AHMAD KHAN Versus State

TARIQ SHAMIM, J.--- This judgment will dispose of Criminal Appeal No.1272 of' 2004 filed by Ahmad Khan and Behram Khan appellants and Criminal Appeal No.1173 of 2004 filed by Ikram Ullah appellant who were convicted under section 302(b), P.P.C. read with section 149, P.P.C. and sentenced to life imprisonment each as Tazir with further direction to pay Rs.50,000 each as compensation to the legal heirs of the deceased, in default whereof to further undergo six months' S.I. each. All the three appellants were also convicted under section 148, P.P.C. and sentenced to undergo two years' R.I. each. Both the sentences were ordered to run concurrently availing the benefit of section 382-B, Cr.P.C. vide judgment dated 26-6-2004 rendered by the learned Additional Sessions Judge, Mianwali. Ehsan Ullah Khan complainant has also filed Criminal Revision No.699 of 2004 for enhancement of the sentences awarded to the appellants, which is being dealt with through this judgment.

2. Briefly stated the facts of the case as per F.I.R. Exh.P.V. lodged by complainant Ehsan Ullah Khan P.W.12 are that on 3-6-2003 at about 6 p.m. while he, along with Khizar Hayat, Maryam Khatoon (deceased), Ikram Ullah, Abdullah Khan, was on his way to his house Wandha Dalili Wala from Musa Khcl City suddenly Muhammad Riaz, Irshad Khan, (both absconders), Ahmad Khan, Behram Khan all armed with rifles, Shah Jahan armed with .12 bore gun, Khizar Hayat, Safdar Khan armed with rifles, Amir, Amir Abdullah armed with .12 bore guns along with two unknown accused armed with fire-arms emerged raising Lalkara that they had come to take revenge for the murder of their mother. Ahmad Khan accused tired with his rifle hitting on the left foot of Khizar Hayat. Muhammad Riaz fired a rifle shot hitting Khizar Hayat on the left side of head who succumbed to the injuries then and there. Mst. Maryann Bibi his mother rushed towards Khizar Hayat to save him whereupon Muhammad Irshad accused fired at her hitting her left arm and flank. The other accused also started firing. Maryam Khatoon mother of the complainant while taking towards hospital in injured condition also expired in the way hence the present case.

3. The motive for the occurrence as alleged was that in the year 1999 the mother of Khizar Hayat (since P.O.) was murdered and two other persons were injured, so due to that grudge, the accused persons while sharing common object attacked upon the complainant party to take the revenge.

4. Tariq Ahmad, S.-I. (P.W.14) took over the investigation who after registration of the case reached the place of occurrence, prepared injury statement Exh.P.N./1, inquest report Exh.P.Q. of Khizar Hayat deceased and blood-stained earth was taken into possession vide memo. Exh.P.W. and sent the dead body under the escort of Nawab Khan constable for post-mortem examination to D.H.Q. Hospital, Mianwali. He also collected blood-stained earth from the place where Maryam Bibi received the injuries and took the same into possession vide recovery memo. Exh.P.X. He also took into possession 14 empties vide memo. Exh.P.Y. Exh.P.Z. and Exh.P.AA. After necessary proceedings he went to D.H.Q. Hospital, Mianwali and prepared injury statement Exh.P.B. and inquest report Exh.P.C. and sent her dead body to the mortuary under the escort of Sher Bahadur Constable. On 4-6-2003 he also recorded the statement of Shah Jahan accused as complainant in the cross-version Exh.P.CC. and registered a cross-case. He also prepared the injury statement of Mst. Hadayat Khatoon who was admitted in the hospital and went to the place of occurrence the same day and secured the blood-stained earth from the place where Mst. Hadayat Khatoon received the injuries and recorded her statement under section 161, Cr.P.C. On 7-6-2003 he received the information about the death of Mst. Hadayat Khatoon. He arrested the accused persons and got Muhammad Irshad and Muhammad Riaz co-accused declared as proclaimed offender. During investigation Behram Khan and Ahmad Khan appellants got recovered .7 inn rifles and Ikram Ullah accused also got recovered a rifle. He investigated the case in presence of both the parties and found the cross-version of the accused side false. He also declared Safdar, Muhammad Amir, Amir Abdullah along with Khizar Hayat P.O. accused as innocent and placed their names in Column No.2 of the challan whereas he found guilty Behram Khan, Ahmad Khan, Ikram Ullah, appellants, Shah Jahan and Yousaf co-accused. After completion of the investigation he submitted challan to the Court.

5. At the trial, prosecution in order to prove its case produced as many as 14 witnesses and tendered in evidence reports of Chemical Examiner Exh.P.NN. Exh.P.PP., Exh.P.QQ. and that of Serologist Exh.P.RR. Exh.P.SS. and Exh.P.TT. and closed its case. The learned trial Court recorded the statement of Muhammad Mukhtar H.C. as C.W.1.

6. After recording the prosecution evidence the trial Court recorded the statements of the appellants and that of their co-accused under section 342, Cr.P.C. Shah Jahan accused also got recorded his statement under section 340(2), Cr.P.C. In reply to the question "why this case against you?" Ahmad Khan appellant stated as under:

"Actually, the complainant party was aggressor. They formed an unlawful assembly and while armed with fire-arm weapons caused injuries to Mst. Hadayat Khatoon who expired in consequences of those injuries. Shah Jahan co-accused lodged the report on the day of occurrence, but the police in collusion with the complainant party, got me falsely involved in this case."

7. The learned counsel appearing on behalf of the appellants argued that the complainant P.W.12 and Ikram Ullah P.W.13, the eye-witnesses of the occurrence were not present at the place of occurrence at the relevant time; that during the cross-examination major contradictions were made by the said P.Ws: in their statements; that the fatal injuries to the deceased Khizar Hayat and Mst. Maryam Khatoon were attributed to co-accused Riaz Ahmad and Irshad who have been declared proclaimed offenders, that the appellants were not attributed any injury to the deceased and that it was in fact the complainant party who was the aggressor in the case; that Safdar Khan, Muhammad Amir, Amir Abdullah accused were found innocent by the police during investigation and were acquitted by the learned trial Court along with Shah Jahan Khan, Khizar Hayat and Muhammad Yousaf accused; that the Investigating officer further opined that Safdar Khan, Muhammad Amir and Amir Abdullah were not present at the place of occurrence at the relevant time; that the enmity was proved between the parties and due to the said enmity the appellants have been involved in the case by the complainant side; that the statements of the eye-witnesses are not corroborated by any other incriminating material and that the appellants are entitled to be acquitted.

8. The learned counsel appearing on behalf of the complainant as well as the learned State counsel argued that the F.I.R. was promptly lodged wherein the names of the appellants were duly mentioned and specific roles have been ascribed to them; that enmity between the parties was admitted and the appellants in order to take revenge of the murder of Mst. Sakina and injury caused to Shah Jahan accused and Mst. Zainab launched an attack upon the complainant party when they were coming back from Musa Khel to their village Dalili Wala; that in the incident Khizar Hayat and Mst. Maryam Khatoon died due to the injuries sustained by them at the hands of the appellants; that the cross-version lodged by the accused through Shah Jahan was found to be false during investigation; that the assertion of the learned counsel for the petitioner that the complainant party was the aggressor and had launched an attack on them was belied by the fact that the accused were 11 in number and all armed with fire-arm weapons as against the complainant party which consisted of 4 persons, hence, the stand taken by the learned counsel does not appeal to mind that four persons would attack 11 persons; that Mst. Hadayat Khatoon was also injured and died due to the injuries sustained by the firing of the accused persons; that Khizar Hayat deceased was armed with .12 bore gun which he was carrying for his own safety due to the enmity with the appellants; that the statements of the eye-witnesses P.W.12 and P.W.13 were corroborated by the medical evidence as also other incriminating material; that the prosecution had proved the case of Qatl-e-Amd attempt to murder and rioting against all the accused persons in furtherance of their common object for the revenge of the murder of Mst. Sakina.

9. I have heard the learned counsel for the parties and perused the record with their assistance. The ocular account in the instant case was furnished by P.W.12 Ehsan Ullah and P.W.13 Ikram Ullah. In their statements both the witnesses accepted the fact that there is enmity between the parties. The evidence of the said P.Ws. on account of admitted enmity needs corroboration from some independent source and cannot be straightway accepted for the purpose of conviction of the appellants. The medical evidence furnished by Dr. Khalida Nusrat P.W.2 who had conducted post-mortem examination on the dead body of Mst. Maryam Khatoon and Dr. Muhammad Farooq P.W.9 who conducted the post-mortem examination on the dead body of Khizar Hayat deceased corroborated the ocular account to the extent of injuries inflicted on the deceased resulting in their deaths caused by Muhammad Riaz and Irshad Khan proclaimed offenders. However, to the extent of Ahmad Khan appellant the medical evidence does not corroborate the eye-witness account furnished by the aforementioned P.Ws. inasmuch as the fire attributed to him at the left foot of the deceased Khizar Hayat from a B distance of 18 Karams (90 feet) could not have caused injury No.3 as the dimension of the injury is 1/2 c.m. x 1/2 c.m. Since the case of the prosecution is that the other accused were also firing at the complainant party from the same distance with their respective weapons which included shotgun as such the possibility of the said injury being caused by a stray pellet cannot be ruled out. The site plan Exh.P.G. also reflects that not only the distance from where Ahmad Khan appellant had fired from was 18 Karams but also that Riaz proclaimed offender was directly in his line of fire. Thus, it can be safely said that the injury referred to above and attributed to Ahmad Khan appellant by the eye-witnesses is not corroborated by the medical evidence.

10. The eye-witnesses Ehsan Ullah P.W.12 and Ikram Ullah P.W.13 in their statements before the trial Court stated that the attack had been launched by the accused side who were 11 in number and all armed with fire-arms. The stand taken by the said P.Ws. does not appeal to mind as in case of a pre-meditated and a planned attack, none of the persons from the complainant side would have been spared. Except for Khizar Hayat and Mst. Maryam Bibi deceased no other P.W. has sustained any injury in the said occurrence. To my mind it appears that the occurrence has taken place on account of a chance meeting of the two parties who had a longstanding enmity whereupon both the sides resorted to firing at each other. This is supported by the fact that Mst. Hadayat Khatoon from the accused side was also injured in the said incident who subsequently succumbed to the injuries at the hospital. It is also in the statement of the said witnesses that Khizar Hayat accused was armed with a .12 bore gun and he had fired one shot from his weapon. The injuries sustained by Mst. Hadayat Khatoon are in line with the injuries which'can be caused by a shot from a .12 bore gun.

10-A. The argument of the learned counsel for the appellant that the occurrence was not witnessed by the said P.Ws. carries some weight as Ehsan Ullah P.W.12 in his cross-examination stated that the name of Ikram Ullah appellant and Muhammad Yousaf were disclosed to him by - his Phoophizad Kafayat Ullah after the occurrence. The learned counsel has drawn my attention to the fact that the said disclosure was alleged made by Kafayat Ullah one month and nine days after the occurrence, whereas it is an admitted fact and it is so stated by the said two eye-witnesses that the complainant party as well as the accused party were also related and lived in the same village. If Ikram Ullah and Yousaf had participated in the occurrence there is no reason why they should not have been identified by the complainant at the time of occurrence and nominated in the F.I.R.

11. Insofar as the recoveries of weapons of offence from the appellants is concerned, .7 mm rifles were recovered from Ikram Ullah and Ahmad Khan appellants on 8-8-2003 which is approximately two months and 5 days after the occurrence. Similarly the recovery effected from Bahram Khan of .7.mm rifle P.11 and 7 live bullets P.12/1-7 taken into possession vide recovery memo. Exh.P.M. was effected on 20-7-2003 which is also after a lapse of one month and 17 days from the date of occurrence. The empties recovered from the spot as well as the weapons of offence were never sent to the Forensic Science Laboratory as there is no such report on the file. Further, the witness of recoveries effected from Ikram Ullah and Ahmad Khan appellants is P.W.7 Nawab Khan constable, who in his cross-examination admitted that none from the public was called by the Investigating Officer to be associated in the recovery proceedings although a number of persons from the locality were present. A similar statement was made by Habib Ullah Constable (P.W.8) who is the only witness of recovery in respect of the .7 mm rifle recovered form Behram Khan appellant. The recovery of weapons was not only belated but also in clear violation of section 103, Cr.P.C. D Therefore, it can be safely concluded that the recoveries in the case are of no consequence and cannot be relied upon by the prosecution for any corroborative purpose.

12. During the investigation Safdar Khan, Muhammad Amir and Amir Abdullah accused were found innocent by the Investigating Officer as they were not found to be present at the spot at the time of occurrence. It is, therefore, obvious that the complainant has implicated as many persons as possible from the accused side. The net was thrown wide deliberately in order to ensure that no male member from the accused side was spared to pursue the criminal case. The learned trial Court while agreeing with the investigation acquitted the said three accused persons and also extended benefit of doubt to Shah Jahan Khan, Khizar Hayat and Muhammad Yousaf accused. The trial Court while convicting the appellants believed the same set of evidence which it had disbelieved qua the acquitted accused.

13. From the above, it is abundantly clear that the prosecution has failed to prove its case against the appellants beyond a reasonable doubt. The learned trial Court convicted the appellants Ikram Ullah and Behram Khan solely on the ground that the recovery of weapons of offence had been effected from them without taking into consideration the infirmities and defects in the recovery proceedings. Ahmad Khan appellant was convicted by the learned trial Court on the ground that he had caused injury on the foot of Khizar Hayat deceased and that recovery of weapon of offence had been effected from him. The learned trial Court lost sight of the fact that the recovery of weapon of offence was not proved on the G record as neither the empties recovered from the spot nor the weapon of offence were sent to the Forensic Science Laboratory for expert opinion. The medical evidence also did not corroborate the eye-witness account to the extent of the said injury. I am, therefore, of the considered view that the prosecution has miserably failed to prove its case against the appellants.

14. For what has been discussed above, both the appeals, (Criminal Appeals Nos.1272 and 1173 of 2004) are accepted, the conviction and sentences awarded to the appellants are set aside and they are acquitted from all charges. They shall be released from prison forthwith if not required in any other case.

15. Criminal Revision No.699 of 2004 seeking enhancement of sentence of the appellants is dismissed.

S.M.B./A-186/L ????????????????????????????????????????????????????????????????????????????????? Order accordingly.