Full Judgment Text & Judicial Ruling

2022 Y L R 1793 [Peshawar (Bannu Bench)] Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ ALI NAWAZ---Appellant Versus The STATE through Advocate General Bannu Bench and another---Respondents Criminal Appeal No. 31-B and Murder Reference No. 3-B of 2020, decided on 9th June, 2021. (a) Penal Code (XLV of 1860)--- ----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of complainant and eye-witness---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Motive was stated to be an early altercation between the parties in football ground---If it was admitted what the complainant stated to be correct, then the question arose as to what prompted the accused to fire at the deceased and not the complainant, while fully armed and that why the accused ran the risk to transport the accused to the place situated in front of his house---Inter-se distance between the assailants and the complainant party had been shown as less than seven (7) feet, but neither the complainant nor the eye-witness made any efforts to rescue their brother from the firing made by the accused and why the accused did not kill the complainant and the eye-witness, as it was in the statement of the complainant that a few days back an altercation took place between them and the accused---Conduct displayed by the complainant was unnatural on one hand, whereas on the other, he was struggling hard to establish his presence on the spot---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of complainant at the spot was doubted---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Record was silent as to what the accused wanted to achieve by bringing the deceased just in front of their house and to kill him---Had that been the motive, the accused would have easily achieved their target in front of the house of the complainant instead of shifting the deceased to the spot---Both, the complainant and the eye-witness, were labourers and working in the brick kiln and it was on record that the distance between the place of occurrence and place of their business was not more than two (2) kilometres---Complainant stated that after receiving firearm injuries, the deceased fell to the ground and survived for five minutes and the accused decamped from the spot---Though it had been stated that the cot was arranged from the nearby house but the complainant categorically stated that neither he nor the eye-witness helped in shifting the dead body of the deceased from the ground to the cot---Such conduct did not appeal to a prudent mind, as in that eventuality the real brothers would have attracted to the dead body soon after the incident and thereafter---Said part of the statement of the complainant gave inference that he was not present on the spot at the time of incident and soon thereafter---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of forty five minutes in lodging the FIR---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Record showed that the dead body was shifted to the local police station where the matter was reported by the complainant and verified by the eye-witness---Injury sheet and the inquest report were prepared after registration of the case, but surprisingly, the inquest report did not bear the FIR number and the sections of law---Such fact invited attention that when the report was made at the police station in the shape of first information report, then why the inquest report was lacking the FIR number and the relevant sections of law---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses with the dead body was doubtful---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Witnesses, were yet to explain as to who, out of the two i.e. complainant and eye-witness accompanied the dead body from the police station to the hospital and, as to who identified the dead body before scribe at the time the report was made and before the doctor at the time of post-mortem examination---Complainant when appeared before the Trial Court stated that he in the company of his brother after making the report came to their house and from their house they went to the spot for spot pointation on arrival of the Investigating Officer---Complainant further stated that initially the eye-witness was present at the time of spot pointation, and thereafter he went to the hospital after the dead body---Said portion of the statement could not be believed, as once the witnesses did not opt to accompany the dead body from the police station to the hospital then what urgency was there for the eye-witness to go to the hospital, that too, at a belated stage---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt---Contradictions in the statements of eye-witnesses--- Scope--- Accused was charged for committing murder of the brother of the complainant by firing---If the statement of complainant was taken to be correct regarding the presence of the eye-witness at the time of spot pointation, then how his name found mentioned in the column of identification at the time of post-mortem examination---Statement of both the witnesses when read in juxtaposition, the two contradicted each other to a greater extent, as the complainant stated that they both pointed out the spot to the Investigating Officer and that the recoveries were effected from the spot in their presence---Eye-witness when appeared before the Trial Court, he categorically stated that he was not present with the Investigating Officer and the complainant at the time of spot pointation---Complainant admitted his subsequent arrival to the spot---Overall impact of the statements of the witnesses gave an impression that the witnesses, more particularly, the eye-witness was not present on the spot---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Preliminary investigation--- Scope--- Accused was charged for committing murder of the brother of the complainant by firing---Presence of eye-witness was doubted as instead of absence at the time of post-mortem examination, the Medical Officer mentioned his name in the column of identification---Said aspect of the case led that the post-mortem was conducted earlier to the report made, and so the inquest report was prepared---Circumstances suggested that preliminary investigation had been made in the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. Javaid Akbar v. Muhammad Amjad and Jameel alias Jeela and another 2016 SCMR 1241 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Motive was not proved--- Scope--- Accused was charged for committing murder of the brother of the complainant by firing---Investigating Officer though investigated the matter from different angles, he did not take pains to collect any evidence in respect of the alleged motive---Investigating Officer visited the spot but he did not record the statements of any independent witness regarding the altercation between the parties, few days earlier to the incident---Complainant while reporting the matter stated that the altercation took place in the football ground, but he himself could not produce any witness who was present at the time of altercation in the ground---Such eventualities showed that the motive was an afterthought with attempt to connect the accused with the commission of offence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. Hakim Ali v. The State 1971 SCMR 432 and Amin Ullah v. The State PLD 1976 SC 629 rel. (h) Criminal trial--- ----Motive---Scope---Absence or weakness of motive could not be taken into consideration as a sole factor to discredit the prosecution and to disbelieve the charge, but that once a motive was alleged then the prosecution was duty bound to establish the same---Failing which no one else but the prosecution would suffer. Ahmad Farooq Khattak for Appellant. Saif-ur-Rahman Khattak, A.A.G. for the State. Salah-ud-Din Khan Marwat for Respondents. Date of hearing: 9th June, 2021. JUDGMENT

SAHIBZADA ASADULLAH, J.---Through the instant criminal appeal, the appellant (Ali Nawaz) has called into question the judgment dated 20.02.2020, rendered by learned Additional Sessions Judge-III/MCTC, Lakki Marwat, in case FIR No.266 dated 28.5.2017, under sections 302/34, P.P.C., Police Station Ghazni Khel (District Lakki Marwat), whereby the appellant has been convicted under Section 302(b), P.P.C. and awarded death sentence for committing Qatl-i-Amd of deceased Farmanullah, burdened with payment of Rs.10,00,000/-(rupees ten lac) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased, recoverable as arrears of land revenue or owing to want of property or in default thereof, to undergo six months simple imprisonment. The appellant was directed to be hanged by the neck till confirmation of his death by the Medical Officer in presence of Judicial Magistrate on duty in Jail, however, subject to confirmation by this Court. 2. The prosecution story, as disclosed in the first information report (FIR), in brief, is that on 28.5.2017 at 12:00 hours, complainant Qismatullah (PW-6) brought the dead body of his brother Farmanullah, in a private Datsun to the Police Station Ghazni Khel where he reported the matter to the effect that on the same day, he and his brother Farmanullah were sitting under the "keekar"/acacia tree outside their house, meanwhile, Ali Nawaz and Haq Nawaz sons of Muhammad Nawaz, came there on a motorbike driven by accused Haq Nawaz, whereas accused Ali Nawaz was sitting behind him, duly armed with repeater .12 bore shotgun; both the accused came down from the motorcycle and accused Ali Nawaz aimed his repeater upon him (complainant) and forcibly took his brother Farmanullah and fled away on said motorcycle; that he along with his another brother namely Irfanullah also went behind them on a motorcycle and when both the accused reached in the vacant field near their house, they deboarded Farmanullah from their motorcycle and at about 11:15 a.m., accused Ali Nawaz made firing upon Farmanullah with his repeater, resultantly, his brother Farmanullah got hit and fell down to the ground. It is further in the report that complainant party could do nothing being empty handed and accused decamped from the spot after commission of the occurrence. When they attended their brother, he had succumbed to his injuries. Motive for the offence was stated to be exchange of hot words in football game few days before the occurrence, hence, the instant FIR. Nizam Khan ASI (PW-4) registered the case vide FIR Ex.PA. PW-4 also prepared injury sheet and inquest report of the deceased and sent the dead body to the doctor for postmortem examination under the escort of constable Waheed Khan No.62 (PW-1). 3. After completion of investigation, prosecution submitted complete challan under Section 512, Cr.P.C. against both the accused, however, later on accused Ali Nawaz was arrested and his supplementary challan was submitted, while the other co-accused remained fugitive from law. Accused Ali Nawaz being in custody was produced before the Court from Jail; and after complying with the provision of section 265-C Cr.P.C, he was charge sheeted on 12.12.2017, to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case, produced and examined as many as nine (9) witnesses, whereafter, the accused was examined under Section 342, Cr.P.C, wherein he professed innocence and false implication, however, he did not wish to be examined on oath as provided under section 340(2), Cr.P.C, nor opted to produce evidence in his defence. After hearing the arguments from both the sides, the learned trial. Court vide impugned judgment dated 20.02.2020, convicted the accused under Section 302(b), P.P.C. and sentenced him, as mentioned above, hence, this appeal. 4. The learned counsel for the parties along with Additional Advocate-General representing the State were heard at length and with their valuable assistance, the record was gone through. 5. The unfortunate incident claimed the life of deceased Farmanullah and the matter was reported by the complainant at Police Station Ghazni Khel, bringing a charge against the appellant and another. The motive was stated to be an early altercation between the parties in football ground. 6. The appellant after his arrest faced trial and it was on conclusion of the trial that, he was awarded death sentence. No doubt, the trial Court took pains to appreciate the evidence on file, but keeping in view the gravity of the awarded sentence, we deem it appropriate to re-appraise the collected evidence on file. Though the learned trial Court went in detailed discussion of the evidence collected, the recoveries effected from the spot, the manner in which the incident occurred and the seat of injuries on the body of the deceased, yet this Court being the Court of appeal is under heavy obligation to apply its judicial mind to the collected evidence so to avoid miscarriage of justice. This Court is to see as to whether the incident occurred in the mode, manner and at the stated time. We are to assess the presence of the witnesses on the spot, their reaction to the events and their subsequent conduct. There is no denial to the fact that in criminal cases, behaviour and conduct of the witnesses and that of the accused play a vital role, which cannot be lightly ignored. 7. The incident occurred in front of the house of the deceased and complainant, when they were sitting under the shade of acacia tree. It is alleged that the appellant and absconding co-accused arrived while riding their motorcycle, the appellant was armed with a repeater 12-bore occupying the pillion, whereas the absconding co-accused was driving. The report contains that the complainant was stopped to move as the gun was aimed at him, the deceased was made to sit on motorcycle and they drove away. It was allegedly on arrival of eye-witness Irfan with his motorcycle from the house that they chased the accused. The report further tells that when they reached to the football ground, situated in front of the house of the accused, the deceased was deboarded and fired at. We cannot ignore the inter se relation of the complainant, the deceased and the emotional attachment of an elder brother with the youngest, who is hardly fifteen. The complainant is to tell that why he did not resist the use of force by the appellant to take the deceased, that too, on a motorcycle and that, despite ample opportunities, no efforts were made to overpower the appellant, especially, when the appellant was holding the deceased, while riding the motorcycle. The complainant appeared before the trial Court and was examined as PW-6, who stated that soon after the deceased was taken on motorcycle, PW Irfan brought out his motorcycle from the house, he narrated the story to him and they started to chase. The conduct of the complainant is unnatural, had he been present, instead of narrating the story to his brother, he would follow in haste to rescue his brother. The complainant stated that it was few days earlier that an altercation took place between them, this portion of his statement puts us on guard that, why the youngest was selected and that why, being the eldest, he was afforded an opportunity to live. 8. If we admit what the complainant stated to be correct, then what prompted the appellant to fire at the deceased and not the complainant, while fully armed and that why the appellant ran the risk to transport the accused to the place situated in front of his house. What a coincidence this was that the deceased was fired at, when the complainant and eye-witness reached to the spot. 9. This is surprising that the inter se distance between the assailants and the complainant party has been shown as less than seven (7) feet, but neither the complainant nor the eye-witness made any efforts to rescue their brother from the firing made by the appellant. We are yet to know that why the appellant did not kill the complainant and the eye-witness, as it was in the statement of the complainant that a few days back an altercation took place between them and the accused. The conduct displayed by the complainant is unnatural on one hand, whereas on the other, he is struggling hard to establish his presence on the spot. We are eager to know that what the appellant wanted to achieve by bringing the deceased just in front of their house and to kill him. Had this been the motive, the accused would have easily achieved their target in front of the house of the complainant instead of shifting the deceased to the spot. 10. There is no denial to the fact that both, the complainant and the eye-witness were laborers and working in the brick kiln of one Karim Khan and this is on record that the distance between the place of occurrence and place of their business is not more than two (2) kilometers. The complainant, who was examined as PW-6, stated that after receiving firearm injuries, the deceased fell to the ground and survived for five minutes; and the accused decamped from the spot. Though it has been stated that the cot was arranged from the nearby house but the complainant categorically stated that neither he nor the eye-witness helped in shifting the dead body of the deceased from the ground to the cot, which conduct does not appeal to a prudent mind, as in that eventuality the real brothers would have attracted to the dead body soon after the incident and thereafter. This part of the statement of the complainant gives inference that he was not present on the spot at the time of incident and soon thereafter. 11. The dead body was shifted to the local police station where the matter was reported by the complainant and verified by the eye-witness. The injury sheet and the inquest report were prepared after registration of the case, but surprisingly, the inquest report does not bear the FIR number and the sections of law. It invites our attention that when the report was made at the police station in the shape of first information report, then why the inquest report is lacking the FIR number and the relevant sections of law, it cannot be interpreted in any other way, but that the matter was not reported in the mode and manner. Another important aspect of the case, which puts this Court on guard, is the manner in which the dead body of the deceased after making the report was shifted to the hospital for postmortem examination. There is no denial to the fact that both, the complainant and eye-witness are real brothers of the deceased but for no valid reasons they did not accompany the dead body of the deceased to the hospital. The witnesses were examined on this particular aspect of the case, where they explained that soon after making the report they left the police station for their house with the only purpose to associate the Investigating Officer during spot proceedings. The Investigating Officer was examined as PW-8, who stated that after registration of the case, copy of the FIR was handed over to him for the purpose of investigation, and while leaving the police station, he did not notice the complainant and eye-witness with the dead body. This portion of the statement of the Investigating Officer indicates that by the time he was leaving the police station, the dead body was lying there and if we take what the Investigating Officer stated to be correct, then in that eventuality, the complainant and the eye-witness must have been present with the dead body. This explanation by the Investigating Officer further overshadows the presence of the witnesses at the time the dead body was brought to the police station. 12. The witnesses are yet to explain that who, out of the two i.e. complainant and eye-witness accompanied the dead body from the police station to the hospital and, as to who identified the dead body before scribe at the time the report was made and before the doctor at the time of postmortem examination. The complainant when appeared before the trial Court stated that he in the company of his brother i.e. PW Irfan after making the report came to their house and from their house they went to the spot for spot pointation on arrival of the Investigating Officer. He further stated that initially the eye-witness was present at the time of spot pointation, and thereafter he went to the hospital after the dead body. This portion of the statement is hard to be believed, as once the witnesses did not opt to accompany the dead body from the police station to the hospital then what urgency was there for the eye-witness to go to the hospital, that too, at a belated stage. Another intriguing aspect of the case is that if the statement of complainant is taken to be correct regarding the presence of the eye-witness at the time of spot pointation, then how his name finds mention in the column of identification at the time of postmortem examination. When the statement of both the witnesses are read in juxtaposition, the two contradicted each other to a greater extent, as the complainant stated that they both pointed out the spot to the Investigating Officer and that the recoveries were effected from the spot in their presence, but the eye-witness when appeared before the trial Court, he categorically stated that he was not present with the Investigating Officer and the complainant at the time of spot pointation. He admits his subsequent arrival to the spot. The overall impact of the statements of the witnesses gives an impression, that the witnesses, more particularly, the eye-witness Irfan was not present on the spot. The presence of the witnesses is further doubted from the fact that instead of absence at the time of postmortem examination, the doctor mentioned his name in the column of identification, this aspect of the case leads this Court nowhere but that the post-mortem examination was conducted earlier to the report made; and so the inquest report was prepared and, we cannot refrain ourselves from holding that preliminary investigation was made in the case. In case titled "Javaid Akbar v. Muhammad Amjad and Jameel alias Jeela and another" (2016 SCMR 1241), it was held that:- Both these eye-witnesses were closely related to the complainant party and have given reasons of their presence of having visited the father who was admitted in Civil Hospital, Okara, but no documentary proof of admission of father and discharge from the Hospital was produced. The appellate Court also seriously doubted the presence of eye-witnesses at the spot for the reason that while Shakir Akbar was dead and Naveed Akhtar was in injured condition, none of the PWs had cared to carry Naveed Akhtar, injured, to the Hospital rather the complainant/PW-8 proceeded to Police Station for registration of FIR. Even the Driver of private car, who was a witness, was not produced either during investigation or trial to support the prosecution version so much so that his name was also not disclosed. 13. The prevailing circumstances put this Court on guard regarding presence of the witnesses on the spot at the time of report and even the atmosphere created compels us to…

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