SAJJAD Versus AZIZ KHAN

SYED AFSAR SHAH, J.--- The tragic incident of the instant criminal appeal as reflected by and unfolded in the FIR. Ex.PA registered at the instance of Aziz Khan, father of the deceased Hazrat Ali and re-affirmed by him as PW-2 is to the effect that on 30.6.2007, he along with his sons Ali Rehman, Abdur Rehman and Hazrat Ali had gone to the house of their relative Abid situated in village Shagai Qilla and on their way back when they reached near to the High School, Zahirabad, accused Javed, Sajjad, Shad Muhammad alias Shaday and Bhutto duly armed with deadly weapons already present there started firing at them, resultantly, Hazrat Ali was hit and seriously injured whereas Aziz Khan, the complainant and PWs Ali Rehman and Abdur Rehman luckily escaped unhurt. They were shifting the injured to the hospital but on way he succumbed to the injuries. Motive behind the crime was that Mst. Fauzia daughter of the complainant was having a bad name with accused Shad Muhammad alias Shaday. The occurrence in addition to the complainant is stated to have been witnessed by his sons Ali Rehman and Abdur Rehman. He has charged all the four accused for commission of the offence.

Muhammad Riaz ASI (since dead) who is the author of the FIR after writing report of the complainant prepared the injury sheet along with inquest report in respect of the body of the deceased, whereafter, it was sent for autopsy to Khyber Medical College (KMC), Peshawar under the escort of FC Ajmal.

Investigation was started in the case by the local police of police station Chamkani and since initially all the four accused after commission of the alleged crime went into hiding, therefore, challan under section 512, Cr.P.C. was submitted against them to the court of learned Additional Sessions Judge, Peshawar who on completion of the proceedings under section 512, Cr.P.C, declared all the four accused as proclaimed offenders and issued perpetual warrants of arrest against them.

Later on, on arrest of the accused-appellants, Javed and Sajjad, supplementary challan was submitted against them to the court of Addl. Sessions Judge-I/Judge, Special Court, Peshawar where at the commencement of the trial, the prosecution produced as many as twelve witnesses whose statements were recorded and placed on file. On close of the prosecution evidence both the accused were examined under section 342, Cr.P.C. wherein they denied the charges professed innocence and stated to have falsely been implicated in the case. They, however, wished to produce no defence nor to examine themselves on oath as required under section 340(2), Cr.P.C.

2. The learned trial Judge on conclusion of the trial, convicted both the accused-appellants under section 302(b), P.P.C. and sentenced them to imprisonment for life with a compensation of Rs.1,00,000/- (rupees one lac) payable to the legal heirs of the deceased. They were further convicted under section 324, P.P.C. and sentenced to five years' RI each (on three counts) with a fine of Rs.10,000/- each or in default thereof to undergo six months' SI with benefit of section 382-B, Cr.P.C., vide its judgment dated 23.5.2012.

3. The appellants have questioned their conviction and sentences through this appeal.

Arguments heard and record perused.

4. Since in the instant case, the most decisive role is that of the ocular account of the two witnesses, therefore, in our view we would like to discuss it by making careful re-appraisal of the same as on one hand, a young man had lost his life while on the other hand, four accused are charged including one father and two sons along with their close relative. In other words, all the accused belonged to one and the same family, so lest innocent one is not remained in the jail for his life time on account of mis-reading or non-reading of material evidence. We understand that our judicial obligation has become onerous to undertake fair and proper re-appraisal of evidence. To test the testimony of a witness courts should not only consider whether there is consistency in the narrative but should also consider whether the version is probable or not. The above proposition is well attended by the august Supreme Court in its leading judgments " Din Muhammad v. The Crown " (1969 SCMR 777) and " Iqbal alias Bala v. The State " (1994 SCMR 1).

5. According to the prosecution version on the fateful day, Aziz Khan, the complainant along with his three sons Ali Rehman, Abdur Rehman and Hazrat Ali (deceased) had gone to the house of their relative Abid situated in village Shagai. Simple is that the entire male members of one family had gone to the house of their relative but while going through the record of the case, there is nothing in the same which could show as to for what purpose they had gone to there. Was there any ceremony in the house of their relative or for that matter they visited the house of Abid for offering a "Fateha" (if any) or for any other important discussion? The prosecution version on this precise subject stood in vacuum. To establish their visit to the house of their relative, the prosecution at least ought to have examined Abid. Again it is in the evidence that besides the deceased, the complainant Aziz Khan and his two sons were also fired at by the accused. On the other hand, it appears from the site plan Ex. PB which is prepared on the showing of the complainant and eye-witnesses that they (complainant and eye-witnesses) were within the range of guns of the accused and here the question arises that how they did not receive even a single scratch on their bodies. The eye account on this score too appears to be doubtful. In this respect case of "Muhammad Ashraf v. Sultan and 5 others" (1997 SCMR 441) can well be referred.

6. We have also seen and have sensed serious intrigues having been pressed into service with regard to the time of making the report which is shown as 8.30 a.m. i.e. within one hour and thirty minutes of the occurrence. It is in the evidence of both the eye-witnesses that after the occurrence they were taking the deceased then injured to the hospital in a vehicle but on way he succumbed to the injuries i.e. before reaching to the hospital, whereafter, the dead body was immediately taken to the police station where the incident was reported to the local police. Muhammad Ismail, SI who is the Investigating Officer of the present case when examined as PW-8 stated that there was OPD chit with the injury sheet/inquest report of the deceased which has been placed on record by author of the report, that when he was investigating the case, the said OPD chit was available on file with him. He has made it clear that on the above OPD chit it was mentioned that the body of the deceased was received in the casualty of the hospital on 30.6.2007 at 7.55 a.m. Dr. Iftikhar (PW-9) who conducted autopsy on the body of the deceased has admitted in his cross-examination that in view of the maximum probable time between death and post-mortem, the death might have occurred at 4.00 a.m. The complainant who is father of the deceased and Ali Rehman, his brother were allegedly with the deceased at the time of occurrence. As per their version, they were taking the deceased then injured to the hospital but on way he succumbed to the injuries and hence they immediately rushed to the police station along with body of the deceased for lodging the report, which version as stated earlier has been negated by the Investigating Officer by stating about the OPD chit and receipt of body of the deceased in the casualty of the hospital at 7.55 a.m.

7. The combined study of the above facts would strongly suggest and legitimate inference could be drawn that the time of report given in the murasila as 8.30 hours is clearly fabricated one and the only inference that one could draw from such course of events is that body of the deceased was first brought to the casualty of the hospital and on reaching of his relatives, it was shifted to the police station for lodging the report. In the given position extreme dishonesty on the part of the Investigating Officer cannot be ruled out and in fact the FIR was lodged after considerable consultations and deliberations.

8. It appears from the record that in this case the occurrence took place on 30.6.2007 at 700 hours whereas the report has been lodged on the same day at 8.30 hours. Besides the complainant his sons Ali Rehman and Abdur Rehman are also eye-witnesses of the incident. It is in the evidence of the Investigating Officer that he recorded statements of both the eye-witnesses on 2.7.2007, after about two days of the occurrence and for which he has not furnished any plausible explanation. Admittedly, there is inordinate delay of silence on the part of Ali Rehman (PW-3), which creates doubt about his veracity. Delay of 24 hours in reporting the matter to the police or recording the statement of witnesses by the police has been found adversely affecting the veracity of a witness as held in the case of "Muhammad Sadiq and another v. The State" (PLD 1960 SC 223). The view was re-enforced by the august Supreme Court in the case of "Syed Mahmood Shah and another v. The State" (1993 SCMR 550), where it was ruled by their lordships that statement recorded by police after delay and without explanation is to be ruled out of consideration. It was again reiterated by the apex court in the case of "Rahat Ali v. The State" (2010 SCMR 584), where it was observed by their lordships that delay in recording the statement of a witness by police without furnishing any plausible explanation is fatal to the prosecution case and the statement of such witness is not to be relied upon. In the present case, the statement of (PW-3) Ali Rehman is coming within the scope of above rules laid down by the Hon'ble Supreme Court and hence it cannot be safely relied upon in the peculiar facts and circumstances of the case.

There is indeed another disturbing point for a judicial mind and which pertains to the attribution of motive. According to the complainant his daughter Mst. Fauzia was having a bad name with accused Shad Muhammad alias Shaday. The said Shaday had gone into hiding but so far as the convict-appellants are concerned they had no motive against the deceased and, therefore, in the given circumstances this possibility cannot be ruled out that they have been roped in the case being brothers of the said Shaday. In the case of "Sadiq and another v. The State" (1993 SCMR 1864), almost a similar question was attended by the august Supreme Court and the roping of accused in being the relation of their co-accused to whom motive was attributed has been condemned and the accused-appellants were acquitted.

Again when Mst. Fauzia daughter of the complainant was having a bad name with absconding accused Shad Muhammad alias Shaday, in our society in situation like one the right of pre-emptive attack lay with the complainant-party and not with the accused. A similar question was attended by this court in the case of "Banaras and others v. The State and others" (PLD 1995 Peshawar 144), where accused-appellant was finally acquitted.

Another glaring discrepancy in the case of the prosecution is the inconsistency between ocular account and the medical evidence and in this view of the matter, if one goes through the site plan Ex. PB one gets to observe that at point No.1 deceased has been shown whereas points Nos.6, 7, and 8 have been given to the complainant and eye-witnesses and similarly at points Nos. 2, 3, 4 and 5, the accused have been mentioned. According to the prosecution, on the day of occurrence, the complainant and his sons including the deceased were on way to their home and when reached near to the High School, Zahirabad they were fired at by the accused. In the site plan, the deceased has been shown ahead of the complainant and eye-witnesses and hence in the given position he ought to have received injuries on the front of his body. As against that it is in the statement of the doctor that both the entrance wounds on the body of the deceased are on his back. We know that the deceased then alive was not a statue but in the instant case the position is a little bit different in that here both the entrance wounds are on his back. Thus, the eye-witnesses account does not tally with the medical evidence. In this respect wisdom is derived from case laws " Mirza Daulat Hussain v. Abdul Khaliq and another " (1970 SCMR 467) and Ameen Ali and another v. The State (2011 SCMR 323).

9. Again a judicial mind remains disturbed when the prosecution has charged four persons. All are stated to have fired at the complainant-party but the Investigating Officer during the spot inspection has not recovered even a single empty from the venue of crime. In the given circumstances, it was but natural that empties should have been present at the spot but these were missing. There is no evidence that the empties were removed or taken away from the crime venue by the culprits.

The circumstances do reveal that an attempt has been made by the prosecution to implicate as many persons as possible in crime but the number of accused is not commensurating with pieces of circumstantial evidence brought on record because as stated above no empty was recovered from the crime venue or other point wherefrom the accused had opened fire. This is yet another fact which gives a serious jolt to the version of prosecution. Rel. "Zaab Din and another v. The State" (PLD 1986 Peshawar 188).

Moreover, in this case, a spent bullet was recovered by the I.O. from the spot of occurrence but the same is not sent for opinion of the firearm expert which could show its bore/caliber, moreso, when the prosecution version throughout is silent about the kind of weapons which the assailants were having at the time of occurrence. Non-sending of bullet to FSL was callously noted by the apex court in the case of "Imran Hussain v. Amir Arshad and 02 others" (1997 SCMR 438).

It appears from the statement of Dr. Iftikhar (PW 9) who conducted autopsy on the body of the deceased that in view of the maximum probable time between death and post mortem which is six hours, the death might have been occurred on 4.00 a.m. In view of the post-mortem report and medical testimony furnished by doctor Iftikhar one could reach to the conclusion that the occurrence appear to have taken place in the dark of night than in broad day light as set up by the prosecution. In fact, the two eye-witnesses have given perjured testimony. In this respect, we are fortified by a case titled "Liaqat Ali v. The State" (2011 SCMR 910).

10. We have noted another glaring discrepancy in the case set up by the prosecution and which is the element of improvement. According to the prosecution case on the fateful day, the complainant along with his sons was on way to his house and when reached to the crime venue, there the convict- appellants and absconding co-accused duly armed with deadly weapons made firing at them. Not only in the site plan Ex. PB but also the complainant in his court statement has categorically stated that the time of occurrence his deceased son was ahead of him. Going ahead of his father by a son is seldom in our society any way to bring his eye account in line with the medical evidence, site plan and other facts and circumstances of the case, he has improved his account here in the court. It is settled law that the witnesses while appearing in the court had made improvements in their statements to strengthen the prosecution case cast serious doubts on the veracity of such witness. Since in the present case, the complainant has made improvement in his court statement, therefore, reliance on such ocular testimony is unsafe in light of the law laid down by the apex Court in Muhammad Shafique Ahmad's case (PLD 1981 SC 472) and Mahmood Shah's case (1993 SCMR 550).

11. Appellants, Sajjad and Javed who were declared as proclaimed offenders were arrested on 9.2.2011 and 12.1.2011 respectively and in respect, whereof although no plausible explanation has been given by the said convicts, yet, independently mere absconsion in the absence of any other incriminating piece of evidence could not entail penal consequences against them or to expose them to the criminal liability on which they had been charged. Wisdom is derived from case law titled " Abdullah v. Muhammad Ali " (PLD 1971 SC 541), " Muhammad Arshad v. Qasim Ali " (1992 SCMR 814) and " Muhammad Salim v. Muhammad Azan and another " (2011 SCMR 474). Needless to say that absconsion is corroborative piece of evidence and in cases where direct evidence fails, corroborative piece of evidence is of no avail.

There is no two opinions about the fact that the cardinal principle of justice always laid emphasis on the quality of evidence which must be of first degree and sufficient enough to dispel the apprehension of the court with regard to the implication of innocent persons along with guilty one by the prosecution, otherwise, the golden principle of justice would come into play that even a single doubt if found reasonable would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts are not required to extend the legal benefit to the accused in this regard. Reliance is placed on a view held by the Hon'ble Supreme Court in the case of " Riaz Masih alias Mithoo v. State " (1995 SCMR 1730).

12. In view of the above, we accept the appeal, set aside the conviction and sentences recorded by the trial court, resultantly, acquit both the appellants from the charges so leveled against them in the present case. They shall be released forthwith if not required in any other case.

Above are the reasons of our short order of even date announced in open Court.

HBT/139/P Appeal accepted.