Full Judgment Text & Judicial Ruling

2022 M L D 1097 [Peshawar (Bannu Bench)] Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ MUHAMMAD KARIM---Appellant Versus The STATE and another---Respondents Criminal Appeal No.138-B of 2019, decided on 21st September, 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---Presence of the eyewitness at the place and time of occurrence was doubtful---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Motive behind the occurrence was stated to be the blood feud between the parties---Record told that it was the deceased who received the firearm injuries and no injury was caused to the complainant, though the complainant charged the accused for firing at him, but the same proved ineffective---Inter-se distance between accused and the complainant was so short that had he been present and was fired at, he would not have survived, but the circumstances told otherwise---Complainant was yet to explain that when the Investigating Officer reached to the spot, why he did not produce the purchased items---Interesting to note that when the deceased received fatal shot and fell to the ground even then the household articles were in possession of the complainant, which were handed over to one of his villagers---On one hand, the conduct of the complainant was unnatural and on the other, if the said villager was present at the time of incident, what precluded the complainant to disclose his name to the Investigating Officer and that why his name was not included in the calendar of witnesses---Prosecution travelled with strange behaviour, despite the fact the injured was available in the hospital at the time of report, but was not asked to verify the report made by the complainant, that too, in his presence---Presence of the complainant had put in a fix and it was important to search for circumstances that substantiate his claim---Complainant during court statement stated that he hurriedly transported the dead-body of the deceased to the hospital, knowing the fact that the deceased breathed his last on the spot---Complainant when knew that the deceased had died, then why the dead-body was not shifted to the local Police Station, situated at a distance of three furlong and that why the incident was reported in the hospital---Another intriguing aspect of the case was that the report was made to the scribe at 01:30 p.m. who thereafter prepared the injury sheet and inquest report, but the doctor disclosed the time of arrival of the dead-body as 01:15 p.m. and the time of post-mortem as 02:00 p.m.---When dead-body was present before the doctor at 01:15 pm, then how the report was made at 01:30 p.m. and that why the doctor did not conduct the post-mortem examination soon after the dead-body was produced before him---Delay caused gave an inference that all waited for arrival of the complainant, whose village was situated at a distance of one hour travel---Overall circumstances strengthened the belief that after receiving the firearm injuries the deceased was shifted by the people to the hospital, as the complainant was not available at the time of incident---Said fact was further corroborated by the fact that in his report, the complainant specified the weapon of offence as pistol, whereas in the inquest report the word deadly weapon had been used---Had the report been made in the mode and manner, then the scribe instead using the word "firearm" would have used the word "pistol" and the complainant would have also figured in the columns of identification of both the inquest and post-mortem reports---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, 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---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Complainant when appeared before the Trial Court stated that while present on the spot with the Investigating Officer, along with Police Officials brought the accused and in his presence .30 bore pistol along with ammunitions were recovered from the accused by the Investigating Officer---Investigating Officer during his Court statement stated that the accused was arrested a little away from the Police Station and that it was he who recovered the pistol along with ammunitions from his personal possession---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances. (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---Benefit of doubt---Recovery of weapon of offence from the possession of accused---Reliance---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Police Official/ASI stated that at a distance of one furlong from the police station, the accused was arrested and at the time of arrest, he recovered .30 bore pistol along with fitted magazine containing live rounds, but while preparing the card of arrest said witness did not mention the recoveries effected from personal possession of the accused---Prosecution was to tell as to whether it was ASI/Police Official, who arrested the accused and effected recoveries from his personal possession or, that it was the Investigating Officer who recovered the pistol along with ammunition---Both the said witness did not support each other the way the recoveries were effected---Situation was further deteriorated by the complainant, when he stated that the Investigating Officer recovered the weapon of offence from personal possession of the accused in his presence---Conflict among the three spoiled the validity of that piece of evidence---Another aspect of the case was that soon after its alleged recovery, the pistol being the weapon of offence was not sealed into parcel and the possibility could not excluded of its having been tampered---Investigating Officer did not record statements of the concerned Police Officials to establish its safe custody---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances. (d) 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---Delay of more than one month in sending the weapon of offence for analysis---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Weapon was allegedly taken into possession on the day of incident but the same was received by the Forensic Sciences Laboratory, with a considerable delay of more than one month---Prosecution failed to explain that where such important piece of evidence was lying in the intervening period---Prosecution could not explain the safe custody and its delayed sending to the laboratory---More interestingly, neither the statement of the Police Official in whose custody the said weapon was lying nor the statement of the concerned Police Official who took the same to the Forensic Sciences Laboratory, was recorded---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstance. (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---Benefit of doubt---Mode and manner of the arrest of the accused was doubtful---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Knowing the fact that accused had killed the deceased, the accused was still roaming around the concerned Police Station, that too, the weapon of offence in possession---Such was hard to believe that right from the time of occurrence the accused was waiting the local police to arrest him, despite having the opportunity to escape---Overall situation portrayed, left no room to doubt that the accused was not arrested at the stated time and in the given manner---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances. Hayat Ullah v. The State 2018 SCMR 2092 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---Benefit of doubt---Ocular account and medical evidence---Conflict---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Complainant in his court statement stated that after purchasing the house hold articles they were proceeding towards the Datson Adda (Bus stop)---Site plan depicted that while moving towards Adda from point of the complainant and deceased, one must face the east and in that eventuality, the deceased must received firearm entry wounds on his front with its exit on his back, but the medical evidence did not support the case of the prosecution---No doubt, medical evidence was confirmatory in nature and it could not outweigh the ocular account provided the ocular account was confidence inspiring---In case where a witness failed to establish his presence on the spot then in that situation resort could be made to the medical evidence, and in that eventuality it was the medical evidence that steered the wheel---Complainant could not convince regarding his presence on the spot when the deceased was done to death, then the conflict between the medical and ocular account could not be ignored---Conflict between the two had damaged the prosecution case beyond repair---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances. Amin Ali and another v. The State 2011 SCMR 323 and Mansab Ali v. The State 2019 SCMR 1306 rel. (g) 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 evidence---Scope---Accused was charged that he along with his co-accused made firing, due to which brother of the complainant was hit and died---Prosecution had two important witnesses in its armoury but with no plausible explanation was given that why they were not produced---Injured was one of the most important witnesses, that too, with stamp of injuries on his person, but neither he was produced before the Trial Court nor the need was felt to verify the report of the complainant from him---Investigating Officer did not mention the reasons which stopped him from producing the injured witness before the trial Court---Complainant introduced the presence of one "Y" at the time of incident but, he too was not produced before the Investigating Officer to record his statement regarding the incident---If best available evidence was not produced, then inference must always be drawn against the prosecution, that had he been produced, he would not have supported the false claim of the complainant---Circumstances established that the prosecution did not succeed in bringing home guilt against the accused---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances. Tahir Khan v. The State 2011 SCMR 646 rel. Salah-ud-Din Marwat for Appellant. Complainant in person. Qudratullah Khan Gandapur, Assistant Advocate General for the State. Date of hearing: 21st September, 2021. JUDGMENT SAHIBZADA ASADULLAH, J.---The appellant Muhammad Karim, through the instant criminal appeal, has assailed the judgment dated 29.4.2019, rendered by learned Additional Sessions Lakki Marwat, whereby the appellant was convicted under section 302(b) P.P.C., and sentenced to life imprisonment for committing qatl-i-amd of deceased Sakhi Marjan, with Rs.2,00,000/- (two lac), as compensation under section 544-A Cr.P.C. to the legal heirs of deceased or in default thereof, to undergo six months simple imprisonmmt. He was further convicted under section 15 Arms Act and sentenced to three years rigorous imprisonment with a fine of Rs.10,000/- or in default thereof, to further suffer six months simple imprisonment. Benefit of section 382-B, Cr.P.C., was also extended to the convict. 2. Brief facts of the case, as divulged from the FIR, are that on 05.02.2017 at 13:30 hours, complainant Gul Rehman brought the dead-body of his brother Sakhi Marjan to City Hospital, Lakki Marwat, where he reported the matter to the local police, to the effect that on the eventful day, he along with his brother Sakhi Marjan came to Lakki Bazaar for purchase of groceries, that after purchase of groceries, when they reached at Adda Datson, near Habib Bank when at about 12:55 hours, accused Muhammad Karim and Jumma Khan sons of Muhammad Ali Khan, duly armed with pistols suddenly emerged in the street and started firing upon the complainant party with their respective weapons, with intention to do away with them, resultantly, his brother Sakhi Marjan got hit and fell down, while the complainant fortunately escaped unhurt. After the occurrence, both the accused fled away. When the complainant party attended the injured, by then he had succumbed to his injuries. Motive for the occurrence was stated to be the blood-feud between the parties, as some 29/30 years ago, father of the appellant was killed, hence, the instant FIR. 3. After completion of necessary investigation, prosecution submitted challan against the accused/appellant, while co-accused Jumma Khan remained fugitive from law. At the commencement of trial against the accused/appellant, prosecution produced and examined as many as nine witnesses, whereafter, statement of accused was recorded under section 342, Cr.P.C, wherein he professed innocence, however, he neither opted to be examined on oath as provided under section 340(2), Cr.P.C. nor produced evidence in his defence. After hearing arguments of learned counsel for the parties, learned trial Court vide impugned judgment 29.04.2019, convicted the appellant and sentenced him, as mentioned in earlier part of the judgment, whereas the absconding co-accused was declared as Proclaimed Offender, hence, the instant appeal. 4. We have heard learned counsel for the appellant along with learned A.A.G for the State at length and with their valuable assistance, the record was gone through. 5. The gory incident claimed the life of deceased Sakhi Marjan, leading to a charge against the appellant and his brother namely Juma Khan. The incident was stated to be witnessed by the complainant Gul Rehman. It is pertinent to mention that from the fire shot alleged to the appellant and others, a passerby namely Aziz-ur-Rehman also received an injury. The matter was reported by the complainant to the local police at City Hospital Lakki. The appellant was shown arrested on the day of incident and from his personal possession a .30 pistol along with ammunitions were taken into possession. The appellant faced the trial and was ultimately convicted for the offences charged, vide the impugned judgment dated 29.04.2019. 6. True, that the incident was witnessed by the complainant, and that the accused/appellant was arrested on the day of incident, but equally true, that mere arrest of the appellant and recovery of the alleged weapon of offence will not serve the purpose, rather the prosecution is under the bounden duty to establish the involvement of an accused, that too, by producing trustworthy and confidence inspiring evidence. The learned trial Court dealt with the matter comprehensively and through a detailed judgment awarded conviction to the appellant, but being the Court of appeal, this Court is to see, as to whether the learned trial Court fully appreciated the evidence and record on file; and as to whether the witnesses succeeded in establishing their presence on the spot. We cannot ignore that every criminal case is heinous in nature and the people involved from both the sides are the worst sufferers, waiting in return to the Courts of law to determine their fate. We are conscious of the fact that in such like cases families are ruined, especially, the one whose sole bread earners are killed. But let our emotions should not be the masters to decide the miseries of the wretched families, rather the Courts of law should apply its judicial mind to the facts and circumstances of the case, so to avoid miscarriage of justice. In case in hand, much is needed to unearth the truth and to remove the prevailing mystery, so to do justice with the deserving. Though, the learned trial Court dealt with the matter comprehensively, but we are still searching to dig out as to whether the complainant was present at the time of incident and as to whether he came forward with nothing, but the whole truth. 7. The incident occurred in a busy cattle fair, where the complainant along with his deceased brother had come to purchase household articles. The report tells that after purchasing the household articles, they were supposed to leave for their house, when the accused emerged from eastern side and started firing at the complainant as well as the deceased, where the complainant escaped unhurt, but the unfortunate deceased fell a prey. Not only the deceased received firearm injuries, but also a passerby namely Aziz-ur-Rehman. The deceased was taken to the local hospital by the complainant and the injured was shifted by the people who were present near the place of incident. The matter was reported to the local police in the City Hospital, Lakki at 13:30 hours, which was penned down by one Ghulam Saboor Khan ASI, who also prepared the injury sheets and inquest report of the deceased. After doing the needful, the dead-body was sent to the mortuary where the autopsy was conducted. It is pertinent to mention that while examining the dead-body the doctor explained the time of arrival as 01:15 P.M. and the time of examination of the deed-body as 02:00 P.M. The complainant was examined as PW-8, who stated that he along with the deceased left their village for the cattle fair to purchase household articles. He further stated that, after purchasing the same they were leaving for their house when the accused emerged and started firing at them. Though, the complainant posed himself to be the sole eye-witness and that it was he who shifted the dead-body to the hospital, but we are to see as to whether he has succeeded in convincing the Court of law, in that respect. The complainant admitted that there existed blood-feud between the parties, as some 29/30 years ago father of the appellant was killed leading to a charge against the complainant. The complainant is to tell that when he was the singularly charged accused for the murder of father of the assailants, then why the accused did not kill the complainant, that too, when he was at their mercy, and that why the deceased was targeted and killed, as the best needed target was available to them. The record tells that it was the deceased who received the firearm injuries and no injury was caused to the complainant, though the complainant charged the accused for firing at him, but the same proved ineffective. The inter se distance between accused and the complainant was so short, that had he been present and was fired at, he would not have survived, but the circumstances tell otherwise. The complainant is yet to explain that when the Investigating Officer reached to the spot, why he did not produce the purchased items. This is interesting to note that when the deceased received fatal shot and fell to the ground even then the household articles were in possession of the complainant, which were handed over to one Yousaf Jan, belonging to his village. On one hand, the conduct of the complainant was unnatural and on the other, if the said Yousaf Jan was present at the time of incident, what precluded the complainant to disclose his name to the Investigating Officer and that why his name was not included in the calendar of witnesses. The prosecution travelled with strange behaviour, despite the fact the injured was available in the hospital at the time of report, but was not asked to verify the report made by the complainant, that too, in his presence. The presence of the complainant has put us in a fix and it is important to search for circumstances that substantiate his claim. 8. The complainant during Court statement, stated that he hurriedly transported the dead-body of the deceased to the hospital, knowing the fact that the deceased breathed his last on the spot. When the complainant knew that the deceased had died, then why the dead-body was not shifted to the local Police Station situated at a distance of three furlong and that why the incident was reported in the hospital. Another intriguing aspect of the case is that the report was made to the scribe at 13:30 hours who thereafter, prepared the injury sheet and inquest report, but the doctor disclosed the time of arrival of the dead-body as 01:15 P.M. and the time of postmortem as 02:00 P.M. When the dead-body was present before the doctor at 01:15 P.M., then how the report was made at 13:30 hours and that why the doctor did not conduct the postmortem examination soon after the dead-body was produced before him. The delay caused gives an inference that all waited for arrival of the complainant, whose village is situated at a distance of one hour travel. The overall circumstances strengthen our belief that after receiving the firearm injuries the deceased was shifted by the people to the hospital, as the complainant was not available at the time of incident. This fact is further corroborated by the fact, that in his report, the complainant specified the weapon of offence as pistol, whereas in the inquest report the word has been used. Had the report been made in the mode and manner, then the scribe instead using the word "firearm" would have used the word "pistol" and the complainant would also figure in the columns of identification of both the inquest and postmortem reports. 9. The Investigating Officer after getting copy of the FIR, reached to the spot recovered blood-stained earth along with four empties of .30 bore from the place of incident. The site plan was prepared on pointation of the complainant. The Investigating Officer was examined as PW-9, who stated that on receiving copy of FIR, he reached to the place of occurrence, effected recoveries and prepared the site plan, but this witness did not make efforts to record statements of the nearby shopkeepers and even he did not mention the Datson Adda, where the complainant was supposed to go. The Investigating Officer did not inquire the whereabouts of one Yousaf Jan, who was stated by the complainant, to have witnessed the occurrence. The Investigating Officer collected four empties of .30 bore, where three out of four, matched with the recovered pistol and the one did not. Keeping in view the dimensions of the injuries and recoveries of empties from the spot the possibility cannot be excluded that it was the doing of one person. The complainant when appeared before the trial Court, stated that while present on the spot with the Investigating Officer, Ghulam Saboor Khan ASI along with police officials brought the accused and in his presence .30 bore pistol along with ammunitions were recovered from the accused by the Investigating Officer, whereas Ghulam Saboor Khan ASI, during his Court statement, stated that the appellant was arrested a little away from the Police Station and that it was he who recovered the pistol along with ammunitions from his personal possession. 10. Much was said regarding spot arrest and recovery of the weapon of…

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