State Versus BULBUL AMAN SHAH

MALIK HAQ NAWAZ, J.--- The instant Criminal Appeal under sections 417 and 417(2-A), Cr.P.C., bearing No. 26/2015 has been filed by the State and the complainant against the respondent/accused, being aggrieved from the judgment dated 12.09.2015, handed down by the learned Sessions Judge Ghizar.

2. The precise story of occurrence as unfolded in the FIR Exh.PW.2/A and narrated in opening part of the judgment of the trial Court is re-produced in verbatim:-

The prosecution story as unfolded in the FIR is that on the day of occurrence i.e. 27-08-2010, the victim along with her deceased husband were coming from Jamat Khana after offering Asha prayer towards their home. On their way near the field of one Rehmatullah, someone opened fire on the husband of victim from maize crop of the one Rehmatullah. Resultantly, the husband of the victim fell down. In the meanwhile, a muffled person with a gun came there and again fired so many fire shots on her husband. The victim has tried to resist but she sustained bullet injuries and became unconscious. The accused ran away from the spot. The motive leading to the incident was stated to be a dispute regarding theft committed in the shop of deceased with the accused Bulbul Aman one year prior to the occurrence.

3. The complainant who is real brother of deceased has not nominated any one in his written complaint marked as Exh.PW.2/B, however the respondent was suspected for the commission of murder of deceased in the FIR. After commission of murder the accused absconded and he was declared proclaimed offender and an incomplete challan under section 512, Cr.P.C., was submitted in the Court. Later on after about two years of occurrence accused/respondent was arrested on 26.09.2012 from Chitral. During investigation it transpired that the motive of the occurrence was that deceased was having extra marital relations with the wife of accused. Police submitted another incomplete challan Exh.PW.11/A and in the said challan another co-accused Gul Sambar was declared absconder. Accused Gul Samber as evident from the record secured bail before arrest and appeared in Court on 08.03.2013. The accused Gul Samber effected a compromise with the complainant party, which was allowed by the trial Court and accused Gul Samber was acquitted from the charges on the basis of compromise. The charge in the instant case was framed on 01.06.2013 and the accused/respondent pleaded "not guilty" and claimed trial.

14. The trial Court issued notices to the prosecution witnesses. Prosecution examined 14 P.Ws in order to prove its case and after closure of evidence accused was examined under section 342, Cr.P.C., on 21.04.2015, however he refused to be examined on Oath under section 340(2), Cr.P.C. The arguments were heard on 05.09.2015 and the case was fixed for announcement of judgment, which was announced on 12.09.2015 and the accused was acquitted from the charges.

5. The State/complainant being aggrieved from the judgment filed Cr. Appeal No. 26/2015, which was admitted on 06.10.2015 and notices were issued accordingly. The attendance was completed and the case was fixed on 09.06.2016 for arguments. On the said date none was present for respondent and the case was posted for 04.07.2016. On 04.07.2016 the learned counsel for respondent was again not present and case was posted to 15.08.2016 for arguments. On 15.08.2016 the bar was on strike and the case was posted to 05.09.2016. On the said date the counsel for respondent was also not in attendance and case was posted to 03.10.2016. On 03.10.2016 learned counsel for complainant was reportedly busy in another D.B. of this Court and the case was posted to 07.11.2016. On 07.11.2016 Dy.A.G. was absent and case was fixed for 05.12.2016. The learned counsel for complainant was also not present and the case was posted to 13.03.2017.

6. The above reproduction of order-sheets shows that, how the case was lingering on, for one or on the other pretext. On 13.03.2017 when the case was called learned counsel for respondent/accused requested that he is not prepared and requested for an adjournment, which was refused and the learned Dy. A.G, and the learned counsel for complainant were asked to advance their arguments.

7. The learned Dy.A.G, submitted at bar that the order of acquittal is perverse, arbitrary and there is complete mis-reading/non-reading of evidence on the part of trial Court which caused a grave miscarriage of justice. The learned Dy.A.G, further contended that all the P.Ws have supported the case of prosecution up to the hilt but the reasons advanced by the learned trial Court for acquittal are not borne out from the record. Per learned Dy.A.G, the long and unexplained abscondence of the accused have not been taken into account by the learned trial Court and the acquittal of the respondent has amounted to grave mis-carriage of justice and the concept of dispensation of justice has been defeated.

8. We after deliberation thought it fit and proper to afford an opportunity of hearing to learned counsel for the respondent and the case was posted to 20.03.2017 for further arguments. The learned counsel tried to re-read all the evidence but we asked him to assist the Court and point out any flaw in the statements of PWs to enable this Court to maintain the judgment of acquittal and also address the Court about the quantum of sentence, in case the judgment of acquittal is upset. On 13.03.2017 the learned counsel stated that he is not prepared as stated supra the case was posted for 20.03.2017. On 20.03.2017 when the case was called the learned counsel again stated that he is not prepared and would not be in a position to advance arguments. The learned counsel was confronted that the appeal was filed by the State on 12.09.2015 and notices were issued on 06.10.2015 and since then the case was being adjourned for one or the other reasons and on the last date of hearing i.e. 13.03.2017, he was allowed one week time to argue his case but again the learned counsel was not prepared to advance his arguments. A mystery surrounded in our mind and reluctance of the learned counsel was beyond our comprehension. In such a situation the Court cannot and should not throw himself at the mercy of a counsel. After filing a power of attorney in a particular case, it becomes moral and legal duty of a counsel to actively pursue the case of his client. No proper assistance was rendered by the learned counsel for the respondent/accused and due to lack of proper assistance, we again took a laborious exercise with the help of learned Dy. A.G, and learned counsel for the complainant and scanned the file to avoid any miscarriage of justice to either of the parties. It is bounden duty of the Court to dispense justice, whether any assistance is provided by the counsel of either side or not. A Judge is supposed to know the law of land on the sleeves of his robes and he should not feel himself incapacitated in a situation as discussed above. The learned counsel for complainant also assisted the Court and seconded the arguments of learned Dy. A.G., and prayed for awarding capital punishment as no mitigation was available in the instant case. As stated above that due to lack of assistance from the counsel for the respondent/accused, we very minutely scanned the grounds of acquittal and the grounds of appeal raised in the appeal by the State/complainant and placed the same in juxtaposition to avoid injustice to either party and whole the evidence was re-appraised. Needless to say that statement of witnesses in examination in chief, cross-examination and re-examination if any are termed "evidence". Keeping in view the paucity of time and space, only examination in chief of the relevant eye-witnesses/ circumstantial witness is re-produced below:-

9. PW-1 Mst. Kai Bibi, wife of deceased Ramzan Shah, who was also injured in the incident. Son of deceased namely Iqbal Ahmad Khan (PW-3) and a real brother of deceased Samar Wali (FIR lodger) examined as PW-2 and one Aslam Khan (Examined as PW-4) in toto

PW-1 Mst. Kai Bibi Stated that on the day of occurrence she and her husband were returning from Jamat Khana after offering Asha prayers. When they reached near the field of one Mazzgi, suddenly fires were opened from maize fields upon them which hit her husband and he fell down on the ground. In the meanwhile, accused present in Court came out from the field and opened fire on her deceased husband once again. She tried to catch the accused and she removed veil from his face and identified the accused Bulbul Aman Shah. The accused also fired on her which hit her and she became unconscious. Later on she came to know that she was taken to Civil Hospital Taus for treatment and thereafter she was taken to DHQ Hospital Gilgit where she remained for about one month. Later on she was taken to CMH Jutial for further treatment.

PW-2 Samar Wali deposed that on 27th August, 2010 at about 8:00 p.m. he heard reports of burst fire thricely and proceeded towards the place of occurrence and found that the deceased and his wife were lying on the ground. They have brought the dead body of the deceased to his house. In the meanwhile, police also reached there. They took the injured lady to Civil Hospital Taus. After admitting the injured lady in Hospital, he came back to the house of deceased and thereafter he proceeded to Police Station Yasin to lodge FIR Exh.PW-2/A and he nominated the accused present in Court on the basis of suspicion.

PW-3 Iqbal Ahmad testified that on 27th August, 2010 at about 8:30 p.m. he was proceeding towards his home from Jamat Khana along with other people after offering prayers. His parents were also coming from Jamat Khana. When he reached near his house, he has heard hue and cry and report of fire shots from the place of occurrence. He rushed towards the place of occurrence where he saw accused present in Court who was firing on the deceased and his mother and then escaped from the scene of occurrence. His father was expired on the spot while his mother was in injured condition. On his hue and cry PW Aslam Khan and Sammar Wali and other people reached at the spot of occurrence. He and other relatives took the injured lady to Civil Hospital Taus and then to DHQ Hospital Gilgit.

PW-4 Aslam Khan stated that on 27th August 2010 at about 8:30 p.m. he was sitting at his house and heard report of fire shots twice. He came out from the house and heard hue and cry from lower side of his house. He rushed towards the place of occurrence and on a way in a street the accused present in Court met him holding a weapon in his hand. Thereafter he reached the place of occurrence and found the father of PW Iqbal Ahmad was expired and his mother was in her house from where they took her to Civil Hospital Taus. After giving first aid the doctor referred the injured lady to DHQ Hospital Gilgit. He and PW Iqbal Ahmad took the lady to DHQ Hospital Gilgit.

10. The statements of almost all the PWs are in line with the prosecution case. The accused/respondent was charged for commission of the murder of deceased and despite of lengthy cross-examination defense failed to extract anything in their favour. Needless to mention here that contradictions in the statements of PWs are always natural as different people have different level of conceiving/perceiving the events. Any contradiction if not so material can be ignored if it does not change complete complexion of a criminal case. The postmortem of accused was conducted, which was exhibited as PW-11/A, the postmortem though is only conformity in nature, yet it also support the claim of prosecution that death of deceased was result of fire arm injuries. During investigation the police recovered a Kalashnikov from the accused/respondent on his pointation and a separate FIR No. 23/2012 was registered under section 13, A.O. During spot inspection 6 crime empties were recovered from the place of occurrence vide recovery memo Exh. PW.10/G and crime weapon was sent to Forensic Expert Peshawar and the positive report has been received therefrom and same has been exhibited as PW.13/B. The report of Forensic expert has been discarded by the trial Court on some flimsy and untenable grounds. We found that not a single suggestion was even put to the I.O., that the empties were either prepared or substituted during their retention in police station.

11. As evident from the final police report submitted in trial Court under section 173, Cr.P.C, and exhibited as PW-14/E the criminal credentials of the accused have been highlighted. It is mentioned therein that accused bears a mischievous character and was previously involved in many criminal cases, which facts remained unchallenged throughout trial. The accused after commission of offence went underground and was arrested after about two years. Long and unexplained abscondence weigh very heavily against the accused/respondent and could be considered as a piece of corroboratory evidence. At this juncture it is pertinent to mention here that respondent has a long criminal history at his credit. Following FIRs were registered against him as reflected in challan No. 20/2012. Detail is as under:- a. b. c. d. e. f. g. h.

FIR No. 4/90 FIR No. 18/95 FIR No. 19/95 FIR No. 21/95 FIR No. 22/10 FIR No. 23/12 FIR No. 10/95 FIR No. 24/12

U/S 13 A.O. EHO 9/14 EHO 9/1979 EHO 14/1979/457, P.P.C. 13 A.O. 13 A.O. EHO 14/1979 419/420, P.P.C.

P.S. Singul. P.S. Yasin. P.S. Yasin P.S. Yasin. P.S. Yasin. P.S. Yasin. P.S. Mastung Chitral. P.S. Lot Kalu

Although previous bad character is not relevant under Article 68 of Qanun-e-Shahadat, 1984 in criminal cases yet a Court can take judicial notice especially when section 75 of Cr.P.C., has been added in challan and its correctness/otherwise have not been challenged. A hardened, dangerous and desperate criminal cannot be let loose on the society.

It is pertinent to mention here that the respondent/accused was hiding in Chitral after commission of offence, the respondent went underground and was living in Chitral by using CNIC of his real brother Abdul Aman Shah. He was arrested in two criminal cases by the local police of Chitral and during investigation; he disclosed his actual name and confessed about the commission of murder of deceased of FIR No.21/2010, and after exchange of official correspondence and codal formalities, his custody was handed over to the police of District Ghizar. The local police carried out some left over investigation as most of the evidence was already in the hands of police, which was made a part of proceedings of section 512, Cr.P.C., and sent the accused to judicial lockup to face trial.

12. We feel that the judgment of the learned trial Court is against the principles of criminal justice. We are fully aware that the accused is always presumed innocent till proven guilty and presumption of innocence is multiplied after acquittal of an accused from a Court of competent jurisdiction, but at the same time, when the Appellate Court finds that the judgment of trial Court is devoid of reasoning, ridiculous and result of mis-reading/non-reading of evidence, the judgment could be reversed. Interference in an appeal against acquittal is though very rare but it varies from case to case and in appropriate case, where the judgment is shocking one, it could be reversed in the light of principles laid down by the Supreme Court of Pakistan in a judgment reported in PLD 1985 SC 11.

13. We hold that the learned trial Court failed to appreciate the evidence in accordance with the settled principles governing dispensation of criminal justice and discarded very material evidence of eye-witnesses, circumstantial witness, and postmortem report of deceased, injury sheet of Mst. Kai Bibi, recovery of weapon of offence and its positive report by the forensic expert, the report of chemical expert, without any legal justification. The view of the trial Court that there are material contradictions in the statement of prosecution witnesses is not tenable, however, if there is any contradiction, which is not so material, then contradictions themselves do not lead to the inference, that whatever the witnesses stated on the salient features of the case is to be thrown out of consideration.

14. In the circumstances, the judgment of learned Sessions Judge Ghizar dated 12.09.2015 is set aside. The appeal filed by the State and the complainant is accepted and in consequence, thereof, the accused is convicted under section 302(b), P.P.C. and awarded death sentence. He shall be hanged by neck till he be dead. He is also fined to Rs.10,00000/- (Ten lac only) to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. The accused is also convicted under section 13, A.O. and awarded 5 years' R.I. with a fine of Rs. 10,000 (Ten thousand only). He is also convicted under section 337-D, P.P.C. and awarded 5 years' R.I. for causing firearm injuries to Mst. Kai Bibi. The weapon of offence is confiscated in favour of the State. A copy of this order shall be sent to the SSP Ghizar and Deputy Commissioner Ghizar for causing arrest of the accused and his committal to judicial custody for execution of sentences. The compliance report shall be submitted to the Registrar of this Court within 15 days from the date of receiving of copy of this judgment.

15. The Criminal Appeal No. 26/15 is disposed of in the above terms.

JK/154/GB Appeal accepte