Habibullah Shah Versus State
Abdul Fayaz, J .--- The appellant, Habib Ullah Shah has impugned the judgment dated 31.01.2024, rendered by learned Additional Sessions Judge, Karak at Takht-e-Nasrati, in a criminal case vide FIR No.116 dated 18.05.2020 under sections 302/324/34 P.P.C, Police Station, Shah Salim Takht-e-Nasrati, District Karak.
2. Hameed Ullah Shah (complainant) 18.05.2020 at 19:45 hours apprised the police in the emergency room in civil hospital Takht-e-Nasrati regarding the incident that he along with his brother Anwar Kamal Shah were heading to their house from the shop at their village. On reaching the spot, at about 18:30 hours, accused Habib Ullah Shah duly armed with fire-arm already sitting there on seeing the complainant party launched a murderous assault by firing at them with intention to kill as a result whereof his brother got hit and seriously injured, whereas, complainant remained luckily unhurt. With the help of co-villagers the deceased then injured was shifted to hospital where the injured succumbed to his injuries and died. The daily coming of accused to their house just to tease them was disclosed as motive for the crime. The above report of complainant was reduced into writing vide murasila , duly verified by one Yasir Arafat as a rider, followed by the FIR.
3. After completion of investigation, challan was submitted for trial. At the trial, prosecution in support of its case examined as many as 12 witnesses. After conclusion of prosecution evidence, accused was examined under section 342 Cr.P.C, however, neither he opted to be examined as his own witness nor wished to produce defence evidence. After hearing arguments, the learned trial Court vide impugned judgment dated 31.01.2024, the appellant was held guilty for the commission of the offence, sentenced him as follows:- i. under section 302(b) P.P.C the convict Habib Ullah Shah was found guilty for committing Qatl-e-amd of Anwar Kamal Shah deceased and thereby sentenced to imprisonment for life as Ta'azir and to pay fine of Rs.200,000/- (two lacs) payable to the legal heirs of the deceased under section/.544-A Cr.P.C in default whereof the convict shall further undergo one (06) months SI. ii. under section 324 P.P.C the convict Habib Ullah Shah was found guilty for committing ineffective attempt at the life of Hameed Ullah Shah (complainant) and thereby sentenced to five (05) years simple imprisonment. Both the sentences were order to run concurrently along with benefit of section 382-B Cr.P.C.
4. The present appellant being aggrieved of his conviction and sentence, has filed the instant Criminal Appeal No.26- B/2024 , while aggrieved there from the quantum of sentence in the instant criminal appeal, the complainant Hameed Ullah Shah has preferred Cr.R. No.15-B/2024 [Hameed Ullah Shah v. Habib Ullah Shah etc], whereas, by the State Cr.R.No.23-B/2024 [State v. Habib Ullah] both for enhancement of the same. As these matters have arisen out of one and the same judgment, so we intend to decide the same through this common judgment .
5. We have heard learned counsel for the parties along with learned A.A.G for the State at a considerable length and perused the record in the light of arguments so addressed.
6. Although the learned trial Court exercised its judicial mind to the facts and circumstances of the case, it is incumbent upon this Court to examine whether such approach was in consonance with law; whether the learned Judge duly appreciated the record and witness depositions; and whether the impugned judgment stands on firm evidentiary footing. The prosecution's case rests primarily upon a solitary eye-witness, namely, the complainant Hameed Ullah Shah (PW-10). Conviction on the testimony of a single witness, though permissible, mandates exceptional scrutiny and circumspection. It is trite that justice hinges not on the number of witnesses but the intrinsic worth and credibility of their testimony. Accordingly, it must be ascertained whether the complainant has convincingly established his presence at the scene and time alleged; as to whether the complainant was deposing against the appellant with malice in mind. To forestall any miscarriage of justice, we find it essential to undertake a meticulous reappraisal of the evidence, despite prior evaluation by the trial Court.
7. In this case, the key witness of the occurrence is Hameed Ullah Shah (complainant) aged about 60 years son of Mir Haidar Shah, resident of Zarin Killa, Tehsil Takht-e-Nasrati, District Karak, who appeared as PW-10 before the trial court. For ready scrutiny, his statement is reproduced as under:-
"Stated that the deceased Anwar Kamal Shah was my brother while the accused facing trial namely Habib Ullah Shah is my relative/second cousin. On 18.05.2020, I along with my deceased brother Anwar Kamal Shah, was going to our house from a shop situated at our village. When we reached to the place of occurrence i.e., thoroughfare situated at Zarin Killa. It was about 18:30 hours, when the accused facing trial duly armed with fire arm was sitting, who on seeing us, started firing at us with intent to commit our Qatle Amd, resultantly, my brother got hit and sustained serious injuries, while escape unhurt. I then shifted the deceased then injured to Civil Hospital Takht-e-Nasrati with the help of co-villagers and on reaching the hospital, he succumbed to his injuries. In the emergency of civil hospital Takht-eNasrati, I reported the matter regarding the occurrence to local police which was reduced in shape of murasila report already exhibited as Ex.PA/1. The contents of my report were read over to me and after admitting the same to be true, I thumb impressed my report, while PW Yasir Arafat verified my report by thumb impressing over the same as its rider. Motive for the offence was that the daughter in law of accused facing trial was enticed / taken away by Naseem Shah, the said Naseem Shah use to come our house being our relative to which the accused facing trial was annoyed and was teasing us. I also pointed out the place of occurrence to the Investigating Officer, who prepared the site plan at my instance and pointation. I charge the accused for the commission of offence."
8. Another significant witness in the instant case is Dr. Faheem Ullash, Medical Officer Type-C hospital, Takht-e-Nasrati, who was examined as PW-2, who conducted the PM examination on the dead body of the deceased namely, Anwar Kamal Shah. His statement for the proper assistance and guidance is reproduced hereunder:-
"Stated that on 18.05.2020, I conducted autopsy on the dead body of deceased Anwar Kamal Shah son of Mir Haider Khan brought by police constable Yasir No. 1179 and identified by Yasar Arafat and Zahid Iqbal. On examination, I found the following on his body:-
EXTERNAL APPEARANCE:-
Condition of subject: A healthy body with no decomposition, with stained blood clothes and body.
INJURIES:
1. A fire-arm entry wound on right back of chest, size lx] cm, 03 cm from midline and 05 c.m below right angle of scapula.
2. A fire-arm exit wound on the right front of chest, size 3x3 cm, 3 cm elbow right clavicle.
CRANIUM AND SPINAL CARD:
Intact.
THORAX.
Walls, ribs and cartilages, pleurae, right lung are perforated while rest of the organs were intact.
ABDOMEN:
All organs were intact.
REMARKS:
In my opinion the deceased received fire-arm injuries to vital organs (lungs) causes' cardiopulmonary arrest which lead to death.
Probable time that elapsed
Between Injury and death:- 20 to 40 minutes Between death and Postmortem:-01 to 03 hours.
After PM examination, the last worn clothes of the deceased were handed over to escorting constable.
Today, I have seen postmortem report Ex.PM (consisting upon 06 sheets) which is correct and correctly bears my signatures. The injury sheet and inquest report of the deceased also bear my endorsements correctly.
9. We also to reproduce the statement of Yasir Arafat (PW-6) who is identifier of the dead body of the deceased and was the nephew of the complainant and the deceased, which is as under:-
"The deceased Anwar Kamal Shah was my real maternal uncle. I correctly identified his dead body before the police as well as before the doctor in civil hospital Takht-e-Nasrati and also verified the report of complainant as its rider. My statement under section 161 Cr.P.C was recorded by the investigating officer under section 161 Cr.P.C. It is correct that I have not disclosed in my statement under section 161 Cr.P.C that the deceased was my maternal uncle. I was in my house when I heard fire shots. I reached to hospital at about 19:25 hours in the company of Zahid Iqbal, Hameed Ullah Shah and injured Anwar Kamal Shah. It is incorrect to suggest that today I recorded my statement on the basis of relevancy with the deceased as well as with the complainant."
10. As per averments of FIR, the incident had occurred on 18.05.2020 at about 18:30 (06:30 p.m) hours, whereas, the same was reported at about 19:45 (07:45 p.m) hours, with a considerable delay of 01 hour and 15 minutes. Per the relevant column of FIR, the distance between the spot and the police station would be about 05/06 kilometers while complainant (PW10) in his cross-examination has stated that "we left the place of occurrence at about 06:50 p.m and reached to hospital at 07:45 p.m, but he did not mention the source of their approach/transmission of the deceased then injured there rather he also did not mention this fact in his murasila report, so the above distance could easily be covered within half-an-hour, as such the occurrence should have been reported in the hospital at the most within 30 minutes of the incident particularly in the present era of plenty vehicular traffic availability, Therefore, the above unexplained delay in lodging the report leads this Court nowhere, but hold consultation and deliberation on the part of prosecution.
11. The instant case is based on the ocular account furnished by the complainant Hameed Ullah Shah (PW-10), as such the prosecution has to prove and establish the presence of the eye-witness. The complainant (PW-10) has stated in the murasilacum-FIR Ex.PA/1, which is hereby reproduced:-
12. Admittedly, he has stated that he along with his brother deceased Anwar Kamal Shah were coming from the village shop to their house and when reached to the place of incident there appellant Habib Ullah Shah son of Muhammad Rasul Khan of their village presently Shobli Banda was already sitting armed and no sooner he noticed them started firing at them. We have also seen the site-plan where in the rainy ravine ( Algada ) where the complainant has been shown at Point No.1, the deceased at Point No.2 while the appellant at Point No.3. It is also admitted fact that towards the Northern side of the place of incident the house of complainant PW-10 is situated while towards the South-east side the village shop is situated. Admittedly, the distance between Point Nos.1 and 2 is 10 feet while in between Points Nos.1 and 3 50 feet and in between Point Nos.2 and 3 is 45 feet. We have also noticed that according to the medical evidence, the deceased has received one fire-arm entry wound from the back side while its corresponding exit wound on the front of chest. The complainant has alleged that his life was also attempted at ineffectively which is not supported by the evidence. No doubt, the complainant has stated that he on the day of occurrence was coming along with his deceased brother from the village shop but they have not disclosed as to for what purpose they had gone to the village shop. At least there should be some physical circumstances or at least there should have been shown a reason for their visit to the shop, either for gossip or for the purchase of some commodities which has not been given neither in the FIR nor in the cross-examination or even in the site-plan the same purpose has not been explained.
13. From the place of "Waradat" allegedly the investigating officer has collected 08 empties of 7.62 bore it means that 08 volly of shots were made by the appellant while only one has hit the deceased. No doubt, the F.S.L report confirms that all the 08 empties were fired from one and the same weapon but it does not prove automatically the presence of complainant (PW-10). It is beyond our comprehension that they were coming from the village shop on "Kacha Rastha" of village Zarin Killa, the deceased and complainant were more exposed to the appellant in the front thoroughfare instead the deceased when turned as has been shown on the above mentioned "Paidala Rastha" he was fired allegedly by the appellant. The case of prosecution is that when they were noticed, they were fired at by the appellant. The "Kacha Rastha" intercept in the rainy ravine (Algada) , the complainant and the deceased from a distant place were visible to the appellant, then why he was not fired at by the appellant and he kept on waiting when the deceased turned to the "Paidal Rastha".
14. Keeping in view the motive part of the case, which was more particularly attributed to the complainant and the deceased was serving in PAF and he very rarely used to visit his home. It is in the evidence that one Mst. Ulfat Shahin, the daughter-in-law of the appellant had eloped with one of their relative of the deceased and that accused with whom the daughter-in-law of appellant had eloped, he used to visit the house of the complainant party. If it was the reason then he should have not spared the complainant (PW-10) instead he allegedly murdered the deceased Anwar Kamal Shah. Even, other-wise, the motive part of the case is beyond our comprehension for the reason that the person who used to come to the house of complainant was let off who was more guilty for the elopement instead of the complainant party. As to what circumstances compelled the appellant to let off the person who enticed away the daughter-in-law of the appellant instead he had murdered the deceased Anwar Kamal Shah.
15. Moreover, the ocular account is in conflict with the medical evidence as this is the case of the complainant that It means that the front of the deceased and that of the complainant was towards the appellant and the deceased should have received fire-arm injuries on his front side while in the instant case the ocular account is in conflict with the medical evidence on two grounds, firstly, that the deceased has received fire-arm injuries on his back side while its exit is on front side and secondly, that the missile has travelled from downward to upward which fact we have noticed from the pictorial available on the judicial file.
16. We have also reproduced the statement of PW-6 who has admitted in his cross-examination that "I was in my house, when I heard fire shot and I reached to the hsoptial at about 19:25 hours in the company of Zahid Iqbal, Hameed Ulalh (complainant) and injured Anwar Kamal Shah" it means that when the deceased was murdered all the three person rushed to the place of incident and shifted the dead body of the deceased to the hospital while the statement of PW-10 is saying otherwise, in the murasila as well as in the court statement he has admitted that the dead body was shifted with the help of the co-villagers which contradicts the statement of the person who verified the report of the complainant. He is non-else but the real nephew of the deceased and the complainant. The identifier (PW-6) and the complainant (PW-10) nowhere in their statements stated that their hands were besmeared with the blood of the deceased nor this fact has been mentioned by the investigating officer in his statement. Moreover, we have also observed and have discussed above that the motive was more attributed to the complainant (PW-10) then at least he should not have been spared if at all he was present at the time of incident.
17. Yet another aspect of the case which adversely effect the authenticity of presence of complainant (PW-10). It is in the evidence and we have observed in the PM report that the deceased was examined by the doctor at 07:25 p.m, on 18.05.2020. Now, if we keep this time of examination of the dead body in juxta position with the time of incident and the time of report which according to the murasila report Ex.PA/1 is 18:30 hours and 19:45 hours, respectively, meaning thereby, that when the dead body was being examined, the report was not yet recorded. Even, other-wise, we have also observed that according to the police officer who recorded the report of the complainant is Awal Zaman (PW-5) who during the days of occurrence was posted as ASHO, Police Station, Shah Saleem has admitted rather has stated in examination-in-chief that he firstly prepared the inquest report and injury sheet and thereafter sent the dead body under the escort of constable Yasir No. 1779 to the doctor for PM examination" meaning thereby, that when he recorded the report of the complainant (PW-10) at 19:45 hours, thereafter, prepared the injury sheet and inquest report, so by then the PM was already conducted according to the statement of Medical Officer Dr.Faheem Ullah (PW-2) so the PM examination clearly confirm the factum of non-presence of complainant at the time of the alleged occurrence with the deceased. Moreover, we have also observed from the available record that the deceased was 45/46 years old while the complainant is 54/56 years, (10 years older to the deceased) and this is against our Pashtoon Riwayaat that whenever two brother with difference of such age is going on the way, admittedly, the elder brother will go ahead while in the instant case the younger was heading the elder one, thus, keeping in view the overall circumstances we have reached to the conclusion that the prosecution has not established the presence of complainant Hameed Ullah Shah (PW-10) at the time of alleged occurrence. In the light of what has been stated above, leads this Court to hold that the occurrence was not witnessed by the complainant PW-10, reliance in this respect is placed on the case "Mst. Saddan Bibi v. Muhammad Amir and others" [2005 SCMR 1128], wherein it was held that:-
"5. Similarly was the position of Shah Nawaz (P. W.12). He was the one with whom the accused party was allegedly in litigation about the land in question and thus he was the one against whom the respondents had the alleged motive. He claimed to have been present at the place of occurrence but the respondents never attempted to cause any harm to him. Such an alleged conduct of the respondents does not inspire confidence and it was; therefore, rightly held by the High Court that the presence of Shah Nawaz P. W. at the place of occurrence at the relevant time was also open to serious doubts.
Likewise, in another case "Muhammad Ali v. The State" [2015 SCMR 137], it was held:-
"5. According to the prosecution the FIR has been registered on 10-30 a.m. on the same day for the incident which has taken place at 9-15 a.m. According to P. W3 Amjad Ali and P. W.4 Manzoor Ahmed, who allegedly had seen the occurrence, the incident has taken place at an open place which was not surrounded by the houses. Admittedly both the P. Ws. are not residents of the locality where the occurrence took place and they are chance witnesses. The role ascribed to Noor Muhammad and Riaz is in contradiction with the medical evidence, as the complainant in his supplementary statement has mentioned that Noor Muhammad gave a hatchet blow on the head of the deceased from the sharp side whereas the said injury was declared by the doctor as caused by a blunt weapon. The medical evidence also does not support the ocular account qua the number of injuries as according to the Doctor P. W.6 the deceased had received as many as 8 injuries. Injuries Nos. 6 and 8 were incised wounds, injuries Nos. 1, 2 and 7 were caused by blunt weapon while injuries Nos. 3, 4 and 5 were caused by firearms. Only one injury on thigh has been attributed to the appellant. The doctor has also found blackening on the injuries which means that the injuries could have been caused from a distance of three feet or less. But according to site plan, the distance between the assailants and the deceased was about 2 karams which is equal to 11 feet. In such circumstances, the presence of the eye-witnesses at the spot is doubtful. Had they been present at the spot and had witnessed the occurrence, they could have ascribed the correct role to the accused and explain all the injuries on the person of the deceased. "
The above view of un-witnessed occurrence was also held by the august Supreme Court in another case "Au Sher and others v. The State" [2008 SCMR 707], the relevant portion of the judgment is reproduced as under:-
"17. The two eye-witnesses not being independent and natural witnesses of the occurrence; infirmities having been found in the prosecution case and doubts having crept into the prosecution version of the occurrence; the possibility of occurrence having gone un-witnessed and no independent corroboration being available in support of the ocular testimony, it cannot be said that the prosecution had succeeded in proving the guilt of the two convicts beyond all reasonable doubts."
18. Apart from above, there are numerous infirmities in the prosecution case coupled with the material contradiction in the statements of the PWs which create serious doubts in the prosecution version and not worth reliance to record conviction. Non-mentioning the kind of weapon of offence in the FIR and failure of investigating officer to recover the weapon of offence also caste shadow of doubt in the prosecution version.
19. In the light of above referred circumstances, we find that the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. The impugned judgment is suffering from inherent defect which calls for interference of this Court. Therefore, the instant criminal appeal is allowed and impugned judgment of conviction and sentence dated 31.01.2024 passed by the learned Additional Sessions Judge, Karak at Takhte-Nasrati, is hereby set-aside. Consequently the appellant/ convict namely-Habib Ullah Shah is acquitted of the charge levelled against him in the case vide FIR No.116 dated 18.05.2020 under sections 302/324 P.P.C, Police Station, Shah Salim Takht-e-Nasrati, District Karak. The appellant being in custody be set at liberty, if not required to be detained in any other case.
20. As we have allowed the instant appeal, therefore, the connected Cr.R No.15-B/2024 [Hameed Ullah Shah v. Habib Ullah Shah etc], and Cr.R.No.23-B/2024 [State v. Habib Ullah] are dismissed being infructuous.
JK/4/P Appeal allowed.