ABDUL ALEEM Versus State

MUHAMMAD EJAZ SWATI, J.--- The appellants were tried by the learned Additional Sessions Judge, Killa Abdullah at Chaman (hereinafter the "trial Court") in respect of FIR No.90 of 2011 under sections 302, 147, 148, 149 and 34, P.P.C. registered with Levies Station, Chaman on the report of complainant Abdul Samad, whereby the trial Court vide judgment dated 15th July, 2014 (hereinafter the "impugned judgment") found the appellants guilty of the offence under section 460, P.P.C. and sentenced for a period of 10 years each with fine of Rs.50,000 each. In default whereof, the appellants were directed to further suffer SI for six months each with benefit of section 382-B, Cr.P.C.

The complainant has also filed Criminal Revision Petition No.34 of 2014 for enhancement of the sentences awarded to the appellants. Since both the matters arising out of the same judgment, therefore, are being disposed of by means of this common judgment.

2. The facts of the prosecution case are that the complainant Abdul Samad lodged the aforesaid FIR on 23rd May, 2011 at about 9-00 a.m. in respect of the incident taken place on 22nd May, 2011 at about 10-00 p.m. The complainant alleged in the FIR that he is resident of Killi Jabbar and 15/16 days prior to the incident, he had taken a house on rent from one Rehmatullah Salehzai, which is situated at Killi Haji Rangeen and shifted his nephew Abdul Wali and Shamsullah, who were residing therein. It was further alleged that on 22nd May, 2011 at about 10-00 p.m., the accused Haj Bahadur, Muhammad Hanifia, Sabir, Abdul Aleem son of Haji Rangeen and Abdul Qadir along with other four unknown persons after scaling the wall started firing. The shot fired by the absconding accused Hanifia hit the deceased Shamsullah, who died at the spot. Whereas, the shots fired by the other accused could not hit his nephew Abdul Wali and he saved from their firing.

3. During investigation, bloodstained earth, three empties of T.T. pistol, three empties of Kalashnikov and bloodstained clothes of deceased Shamsullah were taken into possession through recovery memo. Exh.P/4-A, Exh.P/4-B and Exh.P/4-C. The medical certificate of injured Abdul Razaq Exh.P/5-A and deceased Shamsullah Exh.P/5-B were obtained.

4. At the trial, the prosecution examined P.W.1 Abdul Samad (complainant), P.W.2 Abdul Wali (eyewitness), P.W.3 Abdul Razaq (eye-witness), P.W.4 Abdul Qadoos (recovery witness of blood stained clothes, blood stained earth and empties), PW-5 Dr. Syed Zia-ud-Din, P.W.6 Abdul Wahab (recovery witness of Art: P/1 and Art.P/2 taken into possession vide recovery memo Exh.P/6-A on 5th October, 2012), P.W.7 Abdul Khaliq Mandokhail (Investigating Officer) and P.W.8 Syed Jalal Agha Naib Tehsildar had taken into possession Art.P/1 and Art.P/2 vide recovery memo. Exh.P/6-A.

5. When examined under section 342, Cr.P.C. the appellants denied the allegations of the prosecution. They did not record their statements under section 340(2), Cr.P.C. however, produced D.W.1 Haji Abdul Ali, D.W.2 Abdul Latif and D.W.3 Muhammad Ahmed, who was also examined as C.W.2.

6. The trial Court vide impugned judgment convicted and sentenced the appellants as mentioned hereinabove.

7. The learned counsel for the appellants contended that the case of the prosecution is false and fabricated; that the incident had taken place on 22nd May, 2011 at about 10-00 p.m., whereas the FIR was registered on 23rd May, 2011 at about 9-00 a.m. after inordinate delay of more than 11 hours; that it was an unseen occurrence and no direct or circumstantial evidence whatsoever nature is available connecting the appellants with the commission of the alleged offence; that no role of firing had been ascribed to the appellant for causing any injuries on the person of the deceased; that the conviction of the appellants under section 460, P.P.C. is not borne out from the prosecution evidence. The learned counsel for the appellants in respect of Criminal Revision Petition No. 34 of 2014 contended that the trial Court exonerated the appellants under section 302, P.P.C. and no case for enhancement of sentence is made out.

The learned Additional P.-G. assisted by the learned counsel for the complainant argued that the prosecution has succeeded in proving the accusation against the appellants beyond any shadow of doubt; that the ocular account furnished by P.W.2 and P.W.3 was further corroborated by medical evidence of deceased and injured Abdul Razaq (P.W.3); that the appellants are connected in the crime and they are liable to be convicted under section 302(b), P.P.C. and their sentences may be enhanced.

8. We have heard the learned counsel for the parties and have gone through the evidence on record. The prosecution besides producing ocular account furnished by P.W.2 Abdul Wali and P.W.3 Abdul Razaq had also relied upon Art.P/1 and Art.P/2. Admittedly, the occurrence had taken place on 22nd May, 2011 at about 10-00 p.m. wherein the deceased Shamsullah met unnatural death, due to firearm wound on the left eye, whilst P.W.3 Abdul Razaq had lacerated wound on occipital area. The Investigating Officer Muhammad Shafi, Tehsildar Chaman after receiving information about the incident reached at the place of incident from where four persons namely Rozi Ahmed, Bacha Khan, Abdul Razaq and Ismail were found and three motorcycles and various arms and ammunitions were also taken into possession vide Art.P/1 and Art.P/2. Article P/1 is the complaint under section 550, Cr.P.C., whilst Art.P/2 is the recovery memo. The contents of Art.P/1 is reproduced as under:

9. The contents of Art.P/1 reveals that the Tehsildar, Chaman on 23rd May, 2011 at about 12-30 a.m. had found four persons including P.W.3 Abdul Razaq and arms and ammunitions in a room of the house adjacent to which the incident had taken place. The deceased Shamsullah and injured Abdul Razaq (P.W.3) were brought to District Headquarter Hospital, Chaman. The testimony of Dr. Syed Zia-ud-Din (P.W.5) reveals as under:

(1) Lacerated wound on occipital area.

(1) Only external examination on.

On examination fire-arm wound on left eye (inlet wound) probable cause of death was massive bleeding due to vital organ (brain).

Injuries duration was: Fresh.

Weapon used: Fire Arm.

10. The aforesaid evidence coupled with Art.P/1 and Art.P/2 indicates that till the aforesaid time and period, it was an un-witnessed occurrence P.W.3 Abdul Razaq at that time had neither nominated any accused person nor disclosed about happening of the incident in the manner as alleged by the prosecution nor he disclosed about his own injury allegedly caused by the appellants. There is no mention of recovery of any empties of T.T. pistol or Kalashnikov from the place of occurrence. Moreover, the FIR was also not registered despite having information about the cognizable offence. In the aforesaid documentary evidence, the appellants were not in the picture. The ocular account came into picture after registration of the FIR Exh.P/7 on the report of P.W.1 Abdul Samad (complainant). The FIR was registered after considerable delay of more than 11 hours i.e. on 23rd May, 2011 at about 9-00 a.m., wherein the complainant stated that he was told by P.W.2 Abdul Wali about the incident. Abdul Wali in his statement deposed that he informed P.W.1 about the incident on 22nd May, 2011 at about 10-30 p.m. The levies station is about 20 minutes distance from the place of occurrence as disclosed by P.W.2 and P.W.3. The complainant had failed to explain the delay in lodging the FIR. The delay of 11/12 hours in lodging of FIR provides sufficient time for deliberation and consultation particularly when the complainant had failed to give reasonable explanation of such delay, which makes dent in the case of prosecution and false implication of the appellants cannot be ruled out. In the case of Akhtar Ali and others v. The State, 2008 SCMR 6, the Hon'ble Supreme Court of Pakistan held as under:

"It is also an admitted fact that the FIR was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. The FIR was also not lodged at police station as mentioned above. 10/11 hours delay in lodging of FIR provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the FIR. It is enough time for complainant to fabricate the story even then the complainant did not nominate appellants and their acquitted co-convicts, therefore, possibility cannot he ruled out qua false implication of the appellants. It is also a settled law that delay of 10/11 hours in making FIR not explained leads to inference that the occurrence was unwitnessed."

11. The statement of P.W.2 Abdul Wali is also not worthy of credence on many counts. Firstly, as per Art.P/1 and Art.P/2, he is not at the place of the incident and the matter was taken by the Levies authorities against unknown persons. Secondly, P.W.2 is the cousin of the deceased Shamsullah. He had neither taken the deceased to hospital nor lodged the FIR when according to him, the Levies Station was at the distance of 20 minutes from the place of incident. Thirdly, his statement under section 161, Cr.P.C. was also recorded on the second day of the incident, which further impeached the credibility of this witness. P.W.3 Abdul Razaq was found at the place of incident in injured condition by the Investigating Officer Muhammad Shafi (not produced) on 23rd May, 2011 at about 12-30 a.m. but he was quite mum till 2nd day of the incident. He neither implicated the appellants nor disclosed about happening of the incident during preparation of Art.P/1 and Art.P/2. After second day of the incident, he recorded his statement under section 161, Cr.P.C. but failed to explain the delay, which further impeached the credibility of these witnesses. In the case of Muhammad Sharifan Bibi v. Muhammad Yasin and others, 2012 SCMR 82, the Hon'ble Supreme Court of Pakistan discarded the statements of such witnesses and held as under:

"........we find that the three witnesses who furnished the ocular account namely P.W.4 Hafiz Shahid Mehmood, P.W.7 Dost Muhammad and P.W.9 Wajahat Ali, if had seen the occurrence, nothing prevented them to get the case registered the same day instead they waited for 2/3 days to have their statements recorded. Their presence becomes further doubtful as none of them accompanied Abdul Latif deceased to the hospital for postmortem examination."

12. The other aspect of the instant case, which makes dent in the prosecution case is that from the place of incident four persons including P.W.3 Abdul Razaq were found and as per Art.P/1 and Art.P/2 T.T. pistol and Kalashnikov along with several rounds were recovered, which were taken into possession. Subsequently, vide recovery memo Exh.P/4 empties of T.T. pistol and Kalashnikov were also recovered from the place of incident. During investigation empties and recovered weapons were not sent to the Forensic Sciences Laboratory (FSL) for matching to ascertain as to whether the empties recovered from the place of incident were fired from the said weapons or otherwise. Moreover, none of the said weapons was produced by the prosecution before the trial Court. It is astonishing that during investigation only Art.P/1 and Art.P/2, wherein the detail of said arms and ammunitions is mentioned had been taken into possession vide recovery memo. Exh.P/6-A on 15th October, 2012 and there is also no explanation about non-production of the said arms and ammunitions including their motorcycles. The Investigating Officer Muhammad Shafi, Tehsildar, who conducted the investigation of the case, did not appear nor any explanation had been put forth by the prosecution for his non-examination. The prosecution has also failed to produce the other three most important witnesses namely Rozi Ahmed, Muhammad Ismail and Bacha Khan, who according to Art.P/1 and Art.P/2 were found, where the occurrence had taken place, therefore, adverse inference under Article 129(g) of the Qanun-e-Shahadat Order, 1984 (hereinafter the "Order, 1984") against the prosecution is to be taken. Reference in this context is made to the case of Riaz Ahmed v. The State, 2010 SCMR 846, wherein it was held as under:

"One of the eye-witnesses Manzoor Hussain was available in the Court on 29-7-2002 but the prosecution did not examine him, declaring him as unnecessary witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) Article 129 of Qanun-e Shahadat Order, 1984 can fairly be drawn that had the eye witness Manzoor Hussain been examined in the Court his evidence would-have been unfavourable to the prosecution."

13. The other aspect of the case, which further makes the prosecution doubtful, is that none of the prosecution witnesses ascribed any role of firing to the appellants in respect of causing firearm injury to the deceased. The trial Court also exonerated the appellants from such liabilities. The conviction of the appellants under section 460, P.P.C. is not borne out from the evidence on record. Admittedly, the appellants were charged under sections 302, 148 and 149, P.P.C. The testimony of the prosecution witnesses is silent in respect of offence under section 460, P.P.C. The circumstances arising out of section 460, P.P.C. were also not put to the appellants during their statements under section 342, Cr.P.C., therefore, such circumstances cannot be used against them and the conviction and sentence awarded to the appellants under section 460, P.P.C. by the trial Court is unwarranted and not sustainable. Reference in this context is to be made to the case of Muhammad Shah v. The State, 2010 SCMR 1009, wherein the Hon'ble Supreme Court of Pakistan held as under:

"It is important to note that all incriminating pieces of evidence, available on the record, are required to he put to the accused, as provided under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re examination are also required to be put to the accused, if these are against him, because the evidence means examination-in -chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e- Shahadat Order, 1984. The perusal of statement of the appellant, under section 342, Cr.P.C, reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same was abandoned by him. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained."

In the instant case, there has been misreading and non-reading of evidence and it has indeed occasioned failure in the correct appraisal of the evidence.

The upshot of the above discussion is that there being no judicial certainty and circumstantial guarantee of the participation of the appellants in the occurrence to uphold their conviction. Therefore, the instant Criminal Appeal No. 194 of 2014 is allowed, the impugned judgment dated 15th July, 2014 passed by the learned Additional Sessions Judge, Killa Abdullah at Chaman is set aside to the extent of appellants and they are acquitted of the charge. The appellants Abdul Aleem, Sabir sons of Rangeen and Abdul Qadir son of Shamsuddin shall be released forthwith in case FIR No. 90 of 2011 registered with Levies Station, Chaman District Killa Abdullah, if not required in any other case. With the result. the Criminal Revision Petition No. 34 of 2014 is dismissed.

SL/60/Bal. Appeal allowed.