SHAH NAWAZ Versus State
ABDUL LATIF KHAN, J.--- Through this single judgment, I intend to dispose of Criminal Appeal No.51/2011 filed by appellants Shah Nawaz and others against their conviction, Criminal Appeal No.54/2011 filed by appellant Mukhtiar Abbas against acquittal of accused/respondents Ehsanullah and others and Criminal Revision No.26/2011 moved by petitioner Mukhtiar Abbas for enhancement of sentence awarded to appellants Shah Nawaz and others, as all the matters are the outcome of one and the same judgment dated 30.6.2011 passed by learned Additional Sessions Judge-IV, D I. Khan, in case FIR No.631 dated 16.9.2003 registered under sections 324/452/448/427/342/ 148/149, P.P.C. at Police Station Cantt. D.I. Khan.
2. Brief facts of the prosecution case are that complainant Sona Khan reported the matter to the effect that 12/13 years ago, he had purchased a house from one Ghulam Haider and adjacent to it was the house of Sona Khan Jorr towards north and the house of Amanullah towards south. On the day of occurrence at 11 a.m., he along with his family members was present in his house when suddenly he heard fireshots from the house of Sona Khan Jorr and when came out in the courtyard, he saw Naimatullah and Shah Nawaz armed with .303 bore rifles, Arif armed with pistol, Ehsanullah armed with Kalashnikov present there who entered his house while firing whereas Rehmatullah and Amanullah armed with rifles entered from southern wall of his house after demolishing it. The womenfolk also came out in the courtyard. The accused party started firing at complainant and the womenfolk who rushed back to their rooms. Motive for the occurrence was stated that Sona Khan Jorr wanted to get back the house.
3. On completion of usual investigation, complete challan against the accused was submitted in the trial Court where they were formally charged to which they did not plead guilty and claimed trial. In order to prove its case against the accused, the prosecution examined seven witnesses. The accused were also examined under section 342, Cr.P.C. They also examined four D.Ws in their defence. After hearing the arguments, the learned Additional Sessions Judge-IV D.I. Khan vide impugned judgment dated 30.6.2011, acquitted accused Ehsanullah, Rehmatullah, Sona Khan and Attaullah of the charges whereas on conviction under section 506(part -B)/34, the appellants Naimatullah, Arif and Shah Nawaz were sentenced to two years' Simple Imprisonment. On conviction under section 452/34, P.P.C., they were sentenced to two years' simple imprisonment while on conviction under section 427/34, P.P.C., they were sentenced to suffer one year simple imprisonment with a fine of Rs.50,000/- or in default, to undergo further six months' imprisonment. All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was extended to the convict/appellants.
4. Learned counsel appearing on behalf of the accused party contended that the prosecution failed to prove the case through cogent and reliable evidence. It is added that the acquittal of co-accused namely Ehsanulah, Rehmatullah, Sona and Attaullah was correctly recorded by the trial Court, on the basis of same set of evidence and the circumstances whereas the appellants were convicted which does not stand to reason, as on the same role and circumstances of the case, different view has been taken, which is against facts, law besides. It is contended that the judgment delivered by the trial Court is based upon misconception, as the appellants were convicted without justification and the evidence has been wrongly believed for recording conviction whereas the same evidence has been considered for the acquittal of co-accused. The trial Court has failed to evaluate the evidence in true perspective and a wrong conclusion has been arrived at on the basis of presumptions and conjectures. It was added that the punishment awarded to the appellants was harsh in nature, unjustified and inconsistent to the prosecution story, violating the established principles of law and rule of prudence.
5. As against that, learned counsel for the complainant party contended that accused Sona Khan was an aged person of about 65 years, who later on died before the commencement of trial. He was looking after the womenfolk and for this reason, could not approach the local police at police station and as such the report made on the spot would not in any way damage the case of prosecution. He referred to the statement of DW-3 who happens to be a police official posted as SHO, related to the accused side and his version has not been taken into account and no proceedings whatsoever were taken as per his allegations nor the Court has taken notice of it. He contended that seven persons armed with deadly weapons entered into his house and started indiscriminate firing, created panic and terror, which is highly deplorable. He contended that the appellants were arrested on different dates. They absconded and being a heinous offence against the society, cannot be taken leniently. He contended that Shah Jehan had no relation with the complainant party or no enmity with the accused and has narrated the version witnessed by him. He could have stated that he has seen the accused firing but he has not stated and only confined to that fact which he has witnessed, which shows that he is a truthful witness and his statement can be relied safely. Except the existence of civil dispute no other enmity has been shown. He added that none of the P Ws has been confronted with the previous statement and the question of preliminary investigation prior to the registration of case does not arise, as the report of the matter on the spot was but natural due to the old age of complainant Sona Khan and in like situation to look after the womenfolk, his presence in the house was necessary, so, in any eventuality, this can be termed as a stance against the prosecution version. He contended that the trial Court has wrongly observed about the non-application of section 324, P.P.C. on the ground that no-one was hit during the firing. He argued that even without the injury, the provisions of section 324, P.P.C. can be attracted and the trial Court was wrong to this effect. He added that the conviction awarded by the trial Court to the appellants is less and prayed for the enhancement of sentence and to this effect, Criminal Revision No.26/2011 has been filed. He also added that criminal appeal No.54/2011 has been filed by him against the acquitted accused, as they were liable to be convicted, as sufficient evidence for the conviction of the acquitted accused is available on file and the acquittal is based by the trial Court on presumptions which is not warranted by law.
6. Learned counsel appearing on behalf of the State contended that the accused were not seen by PW Shah Jehan by firing or the commission of offence and the only deposition against the accused was that they were seen running in the village. He contended that except the sole statement of Shah Jehan, there is no evidence against the accused. FIR and the site plan do not support the prosecution case. He added that there were two walls and which one was demolished is not known, however, he opined that the application of section 324, P.P.C. is not subject to the fact that it can be applied only when the victim is hit, because even without injury, the same can be attracted, if evidence is available on file to prove the case of the prosecution.
7. I have considered the arguments of learned counsel for the parties and perused the record with their able assistance.
8. Perusal of the record shows that Shah Nawaz, Arif and Rehmatullah appellants were convicted by the trial Court under sections 506(Part-B)/427/34, P.P.C., however, they were acquitted under section 324, P.P.C. on the ground that none was injured in the occurrence. Section 324, P.P.C. is reproduced below for ready reference:-
"324. Attempt to commit qatl-i-amd. Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-i-amd, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than five years, if the offence has been committed in the name or on the pretext of honour, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall in addition to the imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused:
Provided that, where the punishment for the hurt is qisas which is not executable, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to seven years."
Bare reading of the above section would show that it is an attempt with intention or knowledge that act caused to commit qatl-i-amd shall he punishable with imprisonment which does not speak about the injury caused with such act, however, second part of the same speaks about the hurt caused to any person for which punishment is provided, so, the findings of trial Court to this effect that no-one was hit in the occurrence and as such section 324, P.P.C. is not applicable, was not legally proper and to this effect, the findings are not correct.
9. So far as the prosecution case as advanced vide FIR is concerned, the appellants along with acquitted respondents allegedly entered into the house of complainant by breaking the wall and started indiscriminate firing but the site plan is silent about the fact that none of the bullet hit the person of any inmate of the house nor there are any signs on the wall, doors and the premises. A bald allegation of firing has been made in the FIR without any specification and intention on the part of the accused to commit qatl-i-amd or any offence of criminal intimidation, house trespass or to cause damage to the property of the complainant. So far as the confinement is concerned, the site plan shows two doors and if presumed that one door was closed and locked, as alleged by the prosecution, the door on the other side was opened. The learned counsel for the complainant tried to justify the door shown on eastern side as the door of cattle shed which is not plausible explanation, for the reason that the cattle shed has been shown within the house of complainant having its own door which opens towards east of main gate of the house, so, the question of illegal confinement is not proved nor the question of house trespass can be said to have been proved by the prosecution through evidence.
10. The only evidence produced by the prosecution is the statement of Shah Jehan. He is neither mentioned in the FIR nor shown in the site plan. He has simply deposed that he saw the accused running in the street. He was on his way to the spot from his house situated at a distance of 100 paces. He deposed that he heard the accused talking about the occurrence which is not humanly possible, as he has not explained as to where he heard the accused telling about the occurrence, because he has shown himself present in his house at a distance of 100 yards. None from the locality/neighbourhood has been examined. It is astonishing that such an occurrence as narrated by the prosecution that seven persons duly armed with deadly weapons entered the house by breaking the wall and started indiscriminate firing but no-one attracted from the neighbourhood nor deposed to this effect and as such the occurrence does not stand to reason. Moreover, none of the accused has been arrested on the spot. Nobody has seen the accused firing including Shah Jehan, alleged eye-witness and as such application of section 506, P.P.C. to the facts of the case is also doubtful. Mst. Shabnum (PW-7), the inmate of the house deposed that there is only one door in their house whereas site plan shows two doors of the house at the eastern and western side. She also added to improve the story by deposing that some persons were on the roof of the house but the site plan, FIR and the entire prosecution story is silent about this. No recovery has been made from the accused. The statement of the I.O. was recorded as PW-5 which is not in corroboration with the prosecution story. The prosecution has not charged anyone specifically for the destruction of wall, so, how the convict/appellants were held responsible by the trial Court out of seven accused for the damage caused to the wall or the premises of the complainant. The trial Court has based conviction on the sole statement of Shah Jehan, who is neither an eye-witness nor could justify his presence in any manner on the spot. Mere deposition of PW Shah Jehan that he has seen the accused running in the street of the village would not be a sufficient evidence to convict the appellants. The findings of the trial Court on the basis of same set of evidence and without attribution of specific role to any of the seven accused (convicted and acquitted), do not stand to reason as how three persons are convicted by drawing a line in between 3/4 accused to convict the first set and acquit the other. Neither the evidence has been produced with regard to the destruction of wall shown in the site plan at points A & B (38 feet) and at points C & D (36 feet) nor the assessment about the damage caused has been deposed by the prosecution. It does not stand to reason that walls in such a length were demolished by the accused, as the entry could have been made from the gate of the house or by breaking small piece of wall. None of the complainant party could depose to the effect that firing in fact was made. Mere bald allegation would not constitute an offence. Therefore, in the absence of any proof of intention to kill or criminal intimidation or causing damage and the trespass into the house of complainant, would not be sufficient to convict the accused. The findings of the trial Court regarding conviction of the appellants are not based on well reasoning.
11. For the reasons mentioned above, Criminal Appeal No.51/2011 is accepted, the impugned judgment dated 30.6.2011 to the extent of appellants Shah Nawaz and Arif is set aside and they are acquitted of the charges levelled against them. They being on bail are discharged from the liability under the bail bonds whereas Criminal Appeal No.54/2011 against acquittal of co-accused Ehsanullah etc. and Criminal Revision No. 26/2011 for enhancement of sentence of the appellants are hereby dismissed.
ARK/273/P Appeal accepted.