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Petitioner: THE STATE VS Respondent: FARID ALIAS KALA
1988 P C r
1988 P C r. L J 1529
[Peshawar]
Before Abdul Karim Khan Kundi and Nazir Ahmad Bhatti, JJ
THE STATE--Appellant
versus
FARID alias KALA and another--Respondents
Criminal Appeal No. 11 of 1979, decided on 29th February, 1988.
(a) Penal Code (XLV of 1860)--
---Ss. 302, 307 & 34--Criminal Procedure Code (V of 1898), S.417- Appeal against acquittal--Trial Court while acquitting accused had not applied his mind to factual and legal aspects of case nor discussed merits and demerits in evidence--Venue of occurrence stood established from recoveries of blood-stained earth, pellets, bullets and empties and other evidence on record--Eye-witnesses had seen accused firing at deceased from a closed range and when an eye-witness raised noise she was also fired at and hit--Eye-witnesses stated that she knew accused beforehand which claim was not disputed--Evidence of eye-witnesses corroborated by motive and abscondence of accused- First information report was lodged promptly--Prosecution witnesses: neither related to deceased nor inimically disposed towards accused- Ocular evidence furnished by other prosecution witnesses found confidence inspiring and receiving due corroboration from medical evidence--Recoveries suggesting that accused were, armed with different weapons of offence by which deceased were put to death- Counter-version furnished in first information report of cross-case did not mention murder of deceased and fire-arm injuries to eye-witness--Cross-case story placed in juxtaposition not appearing truthful and reliable and occurrence appearing, to have taken place in a manner stated in case in hand--Unexplained abscondence of accused working as a pointer to' guilt of accused,. As they were co-villagers, closely related to each other, sharing' enmity against deceased--Held, cases against accused stood proved beyond reasonable doubt--Accused convicted under Ss.302, 307 & 34, Penal Code, for double murder of deceased and injury to female eye-witness.
(b) Penal Code (XLV of 1860)--
---Ss. 302, 307 & 34--Sentence--Accused were twice acquitted by Trial Court and were given expectation of life since long--On appeal against acquittal, High Court convicted accused under Ss.302, 307 & 34 Penal Code, but instead of awarding normal sentence of death awarded sentence of imprisonment for life.--[Sentence].
(c) Criminal Procedure Code (V of 1898)--
---S.417--Penal Code (XLV of 1860), Ss.302, 307 & 34--Appeal against acquittal--State appeals against acquittal under S.417 of Code of Criminal Procedure, 1898, held, were not to be taken lightly--Such appeals should be heard on merits both on factual and legal planes and if on re-examination of evidence it was found that order of acquittal was based on fanciful, speculative and conjectural reasoning, Court of appeal should appraise evidence on record in order to draw its own conclusions therefrom.
P L D 1969 SC 398 rel:
(d) Penal Code (XLV of 1860)--
---Ss. 302, 307 & 34--Appreciation of evidence--Mere close relationship of witness with deceased, held, would not render him an interested witness to falsely implicate accused in incident.--[Witness].
Khawaja Nazir Ahmed, A.A.-G, for the State.
Zaffar Mehmood for Respondents.
Dates of hearing 28th and 29th February, 1988.
JUDGMENT
ABDUL KARIM KHAN KUNDI, J.--Criminal Appeal Nos. 11 of 1979 and 191 of 1980 arise in the background of facts that in an incident of firing in the village mosque of Akhoon Bandi, Police Station Haripur happened at about sunrise time on 7-6-1975 one Kala son of Faqira and another Ayub son of Malli were murdered while Mst. Parveen, Mohammad Riaz, Mst. Nusrat and Mashal sustained. fire-arm injuries. Karim Dad charged Mashal, Farid and Sabir accused along Khoidad (absconder) for the murder of Kala and Ayub deceased vide F.I.R. 302, Police Station Haripur, registered the same day at 8-30 hours while Mashal accused charged Gohar Rehman, Wali Dad, Kala, Yousaf, Mohammad Zaman,.Shala, Miskin, Niaz, Abdul Jabbar and Sardar for roiting and murderous assault on him by effective firing vide F.I.R. 303 Police Station Haripur, registered at 9-00 hours. Three accused of F.I.R. 302 namely, Farid and Sabir respondents and Khoidad (absconder) had disappeared outer the occurrence while Mashal-injured accused was arrested. Farid and Sabir accused had surrendered their, arrest after about 11 months of the occurrence on 3-5-1976 by applying to the Sessions Judge for bail before arrest. Accordingly the trial of the three accused ensued which resulted in their acquittal by a judgment and order, dated 10-8-1976 which was appealed against by State and on acceptance of the appeal, a Division Bench of the High Court set aside the judgment and order of acquittal of the trial Court and sent back the ease for further enquiry and decision thereafter under section 423(1)(a) of the Code of Criminal Procedure, 1898.' After the above order of remand, dated 23-1-1978 Mashal accused absconded while Farid and Sabir accused-respondents faced a trial and -after further enquiry the learned Additional Sessions Judge acquitted them again by his judgment and order, dated 16-7-1978 where-against the State has filed Criminal Appeal No. 11 of 1979. After the acquittal of his co-accused Mashal accused was also arrested on 16-11-1978 and after further enquiry he too was acquitted by the trial Court vide its judgment, dated 13-1-1980 whereagainst the State filed Criminal Appeal No. 191 of 1980. Since the evidence in both the cases is the same and the accused-respondents are also represented by the same counsel, we, therefore, propose to dispose of the two appeals by a single judgment.
2. Herein per ocular evidence one comprising, of the statements of Karim Dad and Mohammed. Zaman the incident was narrated that on the day of occurrence at about 5 a.m. they were present washing their hands and faces in front of the bath rooms in the village mosque when in the meantime Mashal accused and Khoidad (absconder) armed with rifles and Farid and Sabir accused armed with shot guns entered the mosque. Mashal accused fired at Kala deceased reading Qur'an at the time in the Verandah of the mosque from, near the window who was hit and 'ran towards the courtyard when Khoidad (absconder) fired at him, as a result he was hit and fell down in the Verandah. Farid and Sabir accused fired at Ayub deceased sitting on a platform .near the first Verandah who was also hit and fell to the ground near Kala deceased. Afterwards the accused fired many shots in different directions when at the time the P.Ws. had taken shelter in the bath rooms. Accused; had later on decamped from the spot. Afterwards the P.Ws. had gone near the deceased and found them dead. Thereafter they proceeded to -police station at a distance of 10 miles where Karim Dad lodged the report at 8-30 hours. The two P.Ws. did not mention the fire-arm injuries caused to Mst. Parveen, Mst. Nusrat and Mohammad Riaz and also Mashal accused during the course of incident. Further ocular evidence furnished by Mst. Parveen daughter of Karim Dad (P.W.9) narrated the incident that she had gone early in the morning to fetch water in a pitcher from the water tank situate at the side of the main gate of the village mosque. She has seen the three accused along Khoidad, absconder), whom she was knowing before-hand, entering the mosque armed with rifles. She heard the report of fire shot and on seeing to that direction she saw Mashal and Khoidad` (absconder) firing at Kala deceased and. Sabir and Farid' accused firing at Ayub deceased. She raised alarm at which Sabir and Farid accused came out of the mosque and fired at her as a result she was hit. She went to her father's house. She also stated that she had seen her father Karim Dad in the mosque at the time of occurrence.
3. After the registration of the cases Akhtar Ali Khan S.H.O. (P.W.12) had proceeded to the spot, reaching there at 10-45 hours. He found the dead bodies lying in the mosque of which he prepared the injury sheets and inquest reports and despatched the same to mortuary for autopsy under escort. He inspected the spot and prepared the site plan with the help and assistance of Karim Dad and Muhammad Zaman P.Ws. He took into possession blood from the places of the dead bodies with the, help of cotton wool from inside the mosque and sealed the same into separate parcels. He recovered one empty of 7 MM, smelling fresh discharge from inner Verandah of the mosque. He recovered 7 card boards, 9 pellets, a piece of bullet, one pellet, one pellet again, one more pellet, one other pellet, one pellet once again, three pellets; again one pellet, a piece of bullet, 7 empties of .12 bore and one empty of 7 MM, both smelling .fresh discharge and further 5 empties of 7 MM and 3 empties of .12 bore, again both smelling fresh discharge from the spot at different places as indicated in the site plan. He had recovered a butt of rifle and a clearing rod during the course of house search of Farid accused. He had also taken into possession the blood-stained clothes of the deceased along sealed phials containing pellets, extracted from the dead bodies and had also taken into possession the, blood-stained clothes of the injured P.Ws. He has also prepared the site plan in the cross-case, copy placed on file along copy of the F.I.R.
4. Dr. Sardar Saeed (P.W.2) had conducted the autopsy on the dead body of Kala Khan deceased, aged about 30 years on 7-6-1976 at 3-30 p.m. and found on external examination:-
(1) Fire-arm entrance wound middle of back on the vertebral column at the level of the lower end of scapula 1" x 1" going deep.
(2) Fire-arm entrance wound 2" to the left of wound No.l, " x ".
(3) Fire-arm entrance wound below the left ribs 3" above the iliac crest 1 " x 1 " going deep, charring present.
(4) Three exit wounds 2" above the right iliac crest on the back each " x " at a distance of " from each other.
(5) Exit wounds on the abdomen one inch above the umbilicus " x ".
(6) Exit wound on front of abdomen i" below the middle of right ribs " x ".
On internal examination he found 6th and 7th left ribs at the back fractured, left pleaurae injured and left lung also injured at several places. Walls of abdomen, peritoneum and stomach were found injured. Small intestines and large intestines, liver and spleen were also found injured and vertebra fractured. The injuries were reportedly caused by fire-arm and death caused as a result of shock and haemorrhage. All the injuries collectively and injuries Nos. 1 and 3 individually were reported sufficient to cause death of the deceased in the ordinary course of nature. The probable time between injuries and death was stated instantaneous and time between death and post-mortem examination 10 to 11 hours. He had extracted two large pellets from under the skin near wound No.4, one large pellet deep down near wound No.2 and one large pellet from clothes which were sent along blood-stained clothes to the I.O.
The same doctor performed autopsy on the dead body of Ayub Khan, aged about 70 years at 4 p.m. the same day and on external examination he found:-
(1) A large gaping fire-arm wound (entrance wound) on the left side of face one inch to the left of the left eye going downwards in the neck cutting the ear, 4" x 2 ".
(2) A number of pellet wounds on the left cheek at a distance of " from each other going deep (entrance wound).
(3) Two fire-arm entrance wounds on the left upper arm 2" below the shoulder joint in front, each 1" x 1" going deep at a distance of " from each other.
(4) Large lacerated wound on left thigh starting from anterior superior iliac spine going to the side and in front 7" x 6" injuring all the muscles of the thigh and fracturing the thigh bone at several places.
On internal examination he found 2nd, 3rd and 4th left ribs fractured in the axillary line and 2nd and 3rd right ribs fractured in front. Pleaurae, lungs, pericardium and blood vessels entering heart were found injured. He further found left side of face bones both upper and lower jaws fractured, left thigh fractured and also left and right ribs fractured. The doctor stated that injuries Nos. 1, 2 and 3 were caused by fire-arm and injury No.4 by blunt means. He reported the probable time between injuries and death instantaneous and that between death and post-mortem examination 11 to 12 hours. He had recovered three large pellets from the upper portion of, front chest which he alongwith blood-stained clothes of-the deceased, sent to the I.O.
The same doctor had examined Mohammad Riaz son of Azizur Rehman, aged about 14/15 years on 10-6-1975 and found three fire-arm injuries in the region of his right knee caused within a duration of 3 days.
3. Lady Dr. Mrs. Naseer Ahmed (P.W.3) had examined Mst. Nusrat daughter of Jumma, aged about 12 years at 11-15 a.m. and found two fire-arm entrance wounds in the region of left upper arm going deep caused within a duration of about 6 hours.
She had examined Mst. Parveen wife of Miskin aged about 30/21 years on 7-6-1975 at 2-45 p.m. and found a fire-arm entrance wound on upper portion of right labia 1" x 1" going deep caused within a duration of 9 to 10 hours. She found a corresponding cut in the Shalwar. There was further found a pellet on X-ray at the level of right ischium bone.
The same- lady doctor had examined the injuries of Mashal Khan accused on 7-6-1975 at 11 a.m. and found the following:-
(1) Fire-arm entrance wound left going on the middle 3" x 2" going deep, another small fire-arm entrance wound " below injury No.l, x .
(2) Six exit wounds outer and upper portion of left thigh at a distance of " from each other, " x ". Advised X-Ray left thigh.
She had removed two cardboard pieces weighing 30 grams from the clothes of Mashal Khan while one large pellet was removed from under the skin of outer and upper portion of left thigh. She had also found corresponding cuts in the shirt with charring present. On X-Ray she found fracture and also metallic pieces in the femur region of hisbody. She stated that the injuries were grievous but not dangerous to life. She also acknowledged the possibility that the pellet injury on Mashal accused could also be Self-inflicted.
6. About motive there was led evidence that one Allah Dad brother of Kala deceased was murdered for which Yousaf brother-in-law of Sabir accused-respondent and one Waris alongwith Safdar and Akram were charged who were 'convicted and sentenced to imprisonment. The said instance was duly admitted by the accused as correct. There was led further evidence that Safdar after his release from jail was murdered for which Khaliq Dad, Kala, Taj Muhammad and Khan Afsar were charged and were acquitted which was also admitted as correct. There was led an evidence that the accused were suspecting Kala and Ayub deceased as actual culprits in the murder of Safdar which was, however, denied.
7. Sabir and Farid accused-respondents professed innocence at the trial and explained their abscondence spreading over a period of 11 months as they had gone away to-earn their livelihood and that As soon they learnt of the charge they voluntarily surrendered their arrest. Mashal accused-respondent admitted to have registered a case of murderous assault on him by firing inside the mosque but alleged that the police had not faithfully recorded his report. In his further statement he stated that as usual on the morning he went to the mosque to say his prayers and that it was his habit to take morning bath in summer in the mosque which he did and as soon he came out of the bath room of the mosque to make ablution in which he was busy that he was fired at and injured which matter he had reported to the police. Mashal accused explained his abscondence after the remand of the case by the High Court till his re-arrest by the local police after a period of 10 months stating that he had never absconded and that there was not an iota of evidence against him in this respect.
8. The learned Additional Sessions Judge condemned the prosecution for not mentioning the injuries sustained by Mst. Parveen Mst. Nusrat and Riaz Ahmed in the F.I.R. and also in their statements by the informer and Mohammad Zaman P.Ws. at the trial. The said two witnesses were further declared as not present at the scene of occurrence and their contention of going to mosque for washing hands and faces was not accepted. In the context reference was made to the statement of Mst. Parveen P.W. who had stated to have seen her father in the mosque having gone there for offering prayer but had not seen Mohammad Zaman P.W. while the P.Ws. had not vice versa seen Mst. Parveen P.W. sustaining injuries during the course of incident. Mst. Parveen had further stated to have gone to the mosque to fetch water without a veil since it was dark at the time. This part of the statement was taken for as the occurrence has not taken place at 5 a.m. in the morning as alleged by the prosecution. The non-production of the Imam and injured boy Riaz, the latter allegedly receiving religious education along other children from the Imam at the time of occurrence and further since the mosque was surrounded by houses and as such the non-production of any independent witness from the neighbourhood were accumulatively considered adverse factors likely to render the prosecution case doubtful. The non-explanation by the P.Ws. of injury No.4 on the body of Ayub deceased in a large lacerated wound on left thigh in a size of 7" x 6" injuring all the muscles and fracturing the thigh bone at several places caused by blunt weapon was acknowledged sufficient to belie the prosecution evidence as that the occurrence might not have taken place in the manner as stated at the trial. The abscondence of the accused was on one hand considered pointer towards their guilt and a corroborating circumstance but since herein the other evidence was weak, hence the evidence of abscondence was not utilized in corroboration thereof.
9. At the outset we were made cautious that all the three accused-respondents were once acquitted by a judgment dated 10-8-1976 which was reversed in appeal for further enquiry on account of non-production of the copies of the F.I.R. and site plan of the cross-case. Subsequently Farid and Sabir accused-respondents were again acquitted by a judgment, dated 16-7-1978 and later on Mashal accused was also acquitted by a judgment dated 13-1-1980 and that in the circumstances the accused who had undergone twice a trial each and had earned double acquittal to their credit need not be held guilty on the charges simply because the evidence on record is also susceptible to different conclusions on independent appreciation by this Court. As far the first judgment of acquittal is concerned, the same has since been reversed in appeal and as such does not stay in the field. About the other two judgments with the reasonings advanced therein we have but to remark that the learned trial Courts had not fully applied their minds to the factual and legal aspects of the cases. They had not discussed the merit and demerit in the evidence. They have not placed the two versions in juxtaposition to hold either was as which version rings true and if either a party is the aggressor. They were on one hand to believe into the testimony of Mst. Parveen the injured P.W. but since she had forwarded the excuse of darkness for not putting veil at the time of occurrence the trial Courts had inferred that perhaps the occurrence has taken place in dark hours. No genuine effort was made to ascertain the timing of occurrence. Motive and abscondence were not used in corroboration since the other evidence was found weak. It was lost sight of that evidence in corroboration is always used in support of the other substantive evidence, seeming a bit weak. In short we have to evaluate the evidence on our own to find out if the prosecution has succeeded, to bring home charges to the accused-respondents beyond all reasonable doubt. At this stage we were once again cautioned that these are appeals against acquittal and this Court should be loath to upset the findings of acquittal recorded by the trial Courts. But on the point we shall better refer to P L D 1969 SC 398 in which it was observed that the State has under section 417 of the Code of Criminal Procedure, 1898 the right to appeal from an order of acquittal both on facts and law and that it is not permissible to read into section 417 any limitation. In the above authority reference was also made to the practice grown with the passage of time that the Court of appeal will not interfere with an order of acquittal if the evidence is also open to the view formed by the trial Court. In the context we may, however, observe that almost in all cases of conviction the accused exercise their right of appeal while in cases of acquittal a cumbersome procedure is prescribed as the complainant makes an application before the District Magistrate who after hearing the accused and examining the record in consultation with Public Prosecutor, Prosecution Inspector or Prosecution Deputy Superintendent, Police recommends a case to the Advocate-General for filing appeal against acquittal in case he finds that the evidence on record ran sustain conviction of the accused otherwise in most of the cases the District Magistrate declines to recommend filing of appeal against acquittal. The record is once again examined by the Advocate-General when thereafter he submits the case onward to the solicitor to the Government of the Province with his recommendation of filing or non-filing of appeal against acquittal. Solicitor also examines the case on his own and if he finds that it is a fit case for filing an appeal against acquittal he submits the case to the Provincial Government which issues sanction and authority to the Advocate General to file appeal against acquittal. Thus, State appeals against Acquittal under section 417 of the Code of Criminal Procedure, 1898 Are not to be taken lightly. These appeals are to be heard on merits both on factual and legal planes and if on re-examination of the evidence it is fond that the order of acquittal is based on fanciful speculative and conjectural reasoning the court of appeal shall appraise the evidence on record in order to draw its own conclusions therefrom.
10. Now herein the venue, of occurrence inside the mosque stands established the recoveries of blood-stained earth, pellets bullets and empties and other evidence on record, also the F.I.R. and sit ' plan of the cross-case and the statement of Mashal accused-respondent. There is a- water tank in the south western corner of the mosque at a distance of 15 paces from the main gate where in front there is a staircase. Mst.Parveen P.W. has claimed to have witnessed the accused duly armed entering the mosque. She had later on heard the report of fireshot and on seeing towards that direction she saw the. accused-respondents firing at the deceased from a close range and when she raised alarm they also fired at her, as a result she was hit. The trial Courts have believed into her presence at the scene of occurrence and also to have sustained fire-arm injuries during the course of incident but her evidence was discarded since she has said that she had not put on veil because it was dark. It would be proper to first establish the timing of occurrence from "he over all evidence on record. Karim Dad and Mohammad Zaman the other two eye-witnesses were to say that it was about 5 a.m. time i.e. just after sun rise time as the sun on the day of occurrence arose at 0.45 hours according to the calendar. Kala deceased was reading Holy Qura'n at the time of occurrence sitting in a Verandah of the mosque. Ayub deceased was reported busy in 'Wazifa' at the time. The P.Ws. were 'suggested during the course of cross-examination that the Imam was busy teaching Holy Qura'n to the village boys in the mosque after the morning prayers at the time of occurrence. Riaz 14115 years old boy and Mst. Nusrat a 12 years old girl of the village had sustained fire-arm injuries during the course of incident, certainly inside the mosque. The autopsies of the deceased and medico-legal reports of the fire-arm injuries of the P.Ws. and Mashal accused were to report the timing of occurrence around 5 a.m. i.e. at or about or just after the sun-rise time. In case an illiterate lady had attended the Court in veil and had in her zeal forwarded an excuse of darkness for not putting on veil in the village at the time of occurrence, her evidence on this score cannot be discarded when it is otherwise established beyond doubt that the timing of occurrence was around sun-rise time in peak summer season i.e. 7th of June with availability of sufficient light at the time. Mst. Parveen P.W. had stated that she has been knowing the accused-respondents before hand which claim was not disputed. She had…
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