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Petitioner: ADNAN RASHEED VS Respondent: GUL NAWAZ and 4 others
Court Name: Federal Shariat Court Judge(s): Mehmood Maqbool Bajwa, Ashraf Jahan Title: ADNAN RASHEED vs GUL NAWAZ and 4 others Case No.: Date of Judgment:2017-09-25 Reported As: 2018 YLR 340 Result: Appeal dismissed.
JUDGMENT
JUDGMENT MEHMOOD MAQBOOL BAJWA, J.---Respondents Nos,1 to 4 after facing trial in case FIR No,139 of 2015 initially registered under sections 302, 324 read with sections 34 of The Pakistan Penal Code, 1860 (Act No,XLV of 1860), which offences were later on substituted by an offence under Section 17(4) of The Offences against Property (Enforcement of Hudood) Ordinance, 1979, (VI of 1979), (hereinafter called "Ordinance VI of 1979") were acquitted through judgment dated 10.11.2016 handed down by the learned Sessions Judge Torghar (at Oghi). 2. Being aggrieved of the said conclusion, the appellant-Adnan Rasheed (P.W.3) (complainant of the crime report) has called in question the legality and validity of judgment by way of present appeal. 3. Facts in brief for the disposal of present appeal are that Adnan Rasheed (PW-3) son of Abdur Rasheed (deceased) got FIR bearing No,139 of 2015 (Ex.P.W.10/1) registered against unknown assailants with the accusation that on the intervening night of 29th and 30th of March, 2015, he along with his brother Faizan Rasheed (PW-4) and sister Kiran Bibi were sleeping in the corner room of his house while his father Abdur Rasheed (deceased) along with mother Pari Afza were sleeping in another room. At about 2:10 A.M. (night), two unknown persons while scaling over the boundary wall entered in the house and went to the room where his parents were sleeping, upon which her mother raised hue and cry due to which he as well as his brother, Faizan Rasheed (PW-4) woke up and came in Veranda. His mother, as per contents, also came outside the room who made offer to the unknown assailants to take away whatever they want. Meanwhile, one of the assailants made fire with 30 bore pistol aiming at his father who sustained injury on his chest resulting in his death at the spot. Faizan Rasheed, his brother (P.W.4) made an attempt to
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overpower the said accused who with an intent to commit Qatl-e-Amd of his brother made fire causing injury on his left thigh and right hand. Companions of the accused as per version present outside the house also made firing. The accused inside the house made their escape good. The complainant party could not identify the assailants due to load-shedding. Statement (Ex.P.W.1/1) of the complainant was reduced into writing by Muhammad Javed Khan, SHO (PW-1) who after getting information about the occurrence reached at the spot. The said SHO prepared injury statement of Faizan Rasheed (Ex.PW-1/2) and deceased Abdur Rasheed (Ex.PW- 1/3). He also prepared inquest report (Ex.PW-1/4), sent the injured, Faizan Rasheed (PW-3) and dead body of the deceased to the local hospital for medical treatment and post-mortem examination. The Station House Officer found a 30 bore loaded pistol lying on the path outside the house, which later on was taken into custody through recovery memo (Ex.PW-5/3) by Inspector Jehanzeb Khan (Investigating Officer) (PW-5). The Investigating Officer (PW-5) also took into possession blood through cotton from the spot by two different memos, also secured five empties of 30 bore pistol (P2) through recovery memo (Ex.PW-5/3). During the investigation he also took into custody chaddar and glove lying at the spot vide memo (Ex.PW-5/3). The said Investigating Officer also took into custody four empties of 30 bore pistol lying outside the house witnessed through memo (Ex. PW-5/3). After arrest of the respondents Nos,1 to 4, judicial confession of respondents Nos,1 and 3, i,e,, Gul Nawaz and Mubarik Zeb was recorded by Muhammad Sohail, Judicial Magistrate, Mansehra (PW-9). 4. Recovery of weapons of offence was effected from respondents Nos,2 to 4. During the course of investigation, it was concluded that the pistol lying on the path outside the house is owned by Gul Nawaz, respondent No,l. 5. After usual investigation and observing codal and legal formalities, Report under section 173 of the Code of Criminal Procedure, 1898 (Act V of 1898) (hereinafter called The Code") was submitted against respondents Nos,1 to 4 and one Zaboor, declared proclaimed offender. 6. Dr. Riaz, Principal Medical Officer (PW-2) medically examined Faizan Rasheed (PW-4) on 30.03.2015 and noted following injuries on his body:-- "1. An entry wound measuring 1 cm dia was noted of the left side thigh middle region bleeding noted. 2. Corresponding exit wound was noted on medial aspect of left thigh. 3. An entry wound in dia was noted on the right hand dorsally and corresponding wound is noted on the right hand medially. 4 Corresponding wound noted on the overlying clothing. Cause of injury was firearm injury." The said injured after providing first aid was referred to District Headquarter Hospital, Mansehra. Exhibit PW2/1 is the copy of medico-legal certificate. On the same day, the said Medical Officer conducted autopsy on the dead body of Abdur Rasheed and noted following injuries: "1. An entry wound 1 cm in dia was noted on the left side of chest 01 inch below the left nipple and slightly medially. 2. An exit wound measuring one and half cm in dia was noted on the right side chest posteriorly in the middle region. Bleeding from both wounds noted. Hole is noted on the overlying Qameez. " Copy of postmortem report is Exhibit PW-2/2. Probable time between injuries and death was instantaneous while time between death and postmortem was noted 03 to 06 hours approximately. 7. The respondent Nos, 1 to 4 when formally charged under section 17(4) of The Ordinance VI of 1979, did not plead guilty and claimed to be tried. 8. The prosecution in order to prove its case produced Muhammad Javed Khan, SHO (PW-1), Dr.
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Niaz (PW-2), Adnan Rasheed, complainant (PW-3), Faizan Rasheed (Injured) (PW-4), Jehanzeb Khan, Inspector-Investigating Officer (PW-5), Muhammad Tariq, Moharrir-Head Constable (PW-6), Dildar Constable (PW-7), .Chanzeb-Constable (PW-8), Mohammad Sohail, Judicial Magistrate, Mansehra (PW-9), Khanvez, Sub-Inspector (PW-10), Sher Mohammad (PW-11), -Mohammad Afzal (PW-12) and Dildar Constable (PW-13). The learned Special Public Prosecutor after giving up certain witnesses closed prosecution evidence. 9. The respondents Nos,1 to 4 while making statements under Section 342 of the Code denied the whole incriminating evidence and while pleading innocence alleged their false implication. The respondents neither appeared as witness nor produced any evidence in defence. 10.The learned Trial Court after hearing the arguments recorded judgment of acquittal assailed by way of present appeal. 11.The learned Counsel for the appellant while questioning the legality and validity of the judgment contended that there was sufficient and ample evidence to prove the guilt of respondents Nos,1 to 4 beyond shadow of doubt but the conclusion is result of mis-reading and non-reading of evidence. Elaborating the argument, it was contended that Gul Nawaz and Mubarik Zeb (respondents Nos,1 and 3) made judicial confession duly recorded by Mohammad Sohail, Judicial Magistrate, Mansehra (PW-9), sufficient by itself to prove the culpability of not only the respondents Nos, I and 3 but also the respondents Nos,2 and 4, i,e,, Zulfiqar alias Dora and Gul Mohammad alias Gulla. Making reference to the confessional statements of the said respondents (Ex.PW-9/3-Ex.PW- 9/6), it was contended with vehemence that the statements, which are true and voluntarily were sufficient not only to prove the guilt of the said respondents but also inculpatory evidence against respondents Nos,2 and 4 but the said aspect was totally ignored by the learned Trial Court. Continuing the arguments, it was submitted that recovery of pistol lying outside the house of the deceased as well as complainant witnessed through recovery memo and copy of license of respondent No,1, Gul Nawaz was a turning point in the investigation due to which it became possible to trace out the respondents, being assailants. It was further stated that Zulfiqar, respondent No,2 got, recovered 30 bore pistol through recovery memo (Ex.PW-5/10) while Mubarik Zeb, respondent No,3 led to the recovery of weapon of offence as is evident from (Ex.PW-5/12) and Gul Mohammad, respondent No,4 after pointation got recovered 30 bore pistol vide memo (Ex.PW- 5/19). Further contended that the pistols recovered from respondents Nos,2 to 4 and owned by respondent No,1 along with the empties secured from the spot through recovery memo (Ex.PW- 05/03) were sent for expert opinion and the reports of Forensic Science Laboratory (Ex.PW-5/27) and (Ex.PW-5/28) are in positive. Making reference to the another report of Forensic Science Laboratory (Ex.PW-5/2), it was submitted that the finger impressions on the weapons of offence owned by respondent No,1 and recovered from respondents Nos,2 to 4 were sent for comparison and as per report, the finger impressions of the respondents Nos,1 to 4 taken during the course of investigation as well as on weapons of offence were found similar and identical. Further contended that Gul Nawaz, Zulfiqar and Mubarik Zeb, respondents Nos,1 to 3 during the course of investigation pointed out place of occurrence as is evident from memo (Ex.PW-5/9). Contended that Gul Mohammad, respondent No,4 also pointed out the place of occurrence witnessed through pointation memo (Ex.PW-5/16) which provides corroboration to the case of the prosecution but the said aspect was totally ignored by the learned Trial Court. Argued that the conclusion drawn by the learned Trial Court is result of mis-reading and non-reading of, evidence. To substantiate the contentions, help was sought from the dictum laid down in "Atlas Khan v. The State" (1995 PCr.LJ 1996), "Amal Sherin and another v. The State" (PLD 2004 Supreme Court 371) and "Muslim Shah v. The State" (PLD 2005 Supreme Court 168).
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12. Controverting the arguments, the learned Counsel representing the respondents while defending the impugned judgment contended that it is a case of no evidence as the respondents. Nos,1 to 4 were not nominated in the FIR. Submitted that the deceased Abdur Rasheed was serving as Superintendent in the office of Frontier Constabulary and due to the office held by him, there was pressure upon the local Police resulting in false implication of the respondents. Submitted that implication of the respondents Nos,1 to 4 was result of malice in fact on the part of Mohammad Javed Khan, SHO (PW-1) and Jehanzeb Khan, Inspector-Investigating Officer (PW-5). To substantiate the contention, reference was made to the conclusion drawn by the learned Trial Court showing its concern over the conduct and efficiency of the said witnesses with further direction to the competent authority to initiate disciplinary proceedings against them. It was further submitted that there is no direct evidence in order to connect the respondents Nos,1 to 4 in the occurrence. Replying the arguments with reference to the evidentiary value of the judicial confession allegedly made by respondents Nos,1 and 3 and making reference to the statement of Mohammad Sohail, Judicial Magistrate (PW-09), it was contended that in view of the replies given in cross-examination by the said witness admitting that both the respondents were brought together who were made sit together on the dice and their handcuffs were not removed is sufficient to give an irresistible conclusion that the confession is sponsored and as such no implicit reliance can be placed upon it. Making reference to the statements of complainant (PW-3) as well as injured, Faizan Rasheed (PW-4), it was argued that both the witnesses are not in agreement with each other on the material aspects of the case and conscious improvements were made by them with reference to number of the assailants entered in the house of deceased. Continuing the arguments, it was submitted that the statements of both the witnesses cannot be believed, relied and acted upon as there are material contradictions in the said statements. Referring to the recovery memos through which 30 bore pistols were statedly recovered on the pointation of respondent's Nos,2 to 4, it was submitted that the said recoveries are fake and fabricated and as such no implicit reliance can be placed upon the positive reports of Forensic Science Laboratory .(Ex. PW-5/27 - Ex.PW-5/28). Questioning the evidentiary value of the another report of Forensic ScienceLaboratory (Ex . PW- 5/2), concluding that the finger impressions on the weapons of offence are of the respondents, it was contended that the said evidence was procured which even otherwise, cannot provide corroboration to the prosecution case. To substantiate the contentions, the learned Counsel representing the respondents sought help from the rule of law enunciated in "Muhammad Israr and 5 others v. The State" (1998 PCr.LJ 383) and "Shirimati Seetan v. The State" (1988 PCr.LJ 939). Relying upon the Ratio expounded in "Haji Bashir Khan v. Rehmat Gul and 3 others" (2016 PCr.LJ 568) and "Muhammad Essa v. The State" (2016 PCr.LJ 853), it was contended that findings of acquittal cannot be lightly interfered unless and until are result of misreading and non-reading of evidence. 13.The learned Law Officer adopted the arguments advanced by learned Counsel for the appellant. 14.Heard adversaries and perused the record. 15.Prior to dealing with the respective contentions of adversaries with reference to evidence adduced, it is desirable to highlight the yardstick for interference in the judgment of acquittal. Moot point was examined by the Apex Court in "Ghulam Sikandar and another v. Mamaraz Khan and others" (PLD 1985 Supreme Court 11) and it was held at Pages-18 and 19 as follow:-- "(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave
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is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions. One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence. (2)The acquitted will not carry the second presumption and will also thus loose the first, one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (14 mis-read such evidence; (c) received such evidence illegally. (3)In either case the well-known principles of reappraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason. (4)The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this. Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistibk conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shockingand ridiculous." Same rule of law was enunciated in "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298), "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 Supreme Court 53), "Captain Abdul Rahim v. Naeem Sagar and others" (2009 SCM R 288), "The State and others v. Abdul Khaliq an others" (PLD 2011 Supreme Court 554) and "Muhammad Zaman v. The State and others" (2014 SCM R 749). Case-law cited at bar by the learned Counsel for respondents also highlight the same parameters. 16.Keeping in view the above yardstick, we would like to examine' the evidence adduced by the prosecution keeping in view the arguments advanced. 17.Case of the appellant-prosecution from which the present appeal has arisen is not based on direct evidence and rests upon circumstantial evidence. In order to act upon the circumstantial evidence regarding the guilt of accused facing the trial, following principles are required to be kept in view. (i) Facts so established must be consistent with the guilt of accused. "(ii) Circumstances must be conclusive and conclusion of guilt to be drawn must or should be established. (iii)Suspicious, however, strong would not be substitute of proof. (iv)Chain of evidence must be complete in all respect leaving no reasonable ground about the innocence of the accused. (v)Evidence must have made one un-broken chain. One end must touch the crime and other neck of the accused. (See: "Sharad Birdhichand Sarda v. State of Maharashtra" (AIR 1984 Supreme Court 1622), "Imran alias Dully and another v. The State and others" (2015 SCM R 155), and "Azeem Khan and another v. Mujahid Khan and others" (2016 SCM R 274). 18.Evidence has to be scanned keeping in view the yardstick enumerated. 19.The prosecution in order to prove its case banked upon the following type of evidence.
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(1) Evidence of Adnan Rasheed, complainant (P.W.3) and Faizan Rasheed, injured (P.W.4) implicating respondents Nos,1 to 4 by way of supplementary statements. (2)judicial confession (Retracted) of respondents Nos,1 and 3. (3)Pointation of place of occurrence (without any recovery) by respondents. (4)Taking into custody 30 bore pistol from the path outside the house of deceased statedly owned by respondent No,1 having same number as mentioned in the licensed produced by said respondent. (5)Recovery of weapons of offence on the pointation of respondents Nos,2 to 4. (6)Recovery of SIMs and cells of respondents Nos,1 and 2 along with call data. (7)Positive reports of Forensic Science Laboratory (Ex. P. W .5-27 and 28) concluding that the crime empties secured from inside and outside the house of deceased and appellant were fired from the weapons used by respondents Nos,1 to 4. (8)Affirmative report of Forensic Science Laboratory (Ex.PW-5/2) suggesting the availability of finger impressions of respondents Nos,1 to 4 on thirty bore pistols used by them in the occurrence. 20. It is an admitted fact that the respondents Nos,1 to 4 were not named in the crime report. It specifically find mentioned in it that the occurrence was committed by some unknown accused as their identification was not possible in view of load-shedding. The complainant, Adnan Rasheed (PW-3) in his direct statement deposed that he implicated the respondents Nos,1 to 4 in his supplementary statement. Faizan Rasheed (PW-4) who undeniably is injured witness also highlighted the mode of implication of the respondents in the similar manner. The evidence is not required to be examined in depth in view of the well-settled proposition of law regarding the evidentiary value and binding force of supplementary statement. There is no cavil with the proposition of law that no implicit reliance can be placed upon the supplementary statement which at the most can be equated as a statement under section 161 of the Code. Reliance is placed upon "Falak Sher alias Sheru v. The State (1995 SCM R 1350) "Akhtar All and others v. The State" (2008 SCM R 6), "Noor Muhammad v. The State (2008 SCM R 1556) and "Kashif Ali v. The Judge, Anti-Terrorism, Court No, ll, Lahore and others" (PLD 2016 Supreme Court 951). 21. Admittedly, the complainant and Faizan Rasheed (P.W.3, P.W.4) had no personal information regarding the involvement of respondents Nos,1 to 4 as a culprit. Record reveals that respondent No,1 was implicated in view of the evidence collected during the course of investigation regarding stated similarity of number of pistol taken into custody lying outside the house of deceased along with the license in the name of respondent No, 1 . Nothing is available on record even to suggest the culpability of the respondents Nos,2 to 4 at the time of investigation prompting the Investigating Officer (PW05) to associate them in the investigation and stamping them as an accused. 22.Though it was contended that Faizan Rasheed (PW-4) is the injured eye-witness to which argument no exception can be taken but the argument would not advance the plea of appellant because the injuries sustained by him though prove his presence at the spot but cannot be taken as affirmative proof of the credibility of said witness which has to be tested independently. We are fortified in our view by law laid down in "Nazir Ahmad v. Muhammad Iqbal and others" (2011 SCM R .527). 23.Even otherwise, the statements of complainant (PW-3) and injured witness (PW-4) on certain aspects are contradictory and as such no implicit reliance can be placed upon it. We have noted that Adnan Rasheed (PW-3) in earlier part of his examination-in-chief stated that two persons scaled over the wall while in the middle of his statement he deposed that companions of the accused who were outside the room also made firing. The injured (PW-4) at the very outset stated in his statement that some persons were found standing outside the room of his father while two persons were standing in front of his room. 24. There is glaring contradiction in the statements of complainant and injured with reference to
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number of accused as referred. Without going into further discussion, suffice it to say that it was impossible for both the witnesses to know the number of accused in load-shedding. If it was possible, why the witnesses remained unable to indentify respondent No,1. who is relative of the witnesses as admitted by injured (P.W.4) though relationship was questioned by complainant (P.W.3). The respondent No,1 is also village fellow of complainant party which is admitted fact. In the circumstances, we are unable to endorse the arguments advanced by the learned Counsel for the appellant as well as learned Law Officer with reference to the credibility of the witnesses. 25. Case of the prosecution also rest upon the judicial confession statedly made by respondents Nos,1 and 3 recorded by Muhammad Sohail, Judicial Magistrate (PW-09). 26. In order to act upon the judicial confession, three-fold proof is required. (1) That in fact it was made. (2) That it was voluntarily, and (3) it was truly made. 27.Perusal of the confessional statements of Gul Nawaz, respondent No,! and Mubarik Zeb, Respondent No,3 (Ex.PW-9/3 and Ex.PW-9/6) clearly demonstrates that the mode and manner of the occurrence reflected in the confessional statements cannot be reconciled. Perusal of the confessional statement of the Respondent No,1, i,e,, Gul Nawaz reveals that he while pointing out the house of deceased left the said place and went to his house and after hearing the report of firing he came to the spot. The fact was not endorsed by Mubarik Zeb in his confessional statement who first of all maintained that he was persuaded by Zulfiqar, (respondent No,2) to commit dacoity in the house of deceased but he did not submit before the said respondent and left for his house but again at about 10:00 P.M. on telephonic call of the said respondent, he again came, joined the rest of the respondents and later on occurrence was committed. The said respondent though did not disclose the presence of respondent No,1 at the spot at the time of occurrence but he also did not specifically mention that the respondent No,1 left the place after pointing out the residence of the deceased. According to the statement of respondent No,1, Respondent No,2 on query made by the Respondent No,1 informed him that he made firing. Mubarik Zeb in his stated confession though stated that firing was made by Zulfiqar, Respondent No,2 but according to him he made only one fire and it was Zaboor (proclaimed offender) who also made firing. Admittedly in the occurrence more than one shots were fired by the assailants as is evident from prosecution case reflected in the ocular account as well as medical evidence and as such there is no option with us but to reach a conclusion that the confession of both the accused does not reflect the mode and manner…
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