Muhammad Arif Versus State

Muhammad Ayub Khan Tareen, J .--- This judgment disposes of Criminal Appeal No.(S)74/2022 filed by the appellants against the judgment dated 13th May 2022 (hereinafter "the impugned judgment") passed by learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali in Session case No.113/2021 (FIR No.33/2021, Police Station Manjhoo Shori district Nasirabad) whereby the appellants Muhammad Arif son of Dad Muhammad alias Dur Muhammad and Ali Gul son of Ali Muhammad were convicted under sections 302 (b) P.P.C and sentenced to suffer life imprisonment each and to pay compensation Rs.500,000/- (Rupees Five Lacs) to the legal heirs of deceased Ali Asghar as envisaged under section 544-A, Cr.P.C; in default of payment of compensation amount, the appellants to further suffer simple imprisonment for six (06) months with benefit of section 382-B, Cr.P.C.

2. Facts of the case are that in pursuance of application submitted by PW-1 Muhammad Murad to SHO Police Station Manjhoo Shori (Ex: P/1-A), a criminal case, vide FIR No.33/2021 dated 21.06.2021 was registered with Police Station Manjhoo Shori district Nasirabad with the averments that he, along with his family is resident of Goth Haji Khan Jattak; that on 21.06.2021, he, along with his son Ali Asghar was on a motorcycle, while his cousins Gul Hassan son of Dur Muhammad and Sona Khan son of Samandar Khan caste Jattak were on a separate motorcycle and were going to Goth Mir Muhammad Samalani for some personal work; that at about 08:30 a.m. as soon as they reached Goth Mir Muhammad Samalani; Muhammad Arif son of Dad Muhammad, Muhammad Siddique son of Ghulam Nabi, Ali Gul son of Ali Muhammad, Khair Ullah son of Luqman caste Zehri residents of Goth Wali Muhammad Zehri boarding on two motorcycles came from behind who were known to us; that Ali Gul and Muhammad Arif were armed with T.T pistols; that Muhammad Arif made Lalkara to my son Ali Asghar and said that he is Siahkar and he will not go alive; that in order save our lives, we entered the courtyard of Muhammad Murad Samalani's house; that Ali Gul and Muhammad Arif, who were chasing them with TT pistols in their hands, also entered the courtyard and with murderous intent, fired directly on his son Ali Asghar in front of them; that due to bullet injuries his son fell down on the ground; that they were empty handed and could not resist; the accused persons after causing serious injuries to his son fled away from the place of occurrence and that his son who was seriously injured died at the spot, hence this case.

3. In pursuance of above FIR, investigation was started by PW-7 SI Ali Gohar. The Investigating Officer ('I.O') went to the place of occurrence, prepared site map and site inspection memo, took into possession the blood stained earth/clothes, collected crime empties; sent the dead body of deceased Ali Asghar to District Hospital Dera Murad Jamali for postmortem; the accused persons were arrested; the IO recorded the statements of the witnesses under section 161 Cr.P.C and after completion of investigation submitted Challan before the trial Court. The trial commenced, charge was framed and read over to the appellants, to which they pleaded not guilty and claimed trial.

4. At the trial, the prosecution in order to prove their case, produced and examined the following witnesses:

PW-1 Muhammad Murad. He is complainant of the case.

PW-2 Sona Khan. He is eye-witness of the occurrence.

PW-3 Gul Hassan. He is eye-witness of the case.

PW-4 Constable Muhammad Ibrahim. He is witness of recovery memo of blood stained clothes of deceased.

PW-5 Constable Abdul Raheem. He is witness of recovery memos.

PW-6 Dr. Nasrullah Mengal. He is Medical Officer District Headquarter Hospital Dera Murad Jamali.

PW-7 SI Ali Gohar. He is Investigating Officer of the case.

5. The appellants were examined under section 342, Cr.P.C, wherein they did not plead guilty and claimed trial. However, they did not opt to record their statements on Oath nor produced any witness in their defense.

6. After concluding evidence and hearing arguments, the trial Court awarded conviction to the appellants as mentioned in para-1 above, hence this appeal.

7. Learned counsel for the appellants stated that the appellants have falsely been implicated in the instant case; that nothing incriminating is available on record to connect the appellants with the commission of the offence; that there are glaring contradictions in the statements of the prosecution witnesses; that the prosecution evidence is suffering from infirmities; that the prosecution has failed to prove the charge against the appellants beyond any shadow of doubt; that benefit of doubt has not been extended in favour of the appellants by the trial Court and that the conviction awarded to the appellants is result of misreading and mis-appreciation of evidence by the trial Court.

8. Learned Additional Prosecutor General (on video link) stated that sufficient convincing incriminating evidence is available on record to connect the appellants with the commission of the offence; that there exist no doubt in the case of the prosecution; that the prosecution has proved the charge against the appellants beyond any shadow of doubt and that the conviction awarded to the appellants is based on proper appreciation of evidence by the trial Court.

9. While supporting the impugned judgment passed by the trial Court learned counsel for the complainant stated that after proper appreciation of evidence, the trial Court has rightly awarded conviction to the appellants under section 302 (b) P.P.C by passing an elaborate and speaking judgment.

10. We have heard learned counsel for the appellants, learned counsel for complainant and learned Additional Prosecutor General (on video link) and gone through the available record with their assistance.

11. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features. Admittedly, it is an unfortunate incident in which son of the complainant lost his life after sustaining firearm injuries, but to put the fact and circumstances in equilibrium with the touchstone of safe administration of justice, we have scrutinized the whole whale evidence on record while weighing the same on judicial parlance. It has been observed by us that the prosecution has led evidence in the shape of ocular account, medical evidence, recovery as well as circumstantial evidence.

12. As far as merits of the case is concerned, we have observed that prosecution in support of its case produced PW-1 Muhammad Murad, PW-2 Sona Khan, PW-3 Gul Hassan who were eye-witness of the alleged occurrence but all the above witnesses are closely related to deceased Ali Asghar. PW-1 Muhammad Murad is father of the deceased, whereas PW-2 and PW-3 are paternal uncles of the deceased, therefore, for safe dispensation of justice, their evidence will have to be appreciated with care and caution.

No doubt the evidence of related witnesses cannot be discarded on the ground of its being related to the victim, but if it is found that the testimony of the related witnesses got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter as such, which cannot be expected from a prudent person, then under such circumstances the evidence furnished by the related witnesses cannot(sic) be easily discarded.

13. At the touchstone of above, we now take into consideration the testimonies furnished by the above witnesses. It reflects from the record that the occurrence took place on 21.06.2021 at 08:30 am, and on the same day at 09:10 a.m. the FIR was lodged. The complainant stated that he himself went to the Police Station and submitted application for registration of FIR and the said application was written by a police official present in police station.

14. We have observed that the deceased Ali Asghar met with unnatural death at Goth Mir Muhammad and according to the complainant, on 21.06.2021 at about 08:30 a.m, he along with his son Ali Asghar and his cousins Gul Hassan and Sona Khan were travelling on two separate motorcycles to Goth Mir Muhammad for personal work, while they were on their way, Muhammad Arif, Muhammad Siddique, Ali Gul and Khair Ullah approached them on two motorcycles. Ali Gul and Muhammad Arif, armed with pistol called to his son Ali Asghar referring to him derogatorily as "Siahkar" they then began firing at Ali Asghar, resultantly, he become injured, as a consequence of his injuries, Ali Asghar fell to the ground and subsequently succumbed to his wounds. It is important to note that initially the complainant alleged that while riding on motorcycle on the road to Goth Mir Muhammad Sumalani, they were attacked by the assailants. However, during cross-examination, in response to a question he stated that the incident actually took place inside the house of Muhammad Murad Sumalani. This suggests that the complainant have tried to align his testimony with the investigation as the blood stained earth and crime empties were collected from inside the house of Muhammad Murad Sumalani. Subsequently, the other two eye-witnesses were also presented in similar manner to corroborate the crime scene details. The complainant further stated that he left the dead body at the spot and went to the police station to lodge the report. The motive behind the occurrence is stated to be Siah Kari alleged against the deceased Ali Asghar.

The pivotal question to be determined by us is whether the alleged eye-witnesses were present at the place of occurrence at the relevant time and had witness the tragedy as claimed by them and whether their conduct is acceptable to a common prudence despite changing the place of occurrence and brining it in-line with the site map as discussed above, in an attempt to unearth the answer to this crucial question, we have minutely examined the statements and found that though they have stated to be present at the scene of occurrence at the relevant time, but their own conduct absolutely justifies that they were not present at the spot. Further they did not attempt to rescue deceased Ali Asghar. Reliance in this regard is placed on the case of Zafar Ali Abbasi and another v. Zafar Ali Abbasi and others, 2024 SCMR 1773, wherein it has been held as follows:

"2 ..The prosecution's case rests upon the statements of the complainant and Raja Azhar Azeem, who appeared as PW-1 and PW-2 respectively before the Trial Court. According to them, they were about 20 paces away from the deceased and the appellant, when they saw both of them were altercating. In reply to a question, the complainant stated that after 10 seconds, the appellant inflicted first blow upon the deceased. Admittedly, the appellant was alone, whereas, the complainant, PW-2 and the deceased were three in numbers. Taking the words of the complainant that he and the eye-witness were 20 paces away from the appellant, they could have easily reached the appellant and overpowered him within few seconds, but no attempt was made by them to avert the attack. It is hard to believe that life of the brother and uncle of PW-1 and PW-2 respectively, was in danger, why they did not react immediately? Had the complainant and his nephew been present at the time and place of the occurrence, the appellant could have been apprehended before causing any injury to the deceased. Despite the fact that the complainant and his companion were 20 paces away from the appellant, they did not make any attempt to catch hold of him, even after causing injuries to the deceased".

15. The complainant (PW-1) stated before the trial Court that after receiving injuries he left the dead body of his son Ali Asghar on the spot and went to the police station for lodging of the FIR. According to PW-7, Ali Gohar SI/IO of the case, he along with other police officials reached at the spot at 10:30 a.m. where the dead body of the deceased was lying. He further stated that after taking blood stained earth, empties, and preparing of site map, he sent the dead body to the Hospital for postmortem. However, according to medical certificate (Ex.P/6-A) issued by PW-6/Dr. Nasrullah Mengal, Medical Officer, District Headquarter Hospital, Dera Murad Jamali, the dead body was received by District Headquarter Hospital Dera Murad Jamali at 10:30 a.m, which was brought by Constable Muhammad Ibrahim referred by SHO of Police Station Manjhoo Shori.

16. The alleged occurrence took place at 08:30 a.m, and the dead body was received at the hospital at 10:30 a.m meaning thereby that the dead body of the deceased was lying on the spot for two hours. However, still he was not taken to the hospital. It is hard to believe and is against the human conduct that who had received firearm injury kept bleeding on the spot for such a long period and was brought to the hospital subsequently. The dead body was brought to the hospital by Constable Muhammad Ibrahim and the complainant and eye-witnesses were not shown with the deceased at the hospital. This fact also proves that both the eye-witnesses and complainant were not present at the spot, had they been present at the spot, they necessarily would have taken the deceased to the hospital. It was human conduct that first tried to shift the injured to hospital in order to provide medical treatment. While responding to Question No.35 during cross-examination, PW-2 Sona Khan responded that:

Which shows the unnatural conduct of the alleged eye-witnesses suggesting that they were not present at the spot.

17. We have further noted that neither the complainant nor the alleged eye-witnesses have received any injury as stated by the above eye-witnesses that the appellants made 09/10 fires, in such circumstances after indiscriminate firing, there was no chance of the above PWs to escape unhurt.

18. We have also noted that it was claimed by the complainant and the eye-witness that they were miraculously saved in the midst of the firing. Blessing them with such incredible consideration and showing them such favour is implausible and opposed to the natural conduct of any accused. It is all the more illogical than being perception of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellants and co-accused did not cause any injury to them. Such behavior runs counter to natural human conduct and behavior on part of accused. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the Court to presume the existence of any fact, which it thinks likely to have happened, regard being had to common course of natural event and human conduct in relation to facts of the particular case. We thus trust the existence of this fact by virtue of Article 129 of Qanun-e-Shahadat Order, 1984 that the conduct of the assailants, as deposed by the complainant and PW-1 and PW-2 as opposed to the common course of natural events and human conduct. Hence, we are holding that the complainant (PW-1) Sona Khan (PW-2) and Gul Hassan (PW-3) were not present at the place of occurrence at the time of occurrence and did not witness the occurrence. Reliance is placed on the cases of Rohtas Khan v. The State, 2010 SCMR 566, Muhammad Farooq v. The State, 2006 SCMR 1707, Mst. Rukhsana Begum v. Sajjad, 2017 SCMR 596 and Mir Hassan v. The State, 2020 YLR 2514. The relevant portion of Mir Hassan's case (2020 YLR 2514) is reproduced as under:

11 ..The appellant equipped with Kalashnikov and the absconding accused armed with a 303 bore rifle made firing upon them; that the shot fired by the appellant hit deceased Sheer Zaman, who fell down after receiving injury. According to the above witnesses they were present at a distance of four to five feet to each other at the time of occurrence. According to PW-3 Naqeebullah the accused persons fired repeated shots (burst firing). According to recovery memo of bullet empties from the place of occurrence Ex.P/2-C eleven empties of SMG and two bullet empties of 303 bore rifle were recovered from the place of occurrence. However this court believes that if indiscriminate firing is made by two persons upon six persons from a short distance and the complainant, PW-2 Naimatullah, PW-3 Naqeebullah and other witnesses (Gula Khan and Gul Shah Khan not produced before the trial court) were standing at a distance of four to five feet from each other but none of them received injuries and only one person i.e. the deceased received only one firearm injury. If the statement of the above witnesses is believed to be true then the question arises as to why and how the appellant spared Gula Khan, Gul Shah Khan (not produced as witnesses), PW-1, PW-2 and PW-3 and did not even try to kill them, when he could have easily killed them because they were empty handed and at his mercy coupled with the fact that could depose against him as witnesses being uncle and cousin of the deceased. The mode and manner of the occurrence advanced by the prosecution witnesses is not appealable to a prudent mind.

19. The Statement of PW-2 and PW-3, further reveals that they were chance witnesses as responding to Question Nos. 2 and 55 of PW-2, during cross-examination admitted that:

In that eventuality their status will transform to that of chance witnesses.

20. We have also noted that according to prosecution witnesses and the site plan (Ex.P/7-B) as prepared by the I.O, the place of occurrence is the house of one Muhammad Murad Sumalani, but neither the statement of Muhammad Murad Sumalani was recorded nor anyone else present at the house was arrayed as a witness. The prosecution was under a bounded duty to produce the witnesses who were the resident of the place of occurrence. Article 129 of Qanun-e-Shahadat Order, 1984 provides that had evidence be produced the same would have been gone against the party producing the same.

21. Now the only piece of evidence left with the prosecution is the recoveries of pistols alleged to be used in the occurrence and recovered from the appellants. As stated above, the alleged occurrence took place on 21.06.2021 and on the same day, crime empties of T.T Pistol were also taken into possession by the I.O through recovery memo, whereas the crime weapon i.e. T.T. Pistol was recovered allegedly from the possession of the appellants on the same day. The prosecution produced a positive report of the firearm expert (Ex.P/7-G) according to which the firearm expert received parcel No. 2 of a crime empties and parcel Nos.3 and 5 of the crime weapon i.e. T.T Pistol on 06.09.2021 with a delay of 76 days after recovery of crime weapon and crime empties. The crime weapon and crime empties were sent together to the firearm expert, the same has been found in violation of the verdicts of the Hon'ble Supreme Court, wherein it was held that sending the empties together with the crime weapon to the ballistic expert makes the entire process suspicious and highly doubtful. In this case, it was obligatory upon the I.O to have sent the crime empties and crime weapon to the expert as soon as possible without any delay, therefore, the firearm expert report in this regard is inconsequential to the prosecution case. Reliance is placed on the case Muhammad Ashraf v. The State, 2019 SCMR 652, wherein it was held as under:

"After scrutiny of evidence, it has been observed by us that no such corroboration is available on record because the empties secured from the spot and 30 bore pistol allegedly recovered from the possession of appellant at the time of his arrest were sent to the office of FSL on the same day i.e. 21.03.2002, after the arrest of the appellant on 23.01.2002. In these circumstances, the report of FSL cannot be relied and is legally inconseq".

22. Apart from that, the prosecution has failed to establish safe custody of the recovered empties and pistol and their safe transmission to FSL. It has not been explained that the weapon and empties were retained by whom during this period.

23. For what has been discussed above, we are of the considered opinion that the prosecution has failed to establish its case against the appellants beyond any shadow of doubt. It is settled principle of law that for giving the benefit of doubt it is not necessary that there should be many circumstances rather if only a single circumstance creating reasonable doubt in a prudent mind, then such benefit is to be extended to an accused not as a matter concession but as a matter of right. Reliance is placed on the case title as Muhammad Akram v. The State, (2009 SCMR 230).

24. For the above reasons, the instant Appeal is allowed. The impugned judgment dated 13th May 2022 passed by trial Court in session case No.113/2021 (FIR No.33/2021, Police Station Manjhoo Shori district Nasirabad) is set aside and by extending the benefit of doubt, the appellants are acquitted of the charge. The appellants being in custody are ordered to be released forthwith, if not, required in any other case.

JK/74/Bal. Appeal allowed.