Raja ABBAS KHAN Versus State
RAJA SAJJAD AHMAD KHAN, J.--- Raja Mumtaz Khan (since dead), Raja Abbas Khan, Raja Ilyas Khan, Israr, Zia Ahmad Anser, Azher, Shafqat, and Raja Mohammad Ayyub Khan were tried by the Additional District Court of Criminal Jurisdiction, Muzaffarabad ("the trial Court") in case bearing FIR No.39/2008 registered at Police Station, Garhi-Dopatta on 05.06.2008 in offences under sections 302, 324 , 337, 147,148,149, 506,34 Azad Penal Code ("A.P.C.") and 13/20/65 of the Arms Act. Vide judgment dated 27.08.2010, the learned trial Court has acquitted the accused Raja Mohammad Ayyub Khan and convicted all other accused and sentenced as under:--
(i) Raja Mohammad Mumtaz and Raja Abbas Khan were awarded death sentence as Qisas under section 302(a), A.P.C. with compensation of Rs.10,00,000/-(Ten Lac) each, to be paid to the legal heirs of the deceased, and in default thereof to undergo 6/6 month simple imprisonment. Under section 13/20/65 Arms Act 2/2 years rigorous imprisonment beside fine of Rs.1000/-each and in default thereof, were ordered to undergo 15/15 days simple imprisonment. Under sections 147 and 148, A.P.C., 01/01 and 02/02 years R.I., respectively. They were acquitted from the offences under sections 324, 337,506, 34 and 149, A.P.C.
(ii) Zia Ahmad was awarded 5 years R.I. along with fine Rs.20,000/- in offence under section 324, A.P.C., sentence of Rs.50,000/- as Daman in offence under section 337-F (iii), A.P.C., ordered to pay to injured Amjad, in default he shall suffer 6 month simple imprisonment, 2 years R.I. along with fine Rs.1000/- in offence under section 13/20/65, Arms Act or in default thereof; was ordered to undergo 15 days simple imprisonment, one year R.I. in offence under section 147, A.P.C. and two years R.I. in offence under section 148, A.P.C., however, he was acquitted of the charge from the other offences.
(iii) Mohammad Ilyas, Shafqat, Anser, Azher and Israr were awarded 1 year R.I. each in offence under section, 147, two years R.I. each in offence under section 148, and 2 years R.I. along-with fine Rs.1000/- each in offence under section 13/20/65 Arms Act and in default thereof, they were ordered to undergo further imprisonment of 15 days, however, all these accused were acquitted of the charge in offences under sections 302, 324, 337/F(iii), 34,149 and 506, A.P.C.
(iv) The convicts were also extended benefit of section 382-B, Cr.P.C.
2. Against the above judgment, the convicts, filed Appeal No.15/2017, for setting aside their conviction and sentences, whereas, complainant filed Appeal No.36/17 for enhancement of sentence to convicts namely Zia Ahmad, Raja Mohammad Ilyas, Shafqat, Anser, Azher and Israr and for conviction and sentence to Raja Mohammad Ayyub (since acquitted). Learned trial Court has also submitted a Murder Reference No.14/2017 on 30.08.2010 seeking confirmation of death penalties awarded to appellants Raja Mumtaz Khan (since dead) and Raja Abbas.
3. Both the appeals and Murder Reference are interlinked and interconnected, so these are being taken up and disposed off together through this single judgment.
4. It is relevant to mention here that Jail Superintendent Muzaffarabad has submitted a report dated 15.09.2015 in the Court that appellant Raja Mumtaz Khan has died on 14.09.2015, thus, proceedings to his extent were abated vide orders dated 22.09.2015 and 15.06.2017.
5. The relevant facts of the prosecution case are that complainant Aziz Khan (P.W.1) lodged a written report Ex.PA at Police Station, Gari-Dopatta, on 05.06.2008, at 10.00 A.M. against Raja Mumtaz Khan, Raja Abbas Khan, Raja Mohammad Ilyas Khan, Raja Mohammad Ayyub Khan sons of Gulfam Khan, Israr son of Raja Mumtaz, Zia Ahmad son of Mohammad Riaz, Anser, Azher, and Shafqat sons of Mohammad llyas accused persons stating therein that he is resident of village Chothla, Tehsil and District Muzaffarabad. The accused persons Raja Mumtaz, Raja Ilyas, Ayyub Khan and Raja Abbas Khan are his close relative. His son, Javed was married with the sister of Mumtaz Khan, who in return demanded the hand of his daughter. He sought some time from the accused for reply, and later on refused to give the hand of her daughter. Due to this enmity, the accused had been threatening the complainant and his sons. Three days prior to main occurrence, Abbas son of Gu1fam, threatened the applicant saying that you have humiliated us by refusing the hand of your daughter for which you will face the consequences. Some hot words were also exchanged between the complainant and Raja Abbas Khan at that time. It was further averred that the accused remained chasing him and his sons. On 05.06.2008, the complainant along with his sons Mohammad Jahanzeb, Mohammad Aurangzeb and Amjad were constructing their shops near the shop of Shah Zaman Khan, on the roadside. At 8'O Clock the accused persons armed with lethal weapons having common intention, opened attack at the complainant and his sons. Raja Mumtaz fired a shot with Kalashnikov at Jahanzeb who fell down on the spot whereas Mohammad Abbas fired at Aurangzeb who also fell down and both succumbed to the injuries. Mohammad Zia, fired shot at Amjad who got injured. Anser, Azher and Israr were also armed with lethal weapons and raised lalkaras, i.e. "kill all." Shafqat and Ilyas also fired at the complainant but he escaped. It was further contended that due to firing of accused persons some other persons also became injured. The occurrence took place in presence of Mohammad Ishtiaq, Raja Younus, Zahid and Mohammad Basharat. The motive behind the occurrence was that the complainant has refused the hand of her daughter for the brother of the accused and they felt humiliation which motivated them for commission of offence.
6. On this report case vide FIR No. 39/2008 in offences under sections 302, 324, 337, 147, 148, 149, 506, 34, A.P.C. and 13/20/65 of the Arms Act was registered. Later on 337/F-3, A.P.C. was also added.
7. After registration of case, Inspector/SHO, Raja Akhtar Khan (P.W.24) started investigation who prepared inquest reports Ex.PL Ex.PMM along with injury sheets Ex.PJ and Ex.PR of the deceased and sent the deceased for post mortem through ASI, Shoukat (P.W.23). The injured son of the complainant namely Amjad PW.6 was also brought to Rural Health Centre Garhi-Dupatta who was referred to Abbas institute of Medical Sciences (AIMS) by C.M.O. through Ex.PN. The Investigating Officer, P.W.24, went to the crime scene, prepared a site sketch (Exh.PR), got prepared site plan by Patwari Halqa (Exh.PP and PP/2). The Investigating Officer also secured blood stained earth grass and also seized crime empties (Exh.PC) from the spot as under:--
6 empties of Kalashnikov
7 empties of 30-bore pistol
2 empties of 7MM rifle
1 empty of .12-bore gun
8. The accused were arrested on 09.06.2008. During course of investigation, I.O. recovered weapons of offence on the joint pointation of accused from the houses of accused Raja Mumtaz Khan (since died) and Raja Abbas on 16.06.2008, and 17.06.2008 vide recovery memos Ex.PD and Ex.PF) respectively. A metallic body of bullet was also recovered by the doctor from the body of injured Amjad (Ex.PG). After recovery of weapons of offence, crime empties and metallic bullet recovered from the body of injured Amjad, blood stained earth, grass, and clothes of the deceased and injured person were sent to Chemical Examiner and Forensic Science Laboratory, Lahore for report on 30.06.2008. The reports of the same are available on record as Ex.PW and Ex.PX. Dr.Naseer Ahmad Sheikh (PW.18) examined the dead bodies and prepared post mortem reports of deceased Exh.PH and Exh.PI endorsing the inquest reports Ex.PL and PM and injury sheets Ex.PJ and Ex.PR of the deceased. He observed the following injuries on the body of deceased Aurangzeb:--
(1) A small circular hole measuring 0.8cm on anterior aspect of right chest in the 5th inter costal space mid area just lateral to the nipple. The edges of the wound were inverted (wound of entry)
(2) 1.2 cm circular hole on the corresponding area of the back (Posterior chest) with averted edges (wound of exit).
The doctor opined that:--
The cause of death was bullet injury in the chest with entry on anterior right chest and exit on posterior part. The right lung was damaged and severe bleeding occurred causing hemorrhagic shock and death. The manner of death is consistent with homicidal. Range of fire seemed to be intermediate.
He also observed the following injuries on the body of deceased Jahanzeb:-
(1) A small circular penetrating wound measuring 0.9 c.m. in diameter on the lateral side of the chest in the 4th inter costal space. The edges of the wound were inverted (wound of entry)
(2) 1 cm circular hole with averted edges on lateral left lateral side of the chest in 5th intercostals space (wound exit).
The cause of death was bullet injury in the chest with entry on right lateral area and exit on left lateral area. The bullet caused damage to heart and both lungs. The manner of death is consistent with homicidal. The range of fire seemed to be intermediate.
9. On conclusion of investigation, the accused were booked and sent to face the consequences of their deeds and culpability before the trial Court in shape of report under section 173, Cr.P.C. on 29.08.2008 in offences under sections 302, 337-F(3), 324, 147, 148, 149, 506, 34, A.P.C. and 13/20/65, Arms Act.
10. The accused were indicated by framing a formal charge under section 242, Cr.P.C. which was denied by the accused professing their innocence, thereafter the prosecution was directed to produce its evidence. The prosecution in order to substantiate the culpability of the accused produced as many as 25 witnesses in all out of 26 witnesses. Dr. Zayyad Afzal Kayani (P.W.17) who recovered the metallic bullet from the body of Amjad (P.W.6) was given up. On closure of prosecution evidence appellants were afforded opportunity as contemplated under section 342, Cr.P.C. to offer explanation to the allegations brought forward by the prosecution against them who once again denied the guilt and claimed innocence.
11. The accused persons did not record their statements under section 340(2), Cr.P.C. however, they filed a list of seven witnesses to be produced in defense but statements of only three witnesses namely Dr.Naseer Ahmad Sheikh, Dr.Zayyad Afzal Kayani and Gohar Rehman Assistant Post Master GPO Muzaffarabad were recorded.
12. At the end of the trial the appellants were found guilty of the charges thus, they were convicted and sentenced in the terms mentioned above, however, accused Ayyub was acquitted of the charge vide impugned judgment dated 27.08.2010, hence these appeals and the reference.
13. Sardar K.D. Khan, the learned counsel for convict-appellants in Appeal No.15/17 and for respondents in Appeal No.36/17 reiterated the arguments already taken in the memo of appeal and vehemently argued that the impugned judgment is not a judgment in the eye of law and is not sustainable as while passing the judgment the learned trial Court has totally ignored the defense version, defense evidence and relevant portion of cross-examination which were supporting the defense version. He submits that prosecution story is totally false and fabricated based on suppressing real facts; that occurrence took place in quite different manner but prosecution tried to establish a quite different story which was false and fabricated. He forcefully submitted that complainant party is aggressor and deceased Jahanzeb fired at appellant Zia who received bullet injuries and then Zahid (P.W.4) started rapid/round firing which hit the deceased who died. He submitted that admittedly appellant Zia and (P.W.7) Sarfraz received bullet injuries in the occurrence but prosecution deliberately suppressed this fact which makes the whole prosecution story doubtful. He further submits that appellant Zia was admitted in hospital on 10.06.2008 and was referred to surgical specialist at Abbotabad. He was operated on 18.06.2008 and the bullet was recovered from his leg but nothing was brought on record regarding his injuries nor prosecution has attached his medical reports with report of 173, Cr.P.C. He emphasized on the point that investigation of case was not conducted in an impartial manner and in accordance with law. The learned counsel maintained that recovery of weapons was totally fake and fabricated which were effected from the houses which were not in possession of appellants; that the recovered empties were not kept in safe custody and recovered items were sent to Forensic Science Laboratory, after long delay as such reports of Forensic Science Laboratory could not be relied upon. He further argued that P.Ws. are partisan witnesses and in the circumstances of the case their evidence could not be relied upon. He also argued that learned trial Court fell in grave error while declaring the eye-witnesses as 'Aadil' as all eye-witnesses suppressed the real facts which floats on the surface of record that all eye-witnesses had narrated each and every detail of occurrence but failed to see Zia and Sarfraz who also received bullet injuries in the same occurrence and it was not disclosed that who injured them. He also submitted that prosecution also failed to prove motive as alleged. He drew the attention of the Court that trial Court, at the same time, had acquitted the all accused in offence under sections 149 and 34, A.P.C. but convicted them under sections 147, 148 A.P.C. without referring any evidence or assigning any reason. Finally he contended that prosecution has miserably failed to bring home the charge against the appellants but the trial Court having no lawful justification and admissibility by misreading and non-reading of the evidence has held the appellants guilty of charges. The learned counsel also submitted that in absence of premeditation and quality evidence, capital punishment cannot be awarded to the appellant No.1 . He placed reliance on 2010 SCMR 1997, 1994 SCMR 6, 1992 SCMR 983, 1999 PCr.LJ 439, 2004 PCr.LJ 68, 1995 SCMR 127, 2010 SCMR 641, 1993 PCr.LJ 753, 2011 SCMR 474, 2000 YLR 1542, PLD 1991 SC 787, PLD 1999 Lah. 5, 2001 SCMR 41, 2010 SCMR 385, 1997 SCMR 1076, PLJ 1995 SC 53 and PLD 2002 Pesh. 65.
14. Raja Gul Majeed Khan, the learned counsel for complainant while controverting the arguments of learned counsel for convict-appellants, argued that prosecution has proved its case through ocular evidence as well as corroboratory evidence; that FIR was promptly lodged, wherein names and specific role of each of the accused/offenders was described as well as four eye-witnesses were also mentioned; six eye-witnesses including complainant and injured witness Amjad fully supported the prosecution version in their statements recorded before the trial Court; one eye-witness namely Sarfraz was declared hostile but he also admits the occurrence. He further submitted that weapons of offence were recovered from all accused and recovery of weapons and crime empties recovered from the place of occurrence was fully proved; the post mortem reports and medical reports of injured witness were also duly proved; report of Forensic Science Laboratory and Chemical Examiner and site plan strengthened the prosecution version. He submits that nothing was suppressed by the prosecution as each and every detail of occurrence was narrated in the FIR and thereafter explained in the evidence; that trend of cross-examination reveals that place and time of occurrence along with presence of accused and P.Ws was admitted by the defense; the defense took plea in cross-examination that Zia accused was injured by the deceased Jahanzeb and Zahid P.W.6, started firing at the deceased but defense failed to prove this plea whereas burden of proof to prove the defense plea lie upon the shoulder of defense. He drew our attention that despite submitting a long list of defense witnesses not a single witness of occurrence was produced by defense. He emphasized that Zia was injured in the occurrence who was referred to Abbotbad, he should explain regarding his injury in his statement under section 342, Cr.P.C. or should have been recorded his statement under section 340(2), Cr.P.C, to disprove the allegation levelled against him. He further submits that when the case is proved then the acquitted respondent should be convicted and sentences of respondents Nos. 1 to 6 may be enhanced. The stance of accused that the occurrence did not take place in the manner as narrated by complainant has no substance as it was responsibility of defense to prove its version. Although the some prosecution witnesses are related to the deceased but they have no enmity with the appellants, while the other witnesses were local and independent as they were not related to the deceased. There was nothing on record to show that they were inimical towards the appellants or were interested in their conviction. The complainant had no reason to implicate the appellants in a false case by leaving the real culprit. Finally the learned counsel defended the impugned judgment on all counts and prayed for dismissal of appeal. In support of arguments the learned counsel placed reliance on 2000 SCMR 383, 2001 PCr.LJ 524, 2002 Cr.C. 76, 2008 YLR 1891, 2012 PCr.LJ 1200, 2014 MLD 489, 2005 PCr.LJ 22, 2008 SCR 326, 2005 PCr.LJ 1384, PLJ 2005 Sh.C. 162, 2005 PLC (C.S.) 1478 and 2002 YLR 1743.
15. The learned Additional Advocate General, fully owned and supported the arguments advanced by the learned counsel for the complainant and opposed the submissions made by learned counsel for appellants. The learned State counsel further argued that prosecution has proved its case through eye-account of the occurrence, but there was strong circumstantial evidence on record to prove guilt of the other acquitted respondent with the commission of offence. According to him postmortem report also supports the prosecution version and it was further corroborated by recovery of weapons of offence and other incriminating material, therefore, conviction and sentences awarded to appellants may be maintained and appeal filed by them be dismissed.
16. We have heard the learned counsel for the parties, learned Additional Advocate General at length, gone through the record of the case and also guided ourselves from the case law cited at bar.
17. After hearing the arguments of learned counsel for the parties and after perusing record it reveals that four accused persons are real nephews of complainant, five are his nephew's sons as well as appellant Zia is the real maternal grand-son of P.W. Younus and maternal nephew of P.Ws. Zahid and Basharat. The parties are of one and same family and unfortunate occurrence of murder of two young men for no valuable purpose is a drastic and unbearable trauma, having a stigmatic effect not upon their old parents and family members but on the society as well. At the same time one of the convicts, Raja Mumtaz Khan died behind the bars while waiting the fate of his future/case and rest of accused and their families had abandoned their residence from their native village after the occurrence. The whole episode is very unfortunate; however, the Courts have to decide the fate of a crime committed by a person on the basis of evidence brought on record and not at the cost of emotions.
18. The complainant has nominated nine accused persons in the FIR along-with their specific role and detail of weapons which they were holding; four eye-witnesses were also mentioned in the FIR and including complainant and two injured witnesses namely Amjad and Sarfraz total number of eye-witnesses are seven. During the occurrence one of the appellant, Zia Ahmad, also received two bullet injuries in his left foot but surprisingly complainant and all eye-witnesses did not mention this fact in the FIR or in their statements recorded under section 161, Cr.P.C. Even in their Court's statements prosecution witnesses just replied in cross-examination that they had heard that Zia became injured in the same occurrence. The Investigating Officer deposed that Zia remained admitted in hospital for one month and was operated in a hospital at Abbotabad but his medical reports were not appended with the challan and were produced by the order of this Court dated 29.03.2010. The Investigating Officer also admits in his statement that under law he was bound to investigate regarding the injury of Zia but nothing is available on record that how Zia Ahmad received two bullet injuries. It is astonishing that eye-witnesses had seen the occurrence with full attention and narrated each and every detail of prosecution version but they remained unaware that Zia Abroad also received bullet injuries. The prosecution has deliberately suppressed this fact and failed to clarify that how Zia Ahmad received two bullet injuries.
19. The motive alleged by the prosecution was that the complainant has refused the hand of her daughter for the brother of the accused and they felt humiliation which motivated them for the commission of offence but except complainant and P.W Amjad other witnesses did not utter a single word regarding the alleged motive and all the P.Ws. deposed that complainant along-with his deceased sons and Amjad came at the place of occurrence and started digging the foundation of shops. In the meantime accused Raja Mumtaz, Abbas and others tried to restrain them from construction of shops and some hot words were exchanged between them and thereafter occurrence took place but defense totally denied the fact that occurrence took place on the dispute of construction of shops. The convict Raja Abbas and others also in their statements recorded under section 342, Cr.P.C. categorically stated that occurrence did not take place on the dispute of construction of shops, whereas it is crystal clear that on the day of occurrence complainant along with his sons (deceased and injured) came at the place of occurrence for constructing the shops and started digging the foundation of shops upon which convict Mumtaz (since died) and others forbade them which resulted into occurrence. The circumstances of the case reveal that both the parties had concealed the true facts and while twisting the real facts to minimize their own part brought their own versions on the record. In such like situation the Court can draw proper inference from evidence and circumstance of the case.
20. Before discussing the role of convicts and acquitted respondent in the occurrence it is proper to have a view upon the investigation of the case. The Investigating Officer Raja Akhtar, states in his statement before the trial Court that the complainant brought two dead bodies and an injured person at Police Station who lodged written report. He further states that he recorded the statement of complainant at the place of occurrence whereas Police file reveals that when Investigating Officer reached at place of occurrence the dead bodies were lying there which were identified by Shoukat son of and Raja Mumtaz son of Gulam and statement of complainant was recorded at Police Station. He further stated before the trial Court that on the day of occurrence Patwari Halqa reached at the place of occurrence who prepared site plan and he recorded his statement whereas Ex.PQ, application for deputing the Patwari Halqa for preparing site plan was marked by Tehsildar on 11.06.2008 and Girdawar circle directed the Patwari Halqa to do the needful on 14.06.2008. In compliance of aforesaid order Patwari Halqa prepared site plan and handed over to Investigating Officer on 17.06.2008. The statement of Patwari Halqa under section 161, Cr.P.C. was recorded on 17.06.2008. Cutting on the application Ex.PQ at the date of application is also clear. The Investigating Officer recovered sixteen crime empties of different weapons from the place of occurrence on 05.06.2008 through Ex.PC and prepared parcel No.2 but this parcel was not placed in safe custody or handed over to "Mohrer" for keeping the same in "Malkhana" The weapons of offence were recovered on 16.06.2008 and 17.06.2008 through joint recovery memo Ex.PD and Ex.PF from the houses of Raja Mumtaz and Raja Abbas which were admittedly inhabited after the occurrence. The Investigating Officer also admits in his statement that these houses were inhabited and during investigation he established investigation camp at the house of Raja Abbas for 15/16 days. P. W.19 Chanzeb, Mohrer, deposed that he received parcel No.2 and other parcels on 16.06.2008 and on 17.06.2008 and could not say anything that prior to 16.06.2008 where these parcels were kept. Interestingly statement of this witness under section 161, Cr.P.C. was not recorded on the day when parcels were handed over to him but was recorded on 25.07.2008. The method of investi-gation adopted in this case is regrettable which gives rise to manipulation and padding.
21. Now we discuss the role of each appellant keeping in view the above circumstances.
22. We first take up the case to the extent of appellant Raja Abbas against whom allegation of a fire shot with Kalashnikov on deceased Oranzeb was levelled by the prosecution. To prove the allegation prosecution produced 7 eye-witnesses namely Aziz Khan (complainant), Ishtiaq, Younis Khan, Zahid, Basharat, Sarfraz and Amjad. The above mentioned witnesses, except Sarfraz who was declared hostile by the prosecution, other six witnesses categorically stated in their statements that Raja Abbas fired shot with Kalashnikov at the deceased Orangzeb who died on spot. Despite lengthy and grueling cross-examination statements of these witnesses remained consistent on this particular point and we are of the view that there veracity has not been shattered so as to suspect their evidence or discredit the same. The defense version was that deceased and injured witness Amjad received injuries by the firing of P.W. Zahid who made rapid and round firing but except putting some suggestion upon the P.Ws, defense failed to bring any evidence on record in this regard, therefore, ocular account to the extent of appellant Raja Abbas stands proved. The defense version is not reliable. The evidence of complainant who is the real father of deceased and other eye-witnesses cannot be disbelieved or doubted as their presence at the place of occurrence was fully established. Furthermore, the appellant No.1 was nominated by the father of deceased and no reason to falsely implicate appellant Abbas for murder of deceased was available on record instead of real culprit. It was not possible that a father would let off real culprit in the murder of his real sons. Substitution in such like cases is rare phenomenon. So in presence of eye-witnesses prosecution would need no corroboration but still it is supported by medical evidence as P.W.18 Dr.Naseer Ahmad Sheikh in his statement fully supported the post-mortem report Ex.PH.
23. It is correct that prosecution witnesses are inter se related with each other and with the deceased but mere relationship of the witnesses with each other could not be a ground to impeach their credibility in absence of any animus on their part against accused. Mere relationship of eye-witnesses with the deceased cannot be made basis of brushing aside their testimony which is otherwise convincing in nature. In a series of judgment it has been held that mere relationship of witnesses with deceased or their inter se relationship would not render them as interested or partisan witnesses.
24. The argument of learned defence counsel regarding motive has also no substance as stated above that occurrence took place on the dispute of shops when complainant along with his sons started construction of shops and appellants tried to restrain them. The appellants did not establish their legal right over the place where complainant wants to construct shops. In this background the given motive may not be a prima determining factor regarding the liability of occurrence, especially the death of deceased. Even otherwise it is settled principle of law that in murder cases the weakness or insufficiency of motive, even absence of motive or carelessness of investigation cannot be considered as a circumstance to justify the acquittal or mitigation of sentence when the occurrence is fully established by the eye-witnesses and is duly supported by medical evidence, thus, in the matter in hand the same is the case of appellant (Abbas), therefore, learned trial Court has rightly convicted him. The dictum laid down in case titled Mohammad Nisar v. State [2006 SCMR 161] is sufficient to meet the situation.
25. Now we consider the role of appellant Zia. The prosecution has alleged that appellant Zia fired a shot upon P.W.6 Amjad with 30-bore pistol who received injury on his buttock and fell down. Eye-witnesses Aziz Khan, Ishtiaq Khan, Younas Khan, Zahid Basharat and Amjad himself are unison on this point. The Investigating Officer, P.W.24, who initially examined the body of injured Amjad and prepared injury sheet and found only one entry wound which was mentioned in the injury form (Ex.PN) as under:--
The injured was produced before CMO, Rural Health Centre, Gharri-Dopatta who after initial treatment, referred him to Abbas Institution of Medical Sciences with following opinion:-
4 entry wounds at Lt. glueal region
Referred to AI Ms for X-ray and further management.
Whereas according to final medical report Ex.PO the injured received following injuries:--
"Two penetrating small round holes on the lateral aspect of left buttock (wounds of entries)"
Two corresponding exit wounds on medial fold of the left buttock."
A metallic bullet was also recovered from the body of injured Amjad (Ex.PG) by P.W.1 Dr. Zayyad Afzal Kiani who was given up by prosecution. The CMO Garrhi Dopatta who examined the injured Amjad initially was also not cited as witness. Dr. Naseer A Sheikh Police Surgeon CMH, Muzaffarabad who issued medico-legal report of injured Amjad (Ex.PO) stated before the trial Court that injured remained under treatment in Ambore hospital. He did not give him initial treatment, he only examined him at the time of issuing medical report, he had not seen any X-ray before issuing the medical report.
26. The allegation against the appellant Zia in FIR and in statements of P.Ws. is that he fired only one shot upon Amjad and Investigating Officer found only one entry wound on his buttock but medical reports negates the ocular account. In such conflicting circumstances normally Court would prefer medical evidence but here in the present case medical reports placed on record are contradictory to each other and X-ray of injured witness Amjad was not brought on record. If we rely upon the medical report Ex.PO where two bullet injuries (entry wounds) have been mentioned even then the whole record is silent that how injured received second bullet injury. It is proper to mention here that appellant Zia also received two bullet injuries on his left foot, detail of which has been given in the medical report Exh.PPP. All P.Ws. have deposed that Zia fired at Amjad and Amjad also states that Zia fired on him from backside but all witnesses failed to disclose that from whom firing Amjad received other injury and at the same time who fired at Zia appellant who received two bullet injuries. The above discussed circumstances indicate that Zia may have or may not have committed the alleged offence. The evidence against him is shaky as such he cannot be convicted with clear conscious and benefit of doubt must be extended in his favour to the extent of his role of shot a fire at P.W. Amjad.
27. So far as the case of convict Ilyas and Shafqat is concerned. They were alleged for making fire on complainant but in the Court statement complainant did not utter that Shafqat fired shot at him and similarly in cross-examination the complainant states that Ilyas was not present at the place of occurrence. Although the other P.Ws. highlighted their alleged role but statement of complainant is very important in this regard which create doubt regarding their role of firing at complainant and it is settled law that even benefit of a slightest doubt arises in prosecution case must be extended in favour of accused person.
28. As far as the case of convicts Azher, Anser and Israr is concerned, the allegation levelled against them was that they raised lalkara that kill the all. The statements of P.Ws. are contradictory in this regard. The complainant deposed that Ilyas, Shafqat and Israr raised lalkara whereas in the FIR his version was that Anser, Azher and Israr raised lalkara. So, the statement of complainant cannot be ignored in this regard.
29. The trial Court has acquitted all the accused of the charge under sections 149 and 34, A.P.C. The learned trial Court has assigned no reason of such acquittal, however, we have scanned the whole evidence but found nothing on record from which it can be ascertained that before the occurrence appellants hatched a conspiracy to kill the deceased or to injure the PW Amjad. There is also no evidence that deceased was done to death in furtherance of common object by forming unlawful assembly, therefore, appellants Nos. 2 to 7 and acquitted respondent cannot be held guilty of murder of deceased for the reason of vicariously liability as it is evident that occurrence did take place suddenly and accused persons had no premeditation to commit the offence. The learned trial Court has rightly acquitted the appellants and acquitted respondent of the charge of 149 and 34, A.P.C.
30. While acquitting all the accused under section 149, A.P.C., learned trial Court convicted the appellants under sections 147, 148, A.P.C. without assigning any reason, whereas; under law, an accused person cannot be convicted under section 148 or 147 unless he is found to be member of unlawful assembly using force or violence in prosecution of common object of such assembly. Reliance is placed upon case titled "Liaquat v. State" [PLD 1996 SC 219].
31. As stated in para 20 that recovery of weapons of offence was made on joint pointation of accused from the houses where no body amongst the inmates of house resided after the day of occurrence. According to Ex.PD (recovery memo) and Ex.PS (site plan of place of recovery), four accused namely Raja Mumtaz, Raja Ayyub, Zia Ahmad and Shafqat are said to have led the police at the house of Mumtaz Khan on 16.06.2008 where weapons of offence, i.e.; one Kalashnikov, two pistols 30-bore and a danda, were found in an almirah fixed in a room, were recovered. Similarly recovery memo Ex.PF and Ex.PT (site plan of place of recovery) reveals that on 17.06.2008 accused Abbas Khan, M.Ilyas, Israr, Anser and Azher while in Police custody led to the recovery of weapons of offence, one Kalashnikov, two pistols 30-bore, rifle 12-bore, rifle 7.MM which were lying in a wooden box and cupboard fixed in a room of the house of Raja Abbas Khan, were recovered. Nothing is mentioned that which of the accused had first led to the recovery or pointed out the place of recovery. It has been repeatedly held that joint recovery of weapons is of no value, therefore, the recoveries of weapons of offence are inadmissible and un-reliable. Reliance may be placed on 2005 PCr.LJ 1135, 1993 PCr.LJ 769 and 2020 YLR 195(J).
32. As stated above that sixteen crime empties were recovered from the scene of occurrence on 05.06,2008 through recovery memo Ex.PC and parcel No.2 was prepared at spot but these crime empties were neither kept in safe custody nor sent to Forensic Science Laboratory immediately after recovery. No proof is available on record that from 05.06.2008 where these empties were kept lying and these empties were sent to Forensic Science Laboratory after the recovery of weapons, whereas Superior Courts have held in number of cases that recovered empties shall not be retained by the Police and wait for the recovery of crime weapon. Sending of crime weapon together for ballistic analysis makes the entire process suspicious and highly doubtful especially when crime empties were not placed in safe custody in accordance with law for more than 10 days. The Investigating Officer was bound to send the crimes empties to Forensic Science Laboratory as soon as possible without waiting for the recovery of crime weapon but in the case in hand recovery of weapon of offence and sending the recovered weapons and empties for examination with an inordinate delay makes the prosecution case doubtful to this extent. Reliance can be placed on 2020 YLR 195.
33. In view of above, the prosecution has miserably failed to prove its case beyond shadow of doubt to the extent of appellants Nos.2 to 7. Appellant No.4 Zia Ahmad has already been served more than three years imprisonment whereas appellants Ilays, Israr, Anser, Shafqat and Azher have served more than 11 months sentence. They are acquitted of the charge under sections 147, 148, A.P.C. and 13/20/65 Arms Act by setting aside the impugned judgment to the extent of their conviction. The acquitted respondent Mohammad Ayyub has already remained in imprisonment for one year and five month, he has been rightly acquitted by the trial Court, the impugned judgment to his extent is maintained.
34. The prosecution has fully proved the case to the extent of Raja Abbas Khan of murder of Orangzeb, his conviction is maintained, however, keeping in view the circumstances of the case and the quality of evidence, his sentence under section 302(a), A.P.C. is altered into section 302(b). He is sentenced to death as Tazir, however, he is acquitted in offences under sections 147, 148, A.P.C. and 13/20/65 Arms Act, keeping in view what has been stated in preceeding paras Nos. 30, 31 and 32. The Appeal No.15/2017 is accepted to the extent of appellants 2 to 7 and same is dismissed to the extent of appellant No.1 with above modification, while Appeal No.36/2017 having no force stands dismissed, whereas reference is answered in affirmative. A copy of judgment shall be annexed with other relevant files.
JK/25/HC(AJ&K) Order accordingly.