Full Judgment Text & Judicial Ruling

2021 Y L R Note 132 [Peshawar (Bannu Bench)] Before Syed Muhammad Attique Shah and Sahibzada Asadullah, JJ JAVED ULLAH and another---Appellants Versus The STATE and another---Respondents Criminal Appeal No. 242-B of 2019, decided on 16th March, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged that they made firing upon complainant and his son, due to which, son of complainant died---Motive for the occurrence was stated to be previous blood-feud between the parties---Record showed that the complainant had stated that at the time of incident he along with his deceased son was present in front of his house, when at once all the accused appeared duly armed, started firing at them, where he escaped unhurt, but his son got injured---Facts could not be ignored that the parties were locked in serious enmities and that in that eventuality it was the complainant who should be the prime target and not the son---Said fact needed appreciation as to how the complainant escaped unhurt, despite the fact that both the accused were fully loaded with sophisticated weapons and he too was at their mercy---Investigating Officer had observed bullet marks on the wall of the house just behind the complainant---Had the complainant been present at the time of incident, the bullet instead of striking the wall, lying behind, would have landed on the complainant---Complainant when appeared before the court stated that the deceased was hurriedly shifted to the hospital to save his life and that a witness accompanied him to the hospital, however, it was yet to know as to why the witness did not verify the report despite his presence there---Complainant had stated that at the time of report witness was not by his side---Had witness visited the hospital, his presence would have been marked by the scribe, as he did about the co-villagers---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope---Accused were charged that they made firing upon complainant and his son, due to which, son of complainant died---Both the witnesses i.e. the scribe to whom the matter was reported and the Medical Officer who examined the injured, confirmed that the injured was oriented in time and space and was capable to talk---Medical Officer, who prepared the Medico-Legal Certificate, found that the injured was oriented in time and space---If it was admitted that witness was not in reach at the time of report, what restrained the Police Official to ask verification from the injured, as by then he was fully conscious---Prosecution was still to answer that why the complainant choose to report instead of the injured, when the injured was fully conscious, oriented in time and space and was declared capable to talk---Comparing the two, it was expected more honesty from the son than the father, as the father had an axe to grind, whereas the son who was hardly aged thirteen years, was alien to such influences, had he reported, the court would feel less hesitation to accede, however, it was the choice between the two to report, that burdened the prosecution to do more---Scribe stated that he avoided the injured to report as he was minor, but never ever he stated that he attempted to record his statement and that he could not understand, as he was lacking maturity---Inference could be drawn that the complainant came forwarded with twisted facts---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances. Muhammad Javed v. The State 2020 SCMR 2116 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Contradictions in the statement of witnesses--- Scope--- Accused were charged that they made firing upon complainant and his son, due to which, son of complainant was hit and died---Record showed that the witnesses failed to reconcile the time of incident, the time of report and the time at which the injured was examined---Complainant stated that it was 07.15 p.m. when the incident occurred and that the matter was reported at 07.50 p.m., Medical Officer stated that the injured was produced before him at 07.50 p.m., however, it was yet to know that how the injured was examined at 07.50 p.m., when the matter was not reported by then---Scribe stated that the incident was reported at 07.50 p.m., it took 25 minutes to report and prepare the injury sheet---Not possible to ignore that one witness, who escorted the injured to the Medical Officer along with the injury sheet, stated that he produced the injured before the Medical Officer at 08.20 p.m.---Statements of all the three witnesses, when compared on that particular aspect of the case, no other inference could be drawn but that the incident did not occur at the stated time---Said factor alone was sufficient for holding that the complainant was not present with the deceased at the time of incident---Later entry of witness further damaged the case---Complainant at the time of report did not name the said witness to have seen the occurrence---Complainant on that particular aspect of the case, stated that had witness been present at the time of report, he would have been named in the FIR---Investigating Officer stated that it was at the time of spot inspection that witness disclosed himself to be the eye-witness---Though, the site plan was prepared at the instance of the complainant as well as the eye-witness, but the abrupt appearance of said witness told another story---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Withholding material witness---Effect---Accused were charged that they made firing upon complainant and his son, due to which, son of complainant died---Record showed that the alleged eye-witness was not examined rather the prosecution preferred to abandon him---Reason for his non-production were stated to be his advanced age and his mental disability to understand the proceedings---Question arose as to whether it was the counsel representing the complainant to determine the physical and mental condition of the witness or that it was the Trial Court to determine the same, answer was that, it was the Trial Court---Had the said witness been present at the time of incident he would have been produced by the prosecution but his non-production took to draw an inference that his appearance on the scene was nothing more but a stopgap arrangement---Article 129(g) of the Qanun-e-Shahadat, 1984 would cater for the situation---Circumstances established that the prose-cution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances. Riaz Ahmad v. The State 2010 SCMR 846 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Site plan---Scope---Accused were charged that they made firing upon complainant and his son, due to which, son of complainant died---Investigating Officer prepared the site plan on pointation of the witnesses with specific points assigned to either side---Inter-se distance between the complainant, the deceased and the assailants had been given as 40/45 paces and from such a long distance it was hard for the accused to select the target, rather their prime target should have been the complainant---Site plan belied the stance of the complainant---Had the complainant been present he would not have escaped unhurt, as he was within the firing range of the accused---Said aspect of the case dispelled the impression that the accused were interested in killing the deceased, as the motive was with the complainant---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances. Zahir Shah v. The State 2019 MLD 1562 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Delay of six days in sending the empties for analysis---Scope---Accused were charged that they made firing upon complainant and his son, due to which, son of complainant died---Record showed that the empties were collected from the spot and were received at the Forensic Science Laboratory after five days, but the Investigating Officer could not explain the delay caused---Neither the moharrir of the concerned Police Station was produced nor the Police Official who took the same to the office of the Chemical Examiner, what to say of collection of an abstract from the register No. 19, when such was the state of affairs, thus, the evidentiary value of that piece of evidence did not confirm and was as such excluded of consideration---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Common intention---Scope---Accused were charged that they made firing upon complainant and his son, due to which, son of complainant died---Two persons were charged for a solitary injury on person of the deceased and the prosecution was to answer that whose fire shot proved fatal---Joint enmity though was alleged to both of the accused, but the prosecution could not collect the required substance and even it failed to prove the shared intention between the two---Fact could not ignore that both the accused were shown armed with Kalashnikovs, but the recovery of only seven empties from the place of incident negated the version of the complainant, rather it told the involvement of a single accused---Had there been two accused the result would have been different with greater recoveries from the spot---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope---Accused were charged that they made firing upon complainant and his son, due to which, son of complainant died---Medical evidence did not support the case of the prosecution as the ocular account and the medical evidence were in conflict with each other---Medical Officer, who examined the injured stated that the deceased received a single firearm injury on his right chest with its exit on the left side of lower abdomen---Site plan depicted that the accused were at points Nos.3 and 4, whereas the complainant and the deceased were occupying points Nos.1 and 2, facing one another, in that eventuality the deceased should have received the firearm entry wound on his chest with its exit on his back, but the situation told otherwise---Direction of the wound was from above to downwards which further negated the stance of the complainant---Said conflict between the two shook the very foundation of the prosecution case---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances. (i) Criminal trial--- ----Medical evidence---Scope---Medical evidence is confirmatory in nature---When direct ocular account is available on file, it is the ocular account which is to be preferred and taken into consideration, provided it is confidence inspiring. Akhter Saleem and another v. The State and another 2019 MLD 1107 rel. (j) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Scope---Accused were charged that they made firing upon complainant and his son, due to which, son of complainant died---Prosecution stressed that the accused had strong motive to commit the offence, but the prosecution could not establish the motive through independent witnesses and from an independent source---Nothing was brought on record in black and white as to what was the urging factor for the accused to commit murder of the deceased, had it been so ,the complainant would have been the prime target---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances. Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel. (k) Criminal trial--- ----Abscondence---Scope---Abscondence alone could not be a substitute for the direct evidence. Muhammad Sadiq v. The State 2017 SCMR 144 rel. Anwar-ul-Haq for Appellants. Shahid Hameed Qureshi, Addl. A.G. for the State. Farooq Khan Sokarri for Respondents. Date of hearing: 16th March, 2021. JUDGMENT

SAHIBZADA ASADULLAH, J.---The appellants Javedullah and Anwar Khan have called in question the judgment dated 31.07.2019, rendered by learned Additional Sessions Judge-I, Bannu, whereby the appellants Javedullah and Anwar Khan have been convicted under section 302(b), P.P.C. read with section 34 P.P.C. and sentenced to life imprisonment for committing Qatl-i-Amd of deceased Abdullah with Rs.5,00,000/- (five lac) each, as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased or in default thereof, to undergo six months' simple imprisonment. They were further convicted under section 324, P.P.C read with section 34 and sentenced to 05 years Rigorous Imprisonment for an attempt to commit Qatl-e-Amd of complainant Arab Khan with a fine of Rs.1,00,000/- (one lac) each or in default 03 months SI. The benefit of section 382-B, Cr.P.C. has also been extended to the convicts. 2. Brief facts of the case are that on 17.08.2017 at about 19:50 hours, complainant Arab Khan along with dead body of his son Abdullah reported the matter to the police at Civil Hospital, Bannu, to the effect that on the eventful day, he along with his deceased son was present outside their house; that at about 1915 hours, the accused Javedullah and Anwar Khan duly armed with their respective Kalashnikovs came there and at once started firing at them, resultantly, his son got hit and fell down to the ground, while he luckily escaped unhurt. After commission of the offence, both the accused decamped from the spot. The complainant could do nothing being empty handed. Motive for the occurrence was stated to be previous blood feud between the parties. On the report of complainant, Hidayatullah ASI (PW-8) the then Incharge Casualty D.H.Q Hospital, Bannu drafted Murasila Ex.PW-8/1, read over contents of the report to the complainant and after admitting it correct, he thumb impressed the same. He prepared injury sheet of the deceased and sent him to the doctor under the escort of Constable Inam Ullah (PW-6). Murasila was transmitted to the police station, where Khandan Khan ASI (PW-3) reduced report of the complainant in the shape of FIR (Ex.PW-3/1). After completion of investigation, prosecution submitted complete challan against both the accused. After complying with the provision under section 265-C Cr.P.C, the accused were charge sheeted on 30.04.2018, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced and examined as many as 14 witnesses, where after, the accused were examined under section 342 Cr.P.C, wherein they professed innocence and false implication, however, they did not wish to be examined on oath as provided under section 340(2), Cr.P.C, nor opted to produce defence evidence. After hearing arguments from both the sides, the learned trial Court vide impugned judgment dated 18.07.2019, convicted the accused and sentenced them, as mentioned above. The convicts/ appellants filed the instant criminal appeal against their conviction, while the complainant Arab Khan has filed Criminal Revision, No.58-B of 2019 for enhancement of sentence awarded to the appellants. Since both the matters are the outcome of one and the same judgment, therefore, we intend to dispose of the same through this common judgment. 3. The learned counsel for the parties along with Addl: Advocate General representing the State were heard at length and with their valuable assistance the record was gone through. 4. The unfortunate incident claimed the life of a minor boy aged about 13/14 years, which led to a charge against the appellants. The report was made by the complainant who happens to be the father of deceased. The tragedy occurred in front of the house of the complainant at 07:15 p.m. and the matter was reported at 07:50 p.m. to the casualty police of Civil Hospital, Bannu. The appellants were attested when they failed to get their bail before arrest confirmed. 5. It was after a full dress trial that the appellants were convicted, which led them to this Court in an appeal against conviction. Though, the matter was promptly reported, but this Court is to see as to whether the incident occurred in the mode, manner and at the stated time. True that complainant is the real father and substitution is a rear phenomenon, but equally true that the parties are involved in previous blood feud. The deadliest blood feuds between the parties put on guard this Court, first to assess the veracity of this witness, then to decide fate of the appellants in light of the collected material and the produced evidence, so that miscarriage of justice could be avoided. We cannot ignore that it was the statement of a solitary eye-witness which found favour with the trial Court and in the like situation the Courts of law must proceed with great care and caution, to avoid an unholy haste, which leads to catastrophe and perpetuating injustice. 6. The deceased then injured soon after receiving firearm injury was rushed to Civil Hospital, Bannu, where the events were narrated to one Hidayat Ullah ASI, which led to the FIR (ibid), where after preparation of the injury sheet, the injured was produced before the doctor for his medical examination. It was one Inam Ullah, who escorted the injured to the doctor and handed over his injury sheet. The doctor examined the injured at 07:50 pm and prepared his medico-legal certificate. 7. The complainant was examined as PW-10, who stated that at the time of incident he along with his deceased son was present in front of his house, when all at once the accused appeared duly armed, started firing at them, where he escaped unhurt, but his son, Abdullah got injured. We cannot ignore that the parties are locked in serious enmities, and that in that eventuality it was the complainant who should be the prime target and not the son. It needs appreciation that how the complainant escaped unhurt, despite the fact that both the accused were fully loaded with sophisticated weapons and he too was at their mercy. It is of prime importance to mention that the investigating officer observed bullet marks on the wall of his house just behind the complainant. Had the complainant been present at the time of incident, the bullet instead of striking the wall, lying behind, would have landed on the complainant. The complainant when appeared before the Court, stated that the deceased was hurriedly shifted to the hospital to save his life, and that PW Muhammad Niaz accompanied him to the hospital. We are yet to know that why Muhammad Niaz did not verify the report despite of his being present in the hospital. Though, the complainant stated that at the time of report Muhammad Niaz was not by his side, but he ignored that the injured was lying in the emergency room and the matter was reported there, had PW Muhammad Niaz visited the hospital, his presence would have been marked by the scribe, as he did of the co-villagers. Both the witnesses i.e. the scribe to whom the matter was reported and the doctor who examined the injured, without hesitation confirmed that the injured was oriented in time and space and was capable to talk. The scribe was asked, who replied that the injured was capable to talk. The doctor who prepared the medico-legal certificate, held that the injured was oriented in time and space. If we admit that Muhammad Niaz was not in reach at the time of report, what restrained the police official to ask verification from the injured, as by then he was fully conscious. The prosecution is still to answer, that why the complainant chose to report instead of the injured, that too when the injured was fully conscious, oriented in time and space and was declared capable to talk. Comparing the two, we expect more honesty from the son than the father, as the father had an axe to grind, whereas the son who was hardly thirteen years, was alien to such influences, had he reported, the Courts would feel less hesitation to accede. It was the choice between the two to report, that burdened the prosecution to do more. The scribe, who was examined as PW-8, stated that he avoided the injured to report as he was minor, but never ever he stated that he attempted to record his statement and that he could not understand, as he was lacking maturity. In the situation at hand an inference can be drawn that the complainant came forwarded with twisted facts. In case titled "Muhammad Javed v. The State" (2020 SCMR 2116), it is held that: "The deceased, in injured condition, was medically examined at 7:15 p.m. under a police docket carried by Aamir Mehmood 1112/C (PW-6); he was noted with an entry wound on the right buttock; he was fully conscious, well-oriented with stable vitals; it is somewhat surprising that despite capacity, he did not opt for a statement. Position taken by the Investigating Officer that "As per opinion of the doctor, the injured was not in a condition to give statement" stands contradicted by the observations recorded by Dr. Faheem Khan, (PW-1) in MLR (Ex.PA)." 8. The witnesses failed to reconcile the time of incident, the time of report and the time at which the injured was examined. The complainant who appeared as PW-10, stated that it was 07:15 pm when the incident occurred and that the matter was reported at 07:50 pm. The doctor was examined as PW-2, who stated that the injured was produced before him at 07:50 pm. We are yet to know that how the injured was examined at 07:50 pm, when the matter was not reported by then. The scribe was examined as PW-8, who stated that the incident was reported at 07:50 pm, it took 25 minutes to report and prepare the injury sheet. In the like situation we cannot ignore one PW Inam Ullah, who escorted the injured to the doctor along with the injury sheet, who was examined as PW-6, who stated that he produced the injured before the doctor at 20:20 hours. When the statements of all the three are compared on this particular aspect of the case, no other inference can be drawn but that the incident did not occur at the stated time. This factor alone is sufficient for holding that the complainant was not present with the deceased at the time of incident. 9. The later entry of PW Muhammad Niaz further damaged the case. The complainant at the time of report did not name Muhammad Niaz to have seen the occurrence. When the complainant was asked on this particular aspect of the case, he replied that had Muhammad Niaz been present at the time of report, he would have been named in the FIR, astonishingly, the investigating officer stated that it was at the time of spot inspection that Muhammad Niaz disclosed himself to be the eye-witness. Though, the site plan was prepared at the instance of the complainant as well as the eye-witness, but the abrupt appearance of PW Muhammad Niaz tells another story. 10. It is pertinent to mention that the complainant and the eye-witness were found present at the spot when the investigating officer reached there. The investigating officer was accompanied by few police officials, where one of the marginal witness who was produced as PW-12, he stated that he along with the investigating officer reached to the place of incident within 20 minutes from the Police Station after receiving copy of the FIR, whereas the investigating officer stated that it consumed…

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