NASEEB-UR-REHMAN Versus State
ASSADULLAH KHAN CHAMKANI, J.--- These are two Criminal appeals and two criminal revisions arising out of the impugned judgments dated 01.12.2011 passed by learned Sessions Judge/Zila Qazi, Malakand at Batkhela, in case FIR No. 11 dated 27.4.2010 under sections 302/324/148/149, P.P.C., Police Station, Khar.
2. Facts of the case are that complainant Gul Rehman lodged a report in Civil Hospital, Batkhela, to the effect that on 27.4.2010 he along with his sons Waseem and Umar Khan were on the way to Courts, Batkhela, on foot when at 06.30 hours reached "Kharro Pato" where they were intercepted by accused Naseeb ur Rehman, Muhammad Hayat, Tahir, Zakir, Saqib, Nadir and Naseem and started indiscriminate firing at them with their respective Kalashnikovs as a result of which Waseem and Umar Khan were hit and died on the spot while he received severe injuries on his left side belly. Motive for the offence was stated that the accused had lodged report against them regarding theft and the case was pending trial. The report of the complainant was reduced into writing in shape of Murasilla, ExPA/1, and on the basis of which the present case FIR was registered.
3. Fazal Akbar IHC, after recording report of the complainant, prepared injury sheets and inquests report of the deceased and injured and handed over them to the Medical Officer. He also took into possession blood stained garments of the deceased, vide memo Ex.PW 7/6. Since the legal heirs of the deceased were not interested in Postmortem examination of the dead body of the deceased, therefore, the dead bodies were handed over to the legal heirs without postmortem examination. He picked up twenty-four empties and blood stained earth from different places of the crime spot and took the same vide memo Ex.PW 7/8, Ex.PW 7/10 and Ex.PW 7/11 respectively. He also prepared site plan, Ex.PB. Since accused were avoiding their lawful arrest, therefore, warrants under section 204, Cr.P.C. and notices under section 87, Cr.P.C. were issued against them. Later on accused were arrested in the case and challans against them were submitted before the Court. Name of accused Naseem was later on corrected as Muhammad Waseem. Later on it was transpired that the said Muhammad Waseem was deceased in case FIR No. 12 registered on the same date in the same Police Station.
4. Nadir and Saqib were minor during the days of occurrence, therefore, they were declared as juvenile offenders. Their case was separated and transferred to the Court of Juvenile Court constituted under Juvenile Justice System Ordinance. Learned trial courts charge sheeted all the accused to which they pleaded not guilty and claimed trial. Prosecution in order to prove its case examined eight (08) PWs. Thereafter, accused were also examined under section 342, Cr.P.C. wherein they claimed innocence. Learned trial Courts after hearing the parties, convicted and sentenced the appellants Naseeb ur Rehman, Tahir, Zakir and Muhammad Hayat for life imprisonment (on two counts) along with fine of Rs. 1,00,000/- each under section 544-A, Cr.P.C. to be paid to the legal heirs of deceased, or in default to undergo SI for six months. They were further convicted under section 324, P.P.C. along with fine of Rs. 50,000/- each to be paid to the injured Gul Rehman or in default to undergo SI for three months. Similarly, Judge Juvenile Court, vide impugned judgment dated 1.12.2011, convicted and sentenced the appellants Nadir and Saqib under section 302(b), P.P.C. to undergo ten years R.I (on two counts) with fine of Rs. 50,000/- each to be paid to the legal heirs of the deceased or in default to undergo three months SI. They were further convicted and sentenced under section 324, P.P.C. to undergo one year RI each and further directed to pay Rs. 10,000/-each as fine to injured Gul Rehman or in default to undergo SI for one month. All the appellants were extended benefit of section 382-B, Cr.P.C.
5. Naseeb ur Rehman, Tahir, Zakir, Muhammad Hayat filed criminal appeal bearing No. 131/2011 while Nadir and Saqib filed Criminal Appeal No. 134/2011 against their conviction whereas complainant Gul Rehman filed criminal revisions bearing Nos. 23 and 24 of year 2011 for the enhancement of sentences. Since all the appeals and criminal revisions have been filed against the judgments passed in one and single FIR bearing No. 11, therefore, we propose to dispose of all the four matters through this single judgment.
6. Learned Counsel for appellants-convicts argued that initially seven persons were charged for the killing of two persons and causing injuries to the complainant but with no specific role. He further argued that report in shape of Murasilla was drafted with sufficient delay and after preliminary investigation and medical examinations of the injured. According to him, on the same day a cross case FIR No. 12 was registered in the same police station regarding the killing of one Muhammad Waseem, who was also nominated as one of the accused of the present case by the complainant, but this material fact was suppressed by the prosecution. He argued that, in fact, the complainant at the time of report was not able to talk as evident from the statement of Dr. Noor Islam PW-6 and the culprits were not identified at the relevant time. He argued that 24 empties were recovered from the crime spot but the same were not sent to FSL in order to ascertain as to whether it was the act of single person or otherwise. He argued that the trial Court has not scrutinized the evidence of prosecution witnesses in accordance with recognized principles of appreciation of evidence available on record rather based its judgment on the basis of conjectures and surmises, therefore, the impugned judgment of conviction is against the law and without any cogent evidence, as such, the same is liable to be set aside and the accused be acquitted of the charge.
7. On the other hand learned AAG appearing on behalf of the State and counsel for the complainant argued that the convict‑appellants were charged by name in the FIR and the version of complainant was corroborated by the medical officer, Investigating Officer, recoveries from the spot and blood stained garments of the deceased and injured coupled with FSL report. They argued that the prosecution proved its case against the convict-appellants beyond any shadow of doubt and further submitted that, though, there were minor discrepancies in the evidence of prosecution but the same were not fatal to the prosecution case, however, they criticized the impugned judgment with the submission the sentences had not been awarded to the appellants, particularly, to the Juvenile offenders, in accordance with law as the prosecution was able to bring home the charge against them, therefore, submitted for the enhancement of sentences.
8. We have considered the arguments of learned counsel for parties and have gone through record.
9. Admittedly, complainant is the sole eye-witness of the occurrence and he is also father of both the deceased. He was also having criminal case against the accused persons. Honourable, the apex Court in a case of Niaz v. The State (PLD 1960 SC 387) laid down guidelines regarding appreciation of evidence relating to interested witness that whenever interested person claiming to be eye-witness of the occurrence, the first question to be considered is whether in fact he had seen the occurrence and was in a position to identify the culprits and if the first question is not open to doubt, then further question arises as to whether he can be relied upon for convicting the accused without corroboration. In the present case, presence of complainant had been proved as he had the stamp of injuries on his person. Now the question for consideration is as to whether he was in a position to identify the culprits and his statement is in consonance with the probabilities, fitting in the circumstances of the case and also inspiring confidence in the mind of a reasonable prudent man. Perusal of file reveals that in his first report, the complainant charged seven persons including one Naseem for the commission of offence but later on, his name was corrected as Muhammad Waseem son of Sher Afzal on 8.6.2010, however, the evidence available on record reveals that the said Waseem was deceased in case FIR No.12 registered on the same date and in the same Police Station. It is evident from the record that the complainant as well as Investigating Officer suppressed this material fact. Fazal Akbar, the Investigating Officer, appeared as PW-7 before the Trial Court, who in the first line of his cross-examination stated that on 27.4.2010 two FIRs bearing Nos. 11 and 12 were registered in respect of two occurrences. He stated that FIR No.11 was lodged by Gul Rehman while FIR No. 12 was lodged by one Sher Afzal. He next stated that Muhammad Waseem was nominated as one of the accused in the present case. He further confirmed that Muhammad Waseem was deceased in case FIR No. 12. Astonishingly, the Investigating Officer did not bring the above fact on record. We have also perused the contents of FIR No. 12. The time and date of occurrence of both the FIRs, i.e., 11 and 12, are one and the same. Complainant of the present case, namely, Gul Rehman was also nominated as one of the accused in case FIR No. 12 for the murder of Muhammad Waseem. Since, the complainant dishonestly suppressed the material facts from the Court, which ultimately damaged his veracity and injured his integrity and also shake the confidence of the Court and as such his statement was no more confidence inspiring, therefore, rule of prudence required independent corroboration of the eye-witness. Had the culprits been identified by the complainant, he could have not mentioned the name of Muhammad Waseem in his first report and explained each and every moment of the incident.
10. There is also unexplained delay in lodging of the report for about one and half hours. The occurrence took place at 6.30 hours while report had been lodged at 08.00 hours. Complainant stated in his cross examination that distance between place of occurrence and the hospital can be covered within twenty minutes and Police Station Khar falls in between place of occurrence and hospital. According to the statement of Dr. Noor ul Islam, PW-6, the complainant arrived at hospital at about 7.20 hours. He further stated that at the time of examination of injured Gul Rehman he was not able to talk. Complainant did not disclose this fact neither in his first report nor during court statement rather stated in his cross-examination that after 5/10 minutes of reaching hospital, levy police came and he reported the matter in emergency room to police, which further creates doubt regarding prosecution story. A cumulative effect of what has been discussed above would lead us to a irresistible conclusion that there is inordinate unexplained delay in lodging the FIR, which seems to have been recorded after preliminary investigations and due deliberation.
11. Admittedly, seven persons were charged for indiscriminate firing at the deceased and complainant. The Investigating Officer had recovered twenty-four (24) crime empties from the crime spot. The basic duty of the prosecution is to prove the participation of each and every accused in the commission of offence but it is astonishing to note that the I.O. has not sent these empties to FSL to clarify the position as to whether it was the job of a single person or otherwise, most particularly, in the absence of postmortem reports of the deceased, so, it was incumbent upon the Investigating officer to have sent the recovered empties to laboratory to ascertain as to whether the empties were fired from one or different weapons. Similarly, the I.O. during spot inspection has neither recovered any spent bullet or found any bullet marks.
12. As in the present case, the defence has established number of serious doubts, which have damaged the entire prosecution case, whereas in case of Ghulam Qadir v. State reported as 2008 SCMR 1221 wherein it has been held that for the purpose of benefit of doubt to an accused, more than one infirmity is not required. Single infirmity creates reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful. True that complainant (PW-8) having stamp of injuries and his presence on the spot is not disputed one but mere presence of stamp of injuries on the person of a witness is not a yardstick for determining the truthfulness or falsehood of a witness. It cannot be believed that every injured witness would speak truth and every unhurt eye-witness would tell a lie. It is the circumstance of the case and intrinsic worth of his statement, that determines the veracity and credibility of a witness. Their testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness. Wisdom is sought from the case Amin Ali and another v. The State (2011 SCMR 323) wherein it has been held that presence of injured witness cannot be doubted at place of incident merely because they had injuries on their persons but does not stamp them to a truthful witness.
13. It is a known principle of appreciation of evidence that the benefit of all favourable instances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. The evidence of the prosecution witnesses is neither trustworthy nor confidence inspiring nor consistent to establish accusation against the appellant, therefore, the possibility of accused being falsely implicated cannot be ruled out. Where more than one possibilities appear in the case, then the possibility in favour of accused is always to be preferred for simple reason that benefit of doubt is never to be extended to the prosecution and is always given to the accused. Any room for benefit of doubt in the prosecution case will go to accused and not to prosecution. The rule of benefit of doubt, which described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and that is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent. Wisdom is sought from the cases reported in (PLD 1973 SC 418 and 2011 SCMR 664).
In view of the above discussion, while extending the benefit of doubt, we accept Appeals Nos. 131/2011 and 134/2011 filed by the appellant-convicts by setting aside their conviction and sentences and acquit them of the charges leveled against them. They be released forthwith, if not required in any other case. Similarly, Criminal Revisions Nos. 23 and 24 of year 2011 are also dismissed.
These are the detailed reasons for our short order announced on 30.10.2013.
HBT/681/P Appeals accepted.