MUHAMMAD AZAM Versus State

MALIK HAQ NAWAZ, C.J.--- Through this single judgment we intend to dispose of both the above captioned two connected appeals bearing Criminal Appeals Nos. 21/2019 and 23/2019 as both of these appeals have come up out of case FIR No.65/2015 registered under sections 302, 109, P.P.C. of Police Station City Chilas District Diamer along with Murder Reference No. 04/2019 sent by the learned trial Court under section 374, Cr.P.C.

2. The Criminal Appeal bearing No. 21/2019 has been filed by the accused/appellant under section 410, Cr.P.C. against the impugned judgment passed by the learned Additional District and Sessions Judge District Diamer in Session case No. 188/2016 whereby the learned ADSJ Diamer has convicted the appellant namely Mohammad Azam son of Saif-ur-Rehman for qatal-e-amad of Mohammad Qamar son of Sabir Rehman under section 302(b), P.P.C. and has sentenced him to death and also imposed fine of Rs. 300,000 (rupees three lac) to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.

3. The Criminal Appeal No. 23 of 2019 has been filed by the complainant and the State under section 417(1), Cr.P.C. against the impugned judgment dated 04-09-2019, passed by the learned Additional Sessions Judge Diamer whereby the learned ADSJ Diamer has acquitted the present respondent namely Saif Ur Rehman son of Gul Muhammad resident of Gonar Faram Tehsil Chilas District Diamer from the charges levelled against him.

4. Brief facts of the case as per FIR No. 65/2015 are that the complainant Zia Ul Haq is a resident of Gonar Faram Tehsil Chilas District Diamer and serving as constable in police department. On 06.09.2015 at about 6:30 p.m. his real brother Muhammad Qamar son of Sabir Rehman was repairing his water supply pipe on the edge of road situated at Government Colony Chilas. In the meantime, the accused Muhammad Azam son of Saif Ur Rehman resident of Gonar Faram appeared at the scene of occurrence and opened fire on the person of Muhammad Qamar with a 30 bore pistol which caused his death on the spot. As per the complainant, the father of the accused Saif Ur Reham son of Gul Muhammad has abetted the principal accused namely Muhammad Azam in commission of murder of the deceased Muhammad Qamar.

5. The investigation of the case was conducted by SIP/SHO Shah Sarwar, PW-5 who has also registered the FIR and prepared inquest report of the deceased and also prepared site inspection report. He took into possession the bloodstained earth and crime empties of 30 bore pistol from the place of occurrence and recorded statements of the PWs under section 161, Cr.P.C. He arrested the accused Muhammad Azam and has recovered one 30 bore pistol along with two live cartridges during his body search. After completion of investigation the accused was sent to judicial lockup to stand trial. Formal charge was framed against both the accused on 17-12-2016 to which they pleaded not guilty and claimed trial.

6. During the trial the prosecution produced 07 (seven) witnesses and exhibited report of chemical examiner, serologist and that of Forensic Science laboratory and closed the prosecution case. The trial Court recorded statements of the accused under section 342, Cr.P.C. The accused Muhammad Azam declined to record his statement on oath under section 340(2), Cr.P.C. but produced one witness namely Noor Mohammad in his defence.

7. The learned counsel for the appellant Mr. Amjad Hussain Advocate argued that the learned trial Court has failed to appreciate evidence produced by prosecution and acted on gross violation of principle of criminal justice system and also failed to extend the benefit of doubt in favor of the appellant Mohammad Azam rather determined the doubt of the case in favor of the prosecution. He further submitted that the learned trial court has failed to appreciate material discrepancies of the case by extending the benefit of material discrepancies in support of the prosecution instead of the appellant and the findings of the trial court are based on biased and interested witnesses as all the prosecution witnesses are close relatives of the deceased person. He further submitted that the co-accused Saif-ur-Rehman has already been acquitted from the charges levelled against him, the evidence of the prosecution is non divisible, the learned trial court has refused to accept the prosecution evidence with respect to the accused Saif-ur-Rehman and accepted the same set of witnesses with regard to the accused/ convict Mohammad Azam which is against the basic principle of criminal justice system. The learned counsel submitted that almost all the prosecution witnesses are chance witnesses, who failed to prove their presence on 06-09-15 i.e. the date of occurrence as non of them have been cited as PW in the proceedings carried on the date of occurrence. The statement of DW Noor Muhammad has not been considered by the learned trial Court, which resulted into miscarriage of justice. The learned counsel for the appellant/convict has relied on the following case laws:-

2010 SCMR 97, 2004 PCr.LJ 482, 2002 YLR 3953, 2006 YLR 1733, 2011 PCr.LJ 328, 2011 YLR 2157, 2011 MLD 239, 2016 YLR 1291 and 2015 SCMR 1142.

8. The learned counsel for the appellant with regard to the accused Saif-ur-Rehman submitted that the prosecution produced as many as seven witnesses, from the statements of all the seven PWs there is no scrap of evidence regarding involvement of Saif-ur-Rehman in the commission of the offence and abettement of the same. The offence was committed in broad day light and both the parties are close relatives inter-se so there is no chance of mis-identification of the accused. Any PW including the eye-witnesses of the offence in their statements has not uttered a single word regarding the involvement of Saif-ur-Rehman in the commission of the offence. The learned defence counsel vehemently contended that the presence of FIR lodger is negated from the host of circumstances and if the FIR which is foundation of the case is excluded from consideration, the whole structure built on their own shall automatically crumbled down.

9. In the light of his above arguments the learned counsel prayed that the Criminal Appeal No. 21/2019 may be accepted by setting aside the impugned conviction judgment dated 04/09/2019 passed by the learned trial court in sessions case No. 188/2016 with the further submission that the trial Court has rightly acquitted Saif-ur-Rehman as the prosecution has failed to produce any tangible evidence against him therefore, the judgment of the trial Court regarding acquittal to the extent of the accused Saif-ur-Rehman may be upheld by dismissing the Criminal Appeal No. 23/2019 filed by the prosecution.

10. On the other hand the learned Dy. A.G. assisted by the learned counsel for the complainant Mr. Jehanzeb Khan Advocate vehementally opposed the arguments advanced by the learned counsel Mr. Amjad Hussain in support of the accused and submitted that the accused Mohammad Azam is directly charged in the FIR and the weapon of offence, 30 bore pistol used in commission of the offence along with two live cartridges were recovered from the person of the accused Mohammad Azam during his body search. The learned counsel for the complainant vehmentally argued that the statements of all the Seven PWs including the eye-witnesses corroborated with each other regarding the involvement of the accused Muhammad Azam in commission of the offence therefore the learned trial court after the conclusion of the trial has rightly sentenced him to death under section 302(b), P.P.C. but the co-accused Saif Ur Rehman was unreasonably acquitted from all the charges levelled against him and released him while the accused Saif-ur-Rehman played a vital role in the commission of offence of Qatl-i-Amd of an innocent person. The trial Court has imperfectly rather unlawfully acquitted the accused Saif Ur Rehman who had abetted the accused Muhammad Azam which is against the norms of criminal justice and procedure. He further argued that the trial Court has rightly appreciated the prosecution evidence with regard to the accused Mohammad Azam and has rightly convicted and sentenced him to death but failed to do so with regard to the co-accused/respondent in Criminal Appeal No. 23/2019 who was source of strength to his principal accused who was his son and also participated in the ferocious offence by abettment while the learned trial Court extended unwarranted favour to the accused Saif-ur-Rehman and disbelieved the evidence by overlooking the same to his extent. The learned counsel for the complainant finally submitted that the judgment of the trial court be upheld to the extent of conviction of accused Mohammad Azam by dismissing the Appeal No. 21/2019 and judgment of acquittal passed to the extent of Saif-ur-Rehman may be set aside by accepting the Criminal Appeal No. 23/2019 filed by the prosecution before this honorable court and the accused Saif-ur-Rehman be also convicted in the best interest of justice.

11. We have heard the learned counsel for the parties at length and also gone through the record of the case with their able assistance. The prosecution has produced as many as seven PWs before the trial Court whose statements are corroborated with each other.

12. The contention of the learned counsel for the convict/appellant that when the presence of FIR lodger who claims himself to be as eye-witness of the occurrence is not born out from the record then it would be against dispensation of justice to believe to other eye-witnesses whose names are mentioned by the complainant in the FIR. The contention is outrightly repelled because FIR is a document to set the law in motion and in most of the cases some exaggerations are introduced by the complainant but it is the duty of the Court to sift the grain from chaff.

13. Even if for the sake of arguments the presence of complainant is discarded, the evidence of two eye-witnesses whose names finds mentioned in all the documents prepared by the I.O. soon after occurrence at the time of his visit to the place of occurrence. The site inspection plan and site inspection report are reflections of the above proof.

14. At the cost of repetition we would like to make it clear that the postmortem of the deceased was carried out at DHQ hospital Chilas soon after the occurrence and the deceased was recognized/identified by the complainant which is sufficient proof of his presence in Chilas on the day of occurrence.

15. The record of the case further reveals that the site plan/site inspection reports of the occurrence were prepared on the day of occurrence and the names of PWs are mentioned therein. The medical evidence is also inline with the prosecution evidence. One 30 bore pistol was recovered from the appellant Muhammad Azam, which was sent to Forensic Laboratory for expert opinion and a positive report of fire arm expert has been tendered in evidence. No suggestion even has been put to the I.O. of the case regarding manipulation or preparation of recovery memo of crime empties. The contention of the learned counsel that the presence of FIR lodger is highly doubtful is also devoid of any legal force, as the postmortem of the deceased was carried out on the same day, wherein the dead body of the deceased was identified by the FIR lodger. For the sake of arguments if the presence of FIR lodger or even FIR is excluded from consideration, the conviction on a capital charge could be recorded, if there is other reliable and convincing evidence which alone would be sufficient to maintain conviction.

16. In view of above, we are of the view that the prosecution has proved its case upto the extent of the convict/ appellant, Muhammad Azam. The conviction/sentence of fine upto his extent is maintained, however, the complainant intentionally withheld the motive of the case, therefore, the sentence of death is converted into imprisonment for life with the benefit of section 382-B, Cr.P.C.

17. The accused Saif Ur Rehman has allegedly been involved in the abettement of the pricipal accused in commission of offence committed by his son. In the present situation the most relevant principle laid down in a case reported in PLD 1985 Supreme Court 11 which is reproduced as under for ready reference:- "b. Penal Code (XLV of 1860)

..Ss. 302 & 326---Criminal Procedure Code (V of 1898), 417---Constitution of Pakistan (1973), Art. 185---Appeal against acquittal-setting aside of acquittal by Supreme Court---Important and consistently followed principles in setting aside acquittal by Supreme Court stated.

In an appeal against acquittal the Supreme Court would not own principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for re-appraisement of evidence which then is under taken so as to see that the benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well -- accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. The first one if on points having conclusive effect on the and result the Court below: (a) this regarded material evidence; (b) misread such evidence; (c) received such evidence illegally.

In either case the well known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the view expressed by the court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observance of some higher priciple as noted above and for no other reason.

The court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that court was such that no reasonable person would conceivably reached the same and was impossible then this court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion ; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after security under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous".

18. It is crystal clear from the above principle that the Court would interfere in exceptional cases of acquittal if the appellate Court finds that the trial Court has erred and misread some material evidence which caused gross miscarriage of justice.

19. It is pertinent to mention here that as far as the abettment on the part of the accused Saif-ur-Rehman is concerned, the record of the trial court shows that the prosecution has bitterly unsuccessful to produce any concrete substantiation evidence regarding the participation of accused Saif-ur-Rehman in commission of the offence. The prosecution was duty bond to produce any evidence of irrefutable character from which the element of criminality must be brought out on the part of the accused Saif-ur-Rehman, which is completely lacking in the instant case.

20. The complainant has charged the accused Mohammad Azam singally and exclusively in the FIR and the weapon of offence is fully described which was recovered by the SIP/SHO Shah Sarwar from the person of accused Mohammad Azam along with two live cartridges during his body search and the same was recovered exclusively from the accused Mohammad Azam, not from the co-accused Saif-ur-Rehman.

21. The eye-witnesses present at the place of occurrence are natural witnesses whose statements before the court fully corroborated with each other and the ocular account also fully corroborated by medical evidence. There is not an iota of evidence regarding physical involvement of the accused Saif-ur-Rehman in commission of the offence. The PW-2 and PW-3 in their statements before the trial court have alleged that the accused Mohammad Azam has committed murder of the deceased Mohammad Qamar on the instigation of the accused Saif-ur-Rehman but they failed to establish the presence of the accused Saif-ur-Rehman at the place of occurrence and could not attribute any active character on the part of the accused Saif-ur-Rehman during the commission of the offence.

22. In the light of what has been discussed above we deem it fit and proper to dismiss the Appeal No. 21/2019 titled Muhammad Azam v. State being without any legal force and the accused and the Murder Reference No. 04/2019 is partially accepted and his death sentence is reduced to imprisonment for life as the complainant has stated in the FIR that the accused prior to occurrence extended murder threats to the deceased and father of the convict/appellant was informed but motive has intentionally been withheld, which we treat as a mitigating circumstance in favour of the convict / appellant. The accused Muhammad Azam shall be entitled for benefit of section 382-B, Cr.P.C. A fine of Rs. 5,00,000/- (rupees five lac) is imposed upon him under section 544-A, Cr.P.C. which shall be paid to the legal heirs of the deceased Muhammad Qamar and in case of default, he shall undergo one year R.I. Murder Reference No. 04/2019 is not confirmed and answered in "NEGATIVE".

23. The Criminal Appeal No. 23 of 2019 is dismissed as there is no incriminating evidence available against the accused Saif-ur-Rehman on the record of the case and therefore his acquittal is maintained.

24. The Criminal Appeal No. 21 of 2019 is partially allowed in the above terms. Both the appeals are disposed of accordingly. File.

JK/77/GB Order accordingly.