MASOOD AHMED Versus State
ABDUL HAMEED BALOCH, J.--- Through this judgment we intend to dispose of Criminal Appeal No. 270 of 2019, filed by the appellant against the judgment dated 29th July, 2019 (impugned judgment) passed by learned Additional Sessions Judge/MCTC, Pishin (trial court) whereby the appellant was convicted under section 302 (b) Pakistan Penal Code (P.P.C.) and sentenced to death as Tazir and to pay compensation of Rs. 200,000/- to the legal heirs, of deceased recoverable as an arrear of land revenue and in default to further suffer simple imprisonment for six (06) months. Murder Reference was also forwarded by the trial court for confirmation of the death sentence or otherwise.
2. The prosecution case as gleaned from the Fard-e-Biyan dated 8th September, 2018 (Ex: P/1-A) submitted by PW-1 Bibi Hussan Ara wife of Abdul Hakeem alias Lako, Caste Kakar, resident of Killi chowkal Bostan that today at 7:30 a.m., the complainant was present in her house, her son went out of the house and as soon as he went out she heard firing on which she came out to see her son and saw that Masood Ahmed son of Taj Muhammad equipped with Kalashnikov was making firing on her son Ahmed Shah. It was alleged that a bullet hit on his head due to which he fell on the ground. It was further mentioned in Fard-e-Biyan that Saeed Ahmed son of Taj Muhammad Bazai and Khan Muhammad son of Sher Muhammad Bazai were present on the roof of their house, whereas Mohabat Khan and Abdul Basit duly armed were standing in front of their gate. It was further alleged that accused Shakil Ahmed son of Niaz Muhammad, Mehbobb Khan son of Taj Muhammad, and Nisar Ahmed son of Taj Muhammad were present there and were loudly saying do not spare anyone from the family of Lako and continue firing upon their house. It was alleged that due to continuous firing Bibi Haleema wife of Niaz Muhammad, Arsalan son of Niaz Muhammad and Abdul Waheed son of Lal Muhammad received bullet injuries and fell on the ground. They also made firing upon her but she saved. The bullets also hit on the boundary wall of her house. It was further alleged that the complainant with the help of Umair Khan and Aimal Khan took her son inside the house and she informed her husband. It was further alleged that the accused persons in consultation with Niaz Muhammad and Bismillah attacked upon her house. With these averments FIR No. 18 of 2018, under sections 324, 147, 148, 149, P.P.C. was registered with Levies Station Bostar District Pishin. Injured Ahmed Shah later on succumbed on his injuries as such section 302, P.P.C. was inserted in the FIR.
3. After registration of FIR, the investigation was entrusted to Abdul Malik, who prepared injuries memo Ex: P/7-B, visited place of occurrence, prepared site plan Ex: P/7-C, secured blood stained earth through memo Ex: P/2-A, recorded statements of witnesses under section 161 Cr.P.C. The Investigating Officer Abdul Malik also prepared inquest report Ex: P/7-F1/2 to Ex: P/7-F2/2, handed over the dead body to the legal heirs against receipts Ex: P/7-D and Ex: P/7-E. The instant case was out come of cross case, as such on 24th September, 2018 the investigation of the case was handed over to PW-7 Jalaluddin who during investigation obtained blood stained clothes through memo Ex: P/4-A, recorded statements of witnesses. The Investigating Officer also took into possession documents of case FIR No. 17/2018 i.e. FIR, challan, memo of blood stained clothes, memo of empty shells, 161, Cr.P.C. statements containing 14 pages through memo Ex: P/5-A, sent the blood stained clothes, earth and empties to FSL, obtained FSL report Ex: P/7-H, obtained death certificate of deceased Ahmed Shah vide Ex; P/6-A. The Investigating Officer arrested accused Masood Ahmed on 29th September, 2018 and accused Shakil Ahmed, Bismillah, Nisar Ahmed and Niaz Muhammad on 30th September, 2018. After completion of investigation the I.O. submitted incomplete challan Ex: P/7-I and Ex: P/7-J.
4. After submission of challan after codal formalities charge was framed on 31st October, 2018 and read over to the appellant and co-accused to which they denied, whereafter, the prosecution in order to substantiate its charge produced following seven witnesses:--
PW-1 Hussan Ara is complainant of the case. She produced her Fard-e-Biyan as Ex; P/1-A;
PW-2 Aimal Khan, ocular witness, He produced blood stained soil vide Ex; P/2-A;
PW-3 Umair Khan is eye-witness of the incident;
PW-4 Allauddin, recovery witness produced memo of clothes and white cap of deceased Ahmed Shah vide Ex: P/4-A;
PW-5 Zainuddin Dafedar Levies is recovery witness of blood stained clothes and empties of case FIR. No. 17 of 2018 vide Ex; P/5-A;
PW-6 Dr. Ayesha Faiz Lady Police Surgeon produced death certificate vide Ex: P/6-A.
PW-7 Jalaluddin is the Investigating Officer of the case, who produced FIR as Ex: P/7-A , injuries memo as Ex; P/7-B, site map Ex; P/7-C, handing over of dead body Ex; P/7-D, its receipt Ex: P/7-E,-.inquest report Ex: P/ 7-F1/2 to Ex: P/7-F2/2, Murasila as Ex: P/7-G. FSL report as Ex; P/7-H. list of legal heirs as Ex: P/7-1 and challan Ex: P/7-1.
4. On completion of prosecution evidence the appellant and co-accused were examined under section 342, Cr.P.C. in which they denied the allegation of prosecution. The accused persons also recorded their statements on oath as envisaged under section 340(2), Cr.P.C. and also produced defence witnesses i.e. Bashir Agha Naib Rasaldar, Muhammad Jaffar Khan Khasadar and Muhammad Idress Khasadar.
3. On conclusion the trial court convicted the appellant Masood Ahmed in the manner as mentioned in para-1 above, whereas acquitted remaining accused of the charge, hence the appellant is before this court. Whereas the trial court forwarded Murder Reference for confirmation of the death sentence.
6. Learned counsel for the appellant contended that the prosecution has railed to record statement of independent witnesses. All the witnesses are nearly related. The alleged ocular witness Umair could not justify his presence at the relevant time and conduct of the witness appeared to be unnatural. All the witnesses have contradicted each other on material points and made dishonest improvements in their depositions. The FIR was registered with delay without any plausible explanation. No empty was recovered from the scene of occurrence. After arrest of appellant no recovery of weapon has been effected from the possession or on pointation of the appellant. The prosecution has miserably failed to establish charge against the appellant through cogent and reliable evidence. The prosecution evidence is full of doubt, but the trial court not extended the benefit of such doubt in favour of the appellant. The impugned judgment suffers from misreading, non-reading and mis-appreciation of evidence on the record. The learned counsel for the appellant relief on Khan v. The State 2019
PCr.LJ 1800, Muhammad Ishaque v. The State 2017 PCr.LJ 832, Saeed Ahmed v. Muhammad Nawaz 2012 SCMR 89, Nasrullah alias Nasro v. The State 2017 SCMR 724, Usman alias Kaloo v. The State 2017 SCMR 622 and Mst. Rukhsana Begum v. Sajjad 2017 SCMR 596.
7. Conversely the learned counsel for the complainant contended that the prosecution has satisfactorily discharged its onus to prove its case against the appellant beyond reasonable shadow of doubt through reliable and confidence inspiring evidence. The statements of prosecution witnesses are in line with each other and same fully corroborated on all material counts. The witnesses are natural; their presence at the venue of occurrence is natural. The appellant is known to the complainant. There was no chance of mistaken identity, thus the trial court rightly awarded conviction and sentence to the appellant.
8. The learned Deputy Prosecutor General supported the contention of counsel for the complainant and relied on the arguments advanced by the learned counsel for the complainant.
9. It would not be out of place to mention here that FIR No. 17 of 2018 under sections 302, 324, 147, 148, 149, P.P.C. was registered by Niaz Muhammad against the appellant's party on 8th September, 2018 in which three persons Arsalan, Bibi Hakema and Abdul Waheed were murdered. The time of occurrence has been shown at 10:15 a.m. whereas in the instant case FIR No. 18 of 2018 registered by Hussan Ara on 8th September, 2018 the time of occurrence has been mentioned at 7:30 a.m., meaning thereby that the occurrence of FIR No. 18 of 2018 had took place prior to occurrence of FIR No. 17 of 2018.
10. During trial the prosecution produced seven witnesses to prove guilt of the accused. The prosecution case revolved around the statements of complainant PW-1 Hussan Ara, PW-2 Aimal Khan, PW-3 Umair and PW-6 Dr. Ayesha Faiz. The ocular account furnished by the witnesses is not in line with each other. The complainant submitted written application Ex: P/1-A for registration of FIR. on the basis whereof FIR Exh: P/7-A was lodged on 8th September, 2019. It appeared from Ex: P/7-A that the occurrence took place at 7:30 a.m. while the complainant submitted Fard-e-Biyan at 5:00 p.m. The record reflects that PW-1 has informed her husband Abdul Hakeem alias Lako after five minutes of the occurrence, who reached at the spot and took the injured to hospital, whereas PW-2 (brother of deceased) stated that Tehsildar came at the venue of occurrence. Further stated that his father and brother were left the house one hour prior to the occurrence. He neither told who had taken the injured (later on succumbed to injuries) to hospital, nor confirmed the statement of his mother (PW-1) in regard that Abdul Hakeem came to the house after occurrence. PW-3 (cousin of the deceased) stated that his uncle Abdul Hakeem was informed. He came at the spot and took the injured to hospital in a hired vehicle. PW-6 Dr. Ayesha Faiz Lady Police Surgeon stated that deceased by brought by Muhammad Hassan relative who was identified by his uncle Abdul Samad.
11. PW-1 and PW-3 alleged to be eye-witnesses, who stated that the injured was taken to hospital by his father Abdul Hakeem, who was informed by complainant, but the record of prosecution is not supporting the version of above witnesses. PW-6 in his deposition stated that the injured was brought at hospital for medical examination at 2:15 p.m., whereas PW-7 the Investigating Officer stated that a person could reached hospital within an hour. If the stand version of PW-1 and PW-3 is to be accepted then where the injured was kept for nearly more than seven hours. The witnesses have not come with whole truth. The defence at the very outset disputed the time of occurrence. It appears to be unreasonable that parents brother and cousin left the injured in blood oozing condition without shifting him to nearby hospital for treatment. It is human nature that relative firstly tries to save the injured by shifting him to nearby hospital without any loss of time for hours. It appears that the occurrence had not taken place in the manner as suggested by the ocular account.
12. The record depicts that Abdul Hakeem neither took the injured to hospital nor proceeded to Levies Station for registration of FIR. The application was submitted by his wife. For father it is not possible to remain idle and sit as silent spectacle and left his son in an injured condition. Even he did not bother to record his statement to Investigating Officer. The ocular witnesses failed to establish that Abdul Hakeem reached at the place of occurrence. It is not out of place to mention here that Abdul Hakeem was nominated in FIR No. 17 of 2018 in respect of occurrence took place on same day at 10: 15 a.m. lodged by Niaz Muhammad.
13. PW-1, complainant stated that the accused not allowed the vehicle for two hours of the occurrence, whereafter the injured was shifted to hospital, while PW-3 has not suppbrted the version of the complainant on the same aspect. Two ocular witnesses narrated differently. PW-3 stated as under:
While PW-1 complainant stated that:
While PW-2 in his deposition has not stated that his father came to the home after occurrence. The witness has not granted license to tell lie or mix the truth with falsehood or testifying falsely a culpable offence. Rule of administration of criminal justice which is hall mark of Islamic jurisprudence that when a witness has been found falsely implicating an accused then his statement could not be based for conviction. The statement of prosecution witnesses is not in line with each other rather contradictory. Such contradictions, omission, improvements and infirmities could not be overlooked. Reliance is placed on the case of Muhammad Imran v. The State 2020 SCMR 857. It was held:
"5. Ocular account, prosecution's mainstay, has been furnished by the witnesses, found by us out of tune with one another; Fazal Abbas (PW.4) has been silent about material details of the incident, otherwise succinctly related by the complainant whom the witness statedly accompanied to the venue. On the contrary, according to his statement, in examination-in-chief, the witness appears to have arrived at the scene after the deceased had already fallen. Umar Daraz (PW-9) is prosecution star witness; according to him, Khalil Shah and Jahanzeb, co-accused, held iron bars whereas the petitioner carried a Churri, a position that is not shared by the other witnesses; they are also discrepant on the manner and mode of their arrival at the crime scene; according to Umar Daraz PW, they reached the scene on a motorbike whereas remainder of the witnesses are reticent as to how they covered the distance; there is no unanimity amongst them on the passage, they took the deceased to the hospital. These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself. Petitioner's mother Mst. Ramseela was medically examined under a police docket at 10:30 p.m. on 17.8.2015; she was noted with an incised wound on the palmer aspect of her right hand; wound though not extensive, nonetheless, suggests a happening incompatible with the case set up in the crime report, a possibility further strengthened by a Rapat of even date incorporated in the daily diary at the same police station. Despite defence's inaptitude to clearly put-forth its case, a different story is spelt out from prosecution's own case. Argument that occurrence did not take place in the manner as alleged by the witnesses does not appear to be unrealistic. Co-accused, blamed to have clutched the deceased to facilitate the petitioner have since been acquitted on the same evidence without reproach. Recovery of Churra/dagger from inside Darbar, that too, upon the disclosure of a co-accused fails to inspire confidence so as to be received as independent corroboration. It is by now well settled that benefit of a single circumstances, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction. Criminal Petition is converted into appeal and allowed. The appellant is acquitted from the charge; he shall be released forthwith if not required to be detained in any other case."
14. For the impeachment of credibility of statement of witness it is not necessary that there should be numerous infirmities. In Jehan Bahadar's case 2013 YLR 2772 (Peshawar) it was held:--
"----to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful."
15. Now adverting to the deposition of PW-3 Umair Khan. The presence of the above witness in the early morning at the place of venue is not free from doubt. The statement of chance witness could be believed if he plausible explained his presence at relevant time on the place of occurrence. The referred witness is not residing with the deceased's family. The Honorable Supreme Court in Mst. Rukhsana Begum's case reported in 2017 SCMR 596, defined the chance witness as:
"17. In ordinary parlance, a chance witness is the one who, in the normal course is not supposed to be present on the crime spot unless he offers cogent, convincing and believable explanation, justifying his presence there."
PW-3 does not justify his presence at the scene of occurrence. The witness is cousin of the deceased. It could be cited as ocular witness to support the statement of other witnesses. Reliance is placed on the case of Mst. Sughra Begum v. Qaiser Pervez 2015 SCMR 1142. It was held:
"14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."
16. The learned counsel for the appellant contended that the FIR was registered with delay without affording any plausible explanation. No doubt mere delay of lodging FIR does not discredit the FIR if the delay caused with explanation. The FIR is always treated to be a corner stone of the prosecution case to establish guilt against the culprit involved in the crime. It has a significant role to play, if there is any doubt in lodging FIR with delay give rise to a doubt which of course extended to the accused. The complainant lodged FIR with the delay more than nine (09) hours. The complainant stated that the police station is five kilometer away from her house. It seems that the complainant (PW-1) was present there, she could lodge FIR promptly. The complainant failed to explain the delay. The consultation could not be ruled out. Though mere delay may not fatal to the prosecution, but the prosecution has to plausibly explain the delay in registration of FIR. In such circumstances justify that the delay has purposely been maneuvered to name the accused later. Such managed delay and gaps adversely affect the prosecution case. Reliance is placed on the case of Mehmood Ahmed v. The State 1995 SCMR 127.
17. As per statement of PW-6 Dr. Ayesha Faiz Lady Police Surgeon the injured was brought by Muhammad Hussain and identified by Abdul Samad. The statements of both the persons were not recorded. PW-1 complainant and PW-3 stated that the injured was shifted to hospital by his father Abdul Hakeem. It was responsibility of the prosecution to record statements of witnesses who brought the injured to hospital. Non-recording statements of these witnesses fall under Article 129(g) of Qanun-e-Shahadat Order (10 of 1984), as presumption could be drawn that had the said witness been examined in the court his evidence would have been unfavourable to the prosecution. In this regard guidance is sought from the cases titled Muhammad Rafiq v. The State 2010 SCMR 385 Lal Khan v.
The State 2006 SCMR 1846 and Khalid alias Khalidi v. The State 2012 SCMR 327.
18 The ocular witnesses unanimously stated that the firing was continued for ten to fifteen minutes with automatic weapons. As per site plan the houses of appellant and complainant party are situated in same village near to each other. The witnesses were present at the venue when visited by PW-7 who prepared site plan Ex: P/7-C, but not found single casing from the place of occurrence. The recovery of empty shell without crime weapon could not benefit prosecution, but non recovery of empties could suggest that the occurrence had not taken place in the manner as stated by PWs.
19. P.W.6 in her deposition stated that the injured died on 9th September, 2018 while the Investigating Officer and PW-1 stated that the injured expired on 10th September, 2018. PW-6 in medical certificate mentioned entrance would in forehead with no exit, while PW-4 handed over blood stained clothes and white cap on 24th September, 2018 to Investigating Officer, produced as Ex: P/4-A. The witness admitted that there are entrance and exit marks on the cap of deceased. It would be relevant to reproduce medical certificate:--
"Death Certificate of a fire arm case:
Unconscious brought in critical condition with severe bleeding.
Injuries
1. Entrance wound at forehead with no exit.
After emergency treatment refer to Trauma Centre, but he was not responded and expired on 10:10 p.m.
Probable Cause
Probable cause of death is head injury caused by fire arm and homicidal in manner."
Besides the medical certificate only confirmed the locale of seat of injury and time of injury but does not identify the accused.
20. So far as the FSL Report Ex: P/17-H is concerned. It depicts that the blood stained earth, blood stained shirt, shalwar (trouser) and cape received to Forensic Science Laboratory Crimes Branch Quetta on 4th October, 2018, without any explanation that where the alleged material was kept and in whose custody. The prosecution failed to justify such delay. The FSL, report is corroborative piece of evidence when the ocular account disbelieved, thus the conviction cannot be sustained merely on corroborative evidence.
21. In such circumstances the statements of the witnesses described above being unreasonable are ruled out of consideration. It is well entrenched principle of land that where the evidence of prosecution creates doubt about truthfulness of the prosecution case then benefit of such doubt goes to the accused. The Honorable Supreme Court held in case of Safdar Baloch alias Ali v. The State 2019 SCMR 1412:
"------- Criminal liability is to be essentially settled on evidentiary certainly and not on moral satisfaction or factualities incompatible with evidence based upon truth. Prosecution's case against the appellants cannot be viewed as beyond reasonable doubt and thus conviction cannot be maintained without potential risk of error.
In view of the above discussion the Criminal Appeal No. 270 of 2019 is allowed. Consequently the impugned judgment dated 29th July, 2019 passed by Additional Sessions Judge/MCTC Pishin is set aside and appellant Masood Ahmed son of Taj Muhammad is acquitted of the charge under sections 302, 324, 147, 148, 149, 109 P.P.C. in case FIR No. 18 of 2018 Levies Station Bostan District Pishin. He is in custody be released forthwith if not required in any other case.
Resultantly the Murder Reference No. 14 of 2019 is answered in negative.
JK/92/Bal. Appeal allowed.