appellant is entitled for acquittal as slightest doubt arising out of the prosecution case must go to the appellant, Further contends that there is no independent corroboration available on record of evidence/ocular account given by P. Ws.9 and 10 Mukhtar Ahmad and Ajmal Khan therefore, the conviction of the appellant by the Additional Sessions Judge was illegally recorded. He has relied on:‑

PLD 1991 SC 1090 (Muhammad Sharif v. Zulfiqar and 4 others)

Finally, he has argued that the recovery of 7 MM rifle is not helpful to the prosecution as the trial Court has not believed it. It is argued that possibility that the occurrence was unseen cannot be ruled out and the appellant was therefore, entitled for acquittal. Finally he argued that on the same evidence other two co‑accused, namely, Asif Beg and Gul Bahar have been acquitted by the trial Court and that an other accused, namely, Zahid, was declared innocent during investigation.

12. Raja Muhammad Anwar, Senior Advocate, assisted by Raja Shafqat Khan Abbasi, Advocate, on behalf of the complainant has argued that the ocular account has no inherent infirmities which could be detrimental to the prosecution case, and that the relationship by itself is no ground to discard the confidence‑inspiring evidence in spite of existing earlier enmity. They further argued that the recovery of 7 MM rifle corroborates the ocular account and that some concession from the official witnesses cannot be considered a piece of evidence and they are not relevant for the purposes of considering the case of the appellant for acquittal. Finally they argued that the appellant Tazeem Akhtar remained fugitive from law for a sufficient time and this is the best piece of evidence which can be taken as corroborative evidence against the appellant. They argued that the medical evidence and the motive, as set up by the prosecution, has proved the case against the appellant.

13. We have gone through the evidence and other relevant material on the file with the help of the learned counsel for the parties. After very careful consideration, we find that the prosecution case against the appellant and his co‑accused is that the complainant alongwith Sher Afzal, Ajmal Khan, his brothers, and Abdur Rashid and Sher Akbar was going for pursuing the murder case in the District Court on Jeep No.2682‑KTA and when they crossed the link road, Nai Abadi, Village Kirpa near the house of Sabir Hussain, at that time Tazeem Akhtar appellant alongwith his co- accused Asif Beg and Gul Bahar all armed with 7 MM rifles came in front of them and all of them resorted to firing. It is alleged that second shot was fired by Tazeem Akhtar with his 7 MM rifle which piercing the screen of the jeep hit Sher Afzal on the left side of chest who got injured due to this fire shot. The description of the injuries as given by the doctor shows that the injury sustained by the deceased was not from the front side of the body. Dr. Muhammad Arshad, P.W.7 while appearing in Court has categorically stated that the direction of the injury was from upward to downward and also from left to right side. He stated in the Court:‑

"I cannot rule out the possibility that the assailant fired at the deceased about 8 or 10 feet higher level from him."

After examining the injuries and the statement of the doctor, it appears that the direction of the injury was from upward to downward and also from left to right side and that the assailant fired at the deceased about 8 or 10 feet higher level from him. The impression that the assailant fired at the deceased‑about 8 or 10 feet higher level from him and not from the front side, as alleged by the prosecution, is further fortified by the fact that when we take into account the exit wound, there is one entry wound and one exit wound noted by the doctor, which have been reproduced above. The statement of the doctor and the medical evidence leave no doubt in believing that somebody had fired at the deceased about 10 feet higher level from him. The site plan Exh.P.B and. P.B/1 prepared by P.W.4 Muhammad Azeem Patwari, shows that the assailant fired from point '6'. He has admitted that point No.6 shown by him in the site‑plan was a depressed place. Then he stated that:‑

" Volunteered this place was at a higher level from the rest of the area around it."

In case reported as Saindad and 2 others v. The State (1972 SCMR 74) it has been held by the Supreme Court:‑

"Section 302‑Murder trial‑‑Benefit of doubt‑‑Conviction based on oral testimony of eye‑witnesses‑ Medical evidence inconsistent with account of occurrence as given by eye‑witness Accused in circumstances, given benefit of doubt and acquitted.

The medical evidence, therefore, strongly belies the prosecution version on this point. We have lifted a paragraph from the book' namely "Fire-arm and Forensic/Ballistic" by Major Sir Gerald Burrad, wherein it has been observed:‑

"Bullet fired from fire‑arm generally tends to continue in straight line from point of entrance to point of exit, such wounds, however, very frequently are not straight but curved due to deflection of missile by slightest obstacles."

According to the witnesses, all the three accused resorted to firing and thereafter caused injuries to the deceased by Tazeem Akhtar on his person. It appears that the witnesses had not seen the occurrence. They were in the hospital where the dead body was taken, and then on the arrival of the police after the investigation and noting down the number of injuries on the person of the deceased all the three accused were implicated and each and every assailant was attributed specific role. It is well‑established rule of law that F. I. R. recorded after preliminary investigation is got admissible in evidence. This Court in Anwar v. The state (1975 P.Cr.LJ 750) and Muhammad Hanif v. The State (PLD 1977 Lah. 1253) held that no reliance can be placed on the F.I.R. which has been recorded after preliminary investigation.

The learned trial Court did not believe the prosecution version and discarded the testimony of the witnesses vis‑a‑vis two co‑accused of the appellant who were sent up to face the trial. He however, proceeded to believe the version of the prosecution against the appellant only on the ground that he had caused injuries to Sher Afzal with his 7 MM rifle.

It is true that according to the prosecution, fatal injury was caused by the appellant, and in some cases it has been held that the accused responsible for causing the injury is liable for conviction. But, in the instant case, however, the matter is different. According to both the eye‑witnesses, who are real brothers of the deceased all the three accused persons came on the road in front of the jeep, opened firing which hit on different parts of the screen and body of the jeep, and one bullet hit Sher Afzal deceased, which caused his death. Eye‑witnesses have been found to be false qua the implication of the co‑accused therefore, their testimony has to be assessed and evaluated with extra caution against the appellant. Both the eye‑witnesses, as stated above, are inimical and interested ones. It is true that relationship of the deceased with the witnesses is no ground to discard their testimony, but in our view, in this case is that the eye‑witnesses had the motive to implicate the appellant, therefore, they are interested witnesses. Interested witness has been defined in case reported as Niaz v. The state (PLD 1960 SC ' Pak' 387) as follows:‑

"Whenever interested persons claiming to be eye‑witnesses of an occurrence, charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw occurrence."

This definition of interested witnesses has been relied by the honourable Supreme Court in case reported as Nazir and others v. The State (1962 SC 269) and Muhammad Ali v. The State (1985 SCMR 203). In Nazir's case (Supra), 'interested' witness has been defined as under:‑

"Interested" witness‑‑"One who has a motive for falsely implicating an accused person."

The Supreme Court of Azad Jammu and Kashmir in a case reported as Abdul Rashid and others v. Abdul Ghaffar and others (2001 P.Cr.LJ page 524) has held that:‑

"Interested witness is one who falsely implicates and innocent person in the commission of offence with ulterior motive."

Similar view has been adopted by Quetta Bench of Baluchistan High Court in case reported as Durani Bibi v. Jehanzaib and others (PLD 2001 Quetta 103).

We are conscious of the law laid down by their Lordships of the Honourable Supreme Court in Tawaib Khan's case (PLD 1970 SC 13) and Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others (2001 P.Cr.LJ 524 SC AJ&K) that the Court has to sift the grains of truth from the chaff of falsehood. However, the principle, which has already been laid down earlier in case PLD 1959 P.C 24 that credibility of witnesses is indivisible and if a witness is found to be false against one accused, he cannot be disbelieved against the other accused. However, the doctrine of 'falsus in uno falsus in omnibus' was held to be of no useful application in cases of Tawaib Khan and Abdur Rashid, referred to above. In order to do complete justice and to ensure that the real culprit may not escape from punishment it was provided that the grain may be sifted from chaff, but if it is found that it would be unsafe to sift the grain from the chaff and the testimony of the witness is not confidence‑inspiring, then it will be unsafe to record conviction by singling out one of the accused persons as real culprit merely on the ground that he was allegedly attributed the fatal injury.

Unfortunately, when the prosecution falsely implicates innocent persons alongwith guilty ones at times it becomes extremely difficult rather to pick up real culprits out of various accused persons.

As discussed above, we are of the firm view that the deceased lost his life due to single‑shot, According to the prosecution, all the three persons resorted to firing. In this situation, it will be highly unsafe to convict the appellant merely because he is stated to be the main culprit who was attributed the injury.

Apart from what has been observed above, we have not been persuaded to believe that the prosecution has successfully established the motive. Mere assertion that the criminal litigation is pending between the parties and the occurrence took on account of a case pending adjudication, the defence version as put by the learned counsel for the appellant has some force, because it is admitted position that the complainant party was involved in the murder of Muhammad Ishaq, real brother of the appellant, and this aspect of the case cannot be completely ignored or neglected. It has been ruled in case reported as Allah Bakhsh and another v. The State (PLD 1978 SC 171) that motive is a double edged weapon, therefore, it is common in the society that the motive may be a cause of committing an offence of murder and can be equally a base for fabricating a case or implicating the enemies in the cases of capital charge. The F.I.R. in this case was not recorded at the spot or by the complainant by going to the police station. It is strange that all the witnesses alongwith the Police Inspector were present at the Hospital when the complaint Exh.P.A was recorded by the S.‑I. P.W. I S.‑I. Muhammad Bashir has destroyed the case of the prosecution when he has stated in cross‑examination that, he had received six parcels at 11 A.M. on 16‑11‑1992. The F.I.R. was recorded on 16‑11‑1992 at 11‑20 A.M., whereas the parcels were received by Muhammad Bashir, S.I., prior to registration of the case. The jeep was recovered from Japan Road. It has not been explained by the prosecution how the jeep reached Japan Road when the occurrence took place near the house of Sabar Hussain, and the injured Slier Afzal was taken by the complainant to Hospital. The recovery of 7 MM rifle from the house of Tazeem Akhtar appellant is of no help to the prosecution because the recovery has not been witnessed by any independent witness from the locality. The recovery memo has been signed by Ajmal Khan, real brother of the deceased. Therefore, this is a case full or doubts.

In case reported as Ghulam Abbas and others v. The State (2001 PCr.LJ 1672) it has been observed that:‑‑

"Not necessary that many reasons should exist for creating doubt even a single infirmity creating a reasonable doubt was sufficient to discredit the prosecution story and benefit thereof was to be extended to the accused."

In the case reported as Muhammad Luqman v. The State (PLD 1970 SC 10) the Honourable Supreme Court has ruled:‑

" ....finding of guilt against an accused cannot be based merely on the high probabilities that may be inferred from evidence in a given case -------Mere conjectures and probabilities cannot take the place of proof-----otherwise the golden rule of 'benefit of doubt' will be reduced to a naught."

The above rule that 'benefit of doubt' is to be extended in favour of the accused was based on the case reported as Sikandar v. The State (PLD 1963 SC 17), where it was held that:‑

"Benefit of doubt to accused."

In case reported as Bashir Ahmad and another v. The State (1974 PCr. LJ Lahore 385) it was held that:‑

"Murder case‑‑Benefit of doubt‑ Benefit of doubt arising on any material point‑‑Must be given to accused."

We are not persuaded with the argument of the learned counsel for the complainant that there was absconsion of the appellant in this case. Even otherwise, in cases reported as Farzand Ali v. The State (2001 PCr.LJ 1601) and Khan Akbar v. Mohib Gul and another (2001 PCr.LJ 1617) it has been ruled that, " Abscondence of accused at the most can be taken as corroborative of the charge and the evidence of the charge."

Concluding the above discussion, we find that the eye‑witness account neither finds support from the medical evidence nor from the motive. There is also no other credible evidence by way of recovery etc. We are, therefore, constrained to extend benefit of doubt to Tazeem Akhtar appellant as well. Resultantly, Criminal Appeal No.87 of 1995 filed by appellant Tazeem Akhtar is allowed, his conviction and sentence awarded by the Additional Sessions Judge, Islamabad vide his judgment dated 7‑5‑1995 in case F.I.R, No.48 dated 14‑5‑1992, registered at Police Station Sihala, District Islamabad under sections 302/34, P.P.C., is set aside. He is acquitted of the charge against him. He shall be released from jail forthwith if not required in any other case. Murder reference is answered in the negative.

For the same reasons, Criminal Appeal No.87 of 1996 and Criminal Revision No. 71 of 1996 filed by complainant Mukhtar Ahmad are dismissed.

Death sentence not confirmed.

N.H.Q/T‑78/L Appeal accepted.