Hassan Khan Versus State

Rozi Khan Barrech, J .--- The appellant Hassan Khan, son of Lal Jan allegedly murdered Faridullah, son of Muhammad Shafiq by means of firing with Kalashnikov at the area of Baratkhail Kili Gadvi near Link Road Killa Saifullah within the precincts of Levies Thana Killa Saifullah on 12.02.2022. For the commission of the said offence, the appellant was booked in case FIR No. 03/2022 registered under sections 302, 324, 147, 148 and 149 P.P.C with the said Levies Thana on 12.02.2022 at 12:30 pm. After a regular trial, the appellant was convicted under section 302(b) P.P.C vide judgment dated 21.02.2023 ('the impugned judgment' ) passed by learned Sessions Judge Killa Saifullah ( `trial Court' ) in Session Case No. 06 of 2022 and sentenced to suffer R.I for life and to pay Rs.500,000/- to the legal heirs of the deceased Faridullah in default whereof he was directed further undergo six months S.I. with the benefit of Section 382-B Cr.P.C.

Aggrieved, from the impugned judgment, the appellant has assailed his conviction and sentence through the instant appeal.

3. Learned counsel for the appellant submitted that the impugned judgment is based on conjectures and surmises as the same is based on mis-reading and non-reading of evidence available on record; that there are two versions of the prosecution case, one recorded by the complainant and the other produced by the eye-witnesses, which create reasonable doubt in the prosecution case; that the appellant is not nominated in the FIR and subsequently, after three hours of the occurrence the eye-witnesses nominated the appellant in the instant case in their statements recorded under section 161 Cr.P.C; that the so-called eye-witnesses produced by the prosecution are interested and inimical against the appellant and also chance witnesses; that the recovery of crime weapon allegedly affected on pointation of the appellant is doubtful; that the co-accused has been acquitted from the charge by the trial court on the same set of evidence and no appeal was filed by the complainant and the judgment of the trial court to the extent of the acquitted co-accused attained finality, benefit whereof should be given to the appellant; that the alleged empties were recovered from the place of occurrence and after fourteen days of the occurrence the alleged crime weapon was recovered from the appellant and both the empties and crime weapon were sent together to the firearm expert and lastly prayed that since the prosecution has failed to establish its case beyond any reasonable doubt, therefore, by accepting the appeal, the appellant may be acquitted from the charge.

4. Conversely, the learned state counsel and counsel for the complainant vigorously controverted the arguments advanced by the learned counsel for the appellant and submitted that the prosecution had successfully proved its case against the appellant up to the hilt by producing reliable and trustworthy evidence; that evidence of the prosecution is based on ocular, medical evidence and recovery of crime weapon on pointation of the appellant, which sufficiently connect the appellant with the commission of the alleged crime and lastly prayed that in the presence of sufficient evidence on record, appeal filed by the appellant is liable to be dismissed.

5. We have heard the arguments of learned counsel for the parties and have gone through the record minutely.

6. We have observed that the prosecution has produced evidence in the shape of ocular evidence, medical evidence and crime weapon recovered on the pointation of the appellant as well as investigation besides other attending circumstances. As far as the merits of the case are concerned, we have observed that the prosecution produced Shah Wali (PW-2), Abdul Latif (PW-3), and Ameenullah (PW-5), who are eye-witnesses of the occurrence. All the above witnesses are closely related to the deceased Faridullah, therefore, for the safe dispensation of justice, their evidence will have to be appreciated with care and caution. No doubt the evidence of the related witnesses cannot be discarded on the grounds of its being related to the victim, but if it is found that the testimony of the related witness has no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter as such, which cannot be expected from a prudent person, then under such circumstances the evidence furnished by related witnesses can be easily discarded. At the touchstone of the above we now take into-consideration the testimonies furnished by the above witnesses in the case.

7. PW-2 namely, Shah Wali, stated in his statement that on 12.02.2022 at 10:00 pm, he, along with Faridullah, left their Kili Wand for the purpose of labour for Ghuai, on a motorcycle, and when they reached Baratkhail, they saw Mulla Shan Muhammad alias Shano who was also riding a motorcycle and when they were crossing Mulla Shan Muhammad alias Shano both motorcycles collided, whereafter altercation took place between them. Meanwhile, the people from the village intervened, whereafter Mulla Shan Muhammad left for home, and the people told us if we wanted to go home, we would have to travel from a different route lest further damage could be avoided. They then left for home Killi Gadvi, and when they reached near Sharaf Khan s house at about 11:00 am, firing was made upon them from Ghundi, and he (PW-2) stopped the motorcycle and plunged into a trench to save himself from firing, whereas his companion Faridullah in order to save himself fled towards the hills and lied down in the Ghundi. He saw that there was a hideout on the hill wherein Ahad, Sherak, Hassan Khan, Mulla Zarif and Huda Khan were present, having Kalashnikovs and rifles who were firing and from Sharaf Khan s houses they were also being fired upon. Meanwhile, Aminullah and Khyal Din also came. From the eastern side, Hassan Khan fired upon the deceased Faridullah, due to which Faridullah got injured. Meanwhile, Khyal ud Din also came when the accused persons stopped firing. When Khyal ud Din went to bring down Faridullah, the accused persons started firing again, which resulted in causing injuries to Khyal ud Din, who sustained a injury on his leg, when the people from the surrounding came and brought Faridullah down and sent him for treatment, then, he saw Sharaf Khan, Ahwal Khan, Saleem Khan and Mullah Shano coming down from a tower at Sharaf ud Din house having Kalashnikovs and rifles.

Abdul Latif appeared before the court as PW-3 and stated that he was present in his house at Killi Gadvi when he heard firing and reached the place of occurrence and saw the accused persons firing upon the deceased Faridullah and Khyal Din, who were both injured and later on Faridullah succumbed to the injuries.

Aminullah appeared before the court as PW-5 and stated in his statement that on the day of the occurrence, he was going to Toda Safarzai on a motorcycle. When he was going back to his house at Bararkhail main road, he heard a firing, and the accused persons fired upon the deceased Faridullah and Khyal Din. Both of them received injuries, and later on, Faridullah succumbed to the injuries.

8. The record reflects that the occurrence took place at 11:00 am, allegedly in the presence of the above three witnesses, but the report was lodged at 12:30 pm by Abdul Wasay Dafedar Levies/Incharge Levies Thana Baratkhail (PW-1), who is not an eye-witness of the alleged occurrence. According to the statement of complainant/PW-1 on 12.02.2022 at 11:00 am two parties fired on each other in the area of Baratkhail Killi Gadvi near the link road with Kalashnikovs due to which Faridullah and Khyal Din received injuries, who were shifted to Killa Saifullah hospital. It has also come on record that the complainant Abdul Wasay Dafedar Levies Thana, after hearing the firing reached the place of occurrence and stated during cross-examination that he remained present for fifteen minutes at the place of occurrence, while in his report and during cross-examination he stated that he went to the hospital and thereafter went to Levies Thana and lodged the report, meaning thereby that before the lodgment of the FIR, he was present at the place of occurrence as well as a hospital while the injured was being brought to the hospital. It is worthwhile to mention here that the FIR was lodged against unknown persons and the appellant and co-accused are not nominated in it. For the sake of arguments, even if it is presumed for a moment that they (PW-2, PW-3 and PW-5) were present at the place of occurrence as well as at the hospital, then the question arises that why they did not lodge the FIR or named the accused persons to the complainant Abdul Wasay Levies Incharge of Levies Thana Killa Saifullah. Had they been present at the time of the alleged occurrence, they must have lodged the FIR and nominated the accused persons. On the other hand, according to the above PWs and investigation officer, namely Muhammad Essa Naib Risaldar Levies (PW-12), he went to the place of occurrence after registration of the FIR as well as civil hospital Killa Saifullah, but he also stated that he recorded the statement of PW-2, PW-3 and PW-5 under section 161 Cr.P.C at the house of the deceased Faridullah at 2:00 pm. It seems that they (PW-2, PW-3 and PW-5) were not present at the place of occurrence. Needless to say that, not nominating the appellant in the FIR rather he was subsequently nominated by the above PWs after three hours of the occurrence, cannot be simply brushed aside, and it assumed great significance and can be attributed to consultation, taking instructions and calculated preparing the report keeping in view the name of the assailants opened for involving such persons who ultimately the prosecution may wish to nominate. This aspect of the case renders the case of the prosecution extremely doubtful.

9. The above witnesses remained mum and recorded their statements under section 161 Cr.P.C with considerable delay. The delay of even one or two days without explanation in recording the statements of witnesses has been found fatal for the prosecution and not worthy of reliance by the august Supreme Court in the case of Muhammad Asif v. The State reported as 2017 SCMR 486 , Haroon alias Harooni v. The State and another (1995 SCMR 1627) and Muhammad Khan v. Maula Bakhshah (1998 SCMR 570).

10. Apart from the above, PW-2, PW-3 and PW-5 were highly interested and inimically deposed against the appellant. The first reason for disbelieving them is that their presence at the spot was unnatural because had they been present at the spot, they would have received some injuries from the shots fired by the appellant, acquitted accused and absconding accused. It appears that they have tried to suppress their interestedness. All the three witnesses did not justify their presence at the time and place of occurrence. It does not appeal to the logic that the person whose near relative has been murdered neither made any resistance nor raised any hue and cry for help despite the fact that the alleged occurrence took place in an open place near the houses. It is alleged by the above witnesses that nine persons were firing from two hideouts and houses of the accused persons. All of whom were allegedly armed with Klashnikovs. It has also come from the mouth of the above three witnesses that the distance between them and the deceased was 9/10 steps, and the accused persons were firing from a distance of 30/35 yards with automatic weapons.

11. Suppose the statements of the above witnesses are believed to be true; in that case, the question arises that why and how the appellant and co-accused spared them and did not try to kill them when they could have easily killed them because they were empty handed and at their mercy, coupled with the fact that they could depose against them as eye-witnesses being relatives of the deceased. The mode and manner of the occurrence advanced by the prosecution witnesses are not appealable to the prudent mind. Further, it was claimed by the prosecution witnesses that as many as nine accused persons in total made firing with Kalashnikovs at the time and place of occurrence, and amidst indiscriminate firing, the above PWs did not even receive a single injury or scratch on their person during the whole occurrence except one Khyal Din who was not produced before the trial court as a witness. Had the above witnesses been present at the spot, they would not have been spared in view of the fact that they also had enmity with the accused party. We have noted with grave concern that the prosecution witnesses claimed that Shah Wali (PW-1), Abdul Latif (PW-3) and Aminullah (PW-5) were miraculously saved in the midst of the firing. Blessing them with such incredible consideration and showing them such favour is implausible and opposed to the natural behavior of any accused.

It is all the more illogical then being perceptive of the fact that if the witnesses were left alive, they would depose against the accused; even then, the appellant and his co-accused did not cause any injury to them. Such behavior runs counter to natural human conduct and behavior on the part of the accused.

12. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of Article 129 of the Qanun-e-Shahadat Order, 1984, that the conduct of the assailants, as deposed to by the witnesses, namely Shah Wali (PW-2) Abdul Latif (PW-3) and Aminullah (PW-5), as opposed to the common course of natural events and human conduct. Hence, we hold that the above witnesses were not present at the place of occurrence and did not witness the occurrence. The august Supreme Court of Pakistan, in the case Tariq Mehmood v. The State and others (2019 SCMR 1170), has observed as under:

"First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report."

13. The presence of the above witnesses becomes further doubtful because they were chance witnesses and were residing at Killi Wand, which is at a distance of one hour s drive from the place of occurrence, which was confirmed by PW-5, who stated during cross-examination that it takes an hour to reach Toda Safarzai on a motorcycle. Further, PW-2 stated during cross-examination that his house is at a distance of 3 kilometers from the place of occurrence. He further stated during cross-examination that the link road is patchy and broken. The above witnesses have not given any plausible explanation for their presence at the place and time of occurrence. They had no place of business near the place of occurrence; therefore, we hold that all the above witnesses are chance witnesses. The testimony of a chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In the normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of a chance witness may be relied upon, provided some convincing explanations appealing to a 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. Reliance may be placed on the cases reported as "Mst. Shazia Parveen v. The State" (2014 SCMR 1197) and "Muhammad Rafique v. The State" (2014 SCMR 1698).

14. It has also come on record that PW-2 did not name PW-3 and also did not state about his presence at the place of occurrence before the court. PW-3 Abdul Latif did not mention the name of PW-5 Aminullah about his presence at the place of occurrence, and PW-5 Aminullah did not name PW-5 Aminullah in his statement about his presence at the place of occurrence. This aspect of the matter also caused reasonable doubt in the prosecution case.

15. The so called eye-witnesses (PW-2, PW-3 and PW-5) are interested and inimical witnesses. PW-2 stated during cross-examination that he and Muhammad Shafiq (father of the deceased Faridullah) are cousins. He stated during cross-examination that Muhammad Shafiq also lodged an FIR against the relatives of the accused persons for an offence under section 302 P.P.C. He further stated during cross-examination that after the occurrence, the accused persons were shifted from their houses, however, he denied the contention of defense counsel that after the occurrence, they set the house of the accused person on fire and confirmed during cross-examination that in the said occurrence of setting the house of the accused on fire, an FIR was lodged in which he was nominated as an accused. PW-3 stated during cross-examination that it is correct to suggest that after the occurrence, an FIR was lodged about setting the house of the accused on fire, and it was a false case. He further stated during cross-examination that he and Muhammad Shafiq are cousins. PW-5 stated during cross-examination that his brother s name was Nasir Ahmed. He further stated during cross-examination that Muhammad Shafiq lodged an FIR of the murder of Nasir Ahmed against the relatives of the accused persons. He further stated during cross-examination that Mulla Shano (absconding accused) is pursuing the said case in the court. The above witnesses have a strong motive against the accused party, and have inimically deposed towards the appellant.

16. The most important aspect of the instant case is that the injured eye-witness, namely Khyal Din, was not produced before the court. All the witnesses stated in their statement that at the time of occurrence, due to the alleged firing of the accused persons, Khyal Din received firearm injuries, and the name of said Khyal Din is also mentioned in the FIR and in the report of the complainant Ex.P/1-A that the said Khyal Din received injuries.

A perusal of the order sheet of the trial court dated 14.11.2022 transpires that the complainant party filed an application to drop Khyal Din as a witness. The said Khyal Din was not produced as a witness before the trial court. His testimony was very crucial in the instant case of being injured witness as his testimony could have further strengthened the prosecution s version. However, the non-production of such important witnesses, as provided under Article 129(g) of Qanun-e-Shahadat Order 1984 and dictum laid down by the Hon ble Supreme Court in the case of Lal Khan v The State (2004 SCMR 1847) would cast an adverse inference, which brings us to the irresistible conclusion that had the said witness been produced before the court, he would not have supported the prosecution version.

17. The record further reveals that there are two versions of the prosecution case. One version was presented by the complainant, Dafedar Levies, according to which he received information on the day of occurrence that two parties had committed firing against each other in the area of Baratkhail, due to which Faridullah and Khyal Din received bullet injuries. On the other hand, while PWs appeared before the court, they stated that only the accused person fired upon them, and they were empty handed. This aspect of the matter also caused reasonable doubt in the prosecution case.

Even otherwise, when a single drop of dirt is mixed and dissolved in the tank of bulk clean water, it makes the whole dirty. In the same manner, when some falsehood is mixed with truth, the same makes the truth carrying the possibility of falsehood as a whole. The Hon ble Supreme Court of Pakistan had disbelieved the statement of an alleged eye-witness whose conduct remained unusual in a case law titled "Muhammad Khan and another v. The State reported as 1999 SCMR 1220" , wherein it was held that: "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against the natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond a reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective".

18. So far, the recovery of Kalashnikov at the instance of the appellant and positive Firearm Expert report are concerned; the prosecution produced Khan Gul Levies Sepoy (PW-8), suffice, to mention here that allegedly on 26.02.2022 in his presence, the appellant made a disclosure about the occurrence and on his pointation from the house of the appellant from a room a Kalashnikov was recovered. The alleged occurrence took place on 12.02.2022. The appellant was arrested on 14.02.2022, and the alleged recovery was affected on 26.02.2022 after twelve days of appellant s arrest. It has also come on record that after the occurrence, the accused persons shifted from their house to an unknown place, and allegedly, the house was set on fire and in this regard, the accused party also lodged a report against the complainant party. In such circumstances, how can it be possible that Kalashnikov was recovered on the piontation of the appellant? Even no document or any private witness was produced by the prosecution to establish either the house belonged to the appellant alone or he remained in exclusive possession of the said house. This aspect of the matter also caused reasonable doubt in the prosecution case.

19. The alleged occurrence took place on 12.02.2022, and according to PW-6, in his presence, the investigation officer took twenty one bullet empties of Kalashnikov from the place of occurrence. Allegedly the recovery was affected on pointation of the appellant on 26.02.2022 after fourteen days. As per the record the recovered Kalashnikov and empties were sent to Firearm Expert together on 07.03.2022 after twenty-five days after the recovery of bullet empties and twelve days after the recovery of the alleged Kalashnikov. Sending the crime weapon and bullet empties together with a delay of twenty-five days to the Firearm Expert created doubt in the prosecution case; therefore, the Forensic Expert s report in this regard is inconsequential to the prosecution case. Reliance is placed in the case titled as Nazir Ahmed v The State (2016 SCMR 1628) and Muhammad Ashraf v The State (2019 SCMR 652).

20. It is worthwhile to mention here that allegedly twenty-one empties were recovered from the place of occurrence, but according to the Firearms Expert report Ex.P/11-B, he received only two crime empties of 7.62 bore Kalashnikov, and there is no explanation on behalf of the prosecution as to where were the remaining nineteen bullet empties of Kalashnikov and why the same were not sent to Firearm Expert for analysis, which too creates reasonable doubt in the prosecution case.

21. All the above-narrated facts and circumstances, when evaluated on the judicial parlance, reflect that the prosecution has failed to establish the culpability of the appellant in the instant case through reliable, trustworthy and confidence-inspiring evidence. It is an established principle of law that for extending the benefit of doubt in favor of the accused, so many circumstances are not required; rather, one circumstance which creates a reasonable dent in the veracity of the prosecution version can be taken into consideration for the purpose not as a matter of grace rather as a matter of right.

22. From the facts and circumstances narrated above, we are persuaded to hold that the conviction passed by the learned trial court against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. Resultantly while setting aside the conviction and sentence recorded by the trial court in terms of judgment dated 21.02.2023, Crl. Appeal No.90/2023 filed by the appellant Hassan Khan, son of Lal Jan, is allowed as a consequence whereof he is ordered to be acquitted of the charge in FIR No. 3/2022 dated 12.02.2022 registered under Sections 302, 324, 147, 148 and 149 P.P.C at Levies Thana Killa Saifullah. He is directed to be released forthwith if not required in any other case.

JK/93/Bal. Appeal allowed.