Mst. Safeen Akhtar Vs Ehtisham and others

Judsment Sheet

Pnsn.lwm Hrcn Counr. ASBoTTABAD BENCH

JUDICIAL DEPARTMENT

Criminal Aopeal No.89-A/2018

Mst.SafeenAkhtar... (Appellant) gqE Ehtesham and others...(Respondents) Present: Mr. Baber Awan and Ms Kiran Ayub, Advocates for appellant.

Malik Amjad Inayat, Assistant Advocate General for State.

M/S Awais Abbasi and Saad Abbasi, Advocate for respondents/accused.

Date of hearing :18.02.2025.

JuucvrrNr AURANGZEB. J.- This single judgment IS directed to decide the instant Criminal Appeal No.89-A/2018 titled "Mst.Safeen Akhtar vs.

Ehtesham and others" as well as the connected Criminal Appeal No.40-A/2023 titled ('Mst.Safeen Akhtar vs. Muhammad Nazakat alias Sain" as both of them are outcome of the one and same case registered vide FIR No.355 dated 30.08.2013 under sections 302/324/34

(DB)Hon'ble Mr.Juslice Muhanmad Faheem llali H on' ble Mr.Justice Aurang:e b

PPC at Police Station Hattar Haripur. The appellant/complainant, through the former appeal, has challenged the order/judgment dated 11.04.2018 of the leamed Sessions Judge, Haripur whereby respondents/accused Ehtesham, Rafaqat, Aamir, Malik Mamrez have been acquitted, while through the latter appeal, she has challenged the order/judgment dated 30.01.2023 of learned Additional Sessions Judge-II, Haripur whereby the respondenVaccused Muhammad Nazakat alias Saen has been acquitted.

2.Precisely, the facts ofthe present case as alleged by the appellant/complainant namely Safeen Akhtar (PW-9 in this appeal, while PW-7 in connected Cr.A No.40-A/2023) inthe Crime Report are that on 30.08.2013 she in injured condition alongwith dead bodies of her husband Javed Akhtar and son namely Mohsin Javed lodged a report to the local police at 16:00 hours in Emergency Ward DHQ Hospital Haripur in shape of Murasila to the

(DB)Hon'ble Mr.Justice Muhammdd f'aheen Wali I I on' b le Mr. J ustice,4urang:e b

effect that on that day at 02:30 p.m. she alongwith her husband Javed Akhtar and son Mohsin Javed as well as other inmates of the house were present in their house, when they heard fire shots outside their house, whereupon they came out of the house and saw that their co-villagers namely Saen Nazakat (acquitted respondent in connected Cr.A No.40-Al2023) armed with pistol, Ehtesham, Aamir and Rafaqar armed with Kalashnikovs and accused Mamrez (acquitted respondent in this appeal) armed with riffle were coming towards their house and were making aerial firing. Acquitted respondent Mamrez asked his companions to murder all of them upon which acquitted respondent Saen Nazakat fired with his pistol at Javed Akhtar, who was hit on the abdomen, while acquitted respondent Ehtesham made firing with Kalashnikov at Mohsin Javed who sustained injuries on various parts ofthe body' Accused Mamrez gave butt blow to the complainant on her head, while acquitted

(DB)Hon'ble Mr.Justice Muhammad Faheem //ali Hon' bl e Mr. Jusl ice Aurang.e b

respondents Aamir and Rafaqat made firing at the complainant as well as both the deceased, however, the complainant escaped unhurt.

Both Javed Akhtar and Mohsin Javed succumbed to the injuries on the way to hospital. The occurrence was witnessed by Saeed Akhtar and Muhammad Irshad besides the complainant. Motive for the occulrence was shown as an altercation taken place in Masjid between deceased Mohsin Javed and Ehtesham as well as Aamir.

3.After registration of the case, a full- fledged investigation was carried out and then challan was put in court against the acquitted respondents. Trial of the acquitted respondents ln present appeal was conducted in case No.73l7 of 2013 wherein in support of its case, prosecution produced as many as sixteen witnesses and on conclusion of trial against them, after hearing arguments of both the parties, the leamed trial court acquitted them of the charges levelled against them, while (DB) Hoh'ble Mt.Jttstice Muhammad Faheem llali H on' ble lV r. Jus t i ce Aurang:e b

acquitted respondent in connected Cr.A No.40- N2023 namely Saen Nazakat (then absconding) was declared as Proclaimed Offender vide impugned order and judgment dated 11.04.2018. On arrest of acquitted respondent Saen Nazakat and on completion of investigation to his extent, supplementary challan was submitted against him whereupon his trial was conducted in case No.3ll7 of 2021 wherein to support of its case, prosecution produced as many as eighteen witnesses while statements of PW-8, PW-13, PW-14 & PW-15 recorded against him in terms of section 512 CI.PC were transposed to his trial and on conclusion of his trial, after hearing arguments of both the parties, the learned trial court acquitted him, too, of the charges levelled against him, vide impugted order and judgment dated 30.10.2023. Feeling aggrieved, the complainant has assailed both the aforesaid acquittal orders/judgments before

(DB)Hon'ble MrJuslice Muhqmmad Faheem l ali H on' ble Mr.Justice Aurongze b

this Court through this and the connected appeal.

4.Arguments of learned counsel for the parties and learned Assistant Advocate General were heard in detail and record perused with their able assistance.

5.At the very outset, it was noted that report regarding the occurrence was recorded at l6:00 hours while the incident took place at 02:30 p.m. The Investigation Officer namely Aurangzeb (PW-15 in this appeal whose statement is also transposed in trial of acquitted respondent Muhammad Nazakat) has categorically stated in the beginning of his cross-examination that he started investigation at 15'.20 hours i.e. prior to lodging of report at 16:00 hours. This aspect ofthe case indicates that preliminary inquiry/investigation was conducted before the registration of case. The Supreme Court of Pakistan rn a case has observed that the F IR in resoect ofthe incident I Nazeer Ahmed v. The State and others (2019 SCMR 594)

(DB)Hon'ble Mr.Justice Muhammad Faheem ll/ali Hon' b le Mr. Justic e Aurang:e b

in issue had not been lodged at the Police Station giving rise to an inference that the same had been lodsed and resistered after deliberations and oreliminarv investisation.

Similarly, in another case2, the Supreme Court has acquitted the accused and held that FIR in respect of the incident in issue been halked out afte r deliberations and limin investi ation at the soot. Similarly, the Supreme Court in case of Mian Muhammad Nawaz Sharif , has acquitted him while observing that from the statement of the Investigating Officer, it appears that investi sat ion and collection of evidence had alread v been done before the F.I.R. was lodsed and the materials so collected were simply handed over to the Investigating Officer to be produced in Court.

6.Though two persons lost their lives in the occurrence due to firearm injuries and the 2 Abdul Jubbu. ulias Jabbari v. The state (2017 s c M R I155) 3 Miun Muhammad Nawaz Sharif v. The State (PLD 2009 Supreme Court 814)

(DB)Hon'ble Mr.Justice Muhammad Faheem Wali Il oh' ble M/.Juslice Aurang.e b

complainant sustained injury and in order to bring home charge against the acquitted respondents, the prosecution produced the ocular account through eyewitnesses i.e. the complainant namely Mst.Shafeen Akhtar as PW-9 (as PW-7 in trial of acquitted respondent Nazakat), Saeed Akhtar as PW-10, Muhammad Irshad as PW-l l, however, when we gone through their Court statements they would transpire that the same are not trustworthy and confidence inspiring as the same is not supported by any medical evidence and the occurrence has not been proved in the mode and manner as alleged in the Crime Report. As per the ocular account furnished by the complainant/appellant, acquitted respondent Ehtisham made firing at her son Mohsin Javed with Kalashnikov, however, as per Dr.Roshan Zada PW-7 (as PW-9 in trial of acquitted respondent Nazakat) inlet wounds on the person of deceased Mohsin Javed were of three different sizes. He

(DB)Hon'ble Mr.Justice Muhammad Faheem V/ali Hon' ble Mr.Justice Aurungze b

also admitted it correct that the sizes of injuries on the person of deceased Mohsin Javed are possible through use ofdifferent weapons. It is well settled by now that whenever ocular account is contradicted bv the medical evidence then such ocular account cannot be relied upon. In a recent casea the Supreme Court of Pakistan while acquitting the accused has held that once a single loophole IS observed in a case presented by the prosecution, such as conflict in the ocular account and m edical evidence or presence of eye-witnesses being doubtful, the benefit of such looohole/lacuna in the orosecution's case automaticallv eoes in favour of an accused.

The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour ofthe accused.

However, as discussed above, the prosecution has failed to prove its case beyond any a Khial Muhammad v. The State (2024 SCMR 1490)

(DB)Hon'ble ll,lr.Justice Muhammad Fqheem Wali Hon ble Mr.Justice ,1urang:eb

reasonable doubt. Similarly, in another case5 the Supreme Court observed that according to two witnesses of the ocular account, the accused while armed with .30 bore pistol made a straight fire shot on deceased, which landed on his chest, due to which he fell down and ultimately succumbed to the injury. However, this stance was contradicted bv the medical evidence, AS according to the doctor, who conducted postmortem examination of the deceased, the injury on the chest, just above the nipple of the deceased, was an exit wound and the margins of the wound were black whereas the entry wound was on the back of the deceased i.e. at thoracic spine. Blackening around the wound showed that the fire shot would have been made from a close range but according to the site plan, the accused was shown standing at a distance of 18 steps away from the deceased. Such major discrepancy raised serious doubts on the credibility of the Tajamal Hussain Shah v The State and another (2022 SCMR l s67)

(DB)Hon'ble Mr.Juslice Muhammad Faheem ltali Hon' b le Mr. Just ice Aurong:e b

-il-

prosecution witnesses of the ocular account.

Prosecution had failed to prove its case beyond any reasonable shadow of doubt. In another case6, the Supreme Court of Pakistan has acquitted both the accused by observing the ocular account in this case is full of contradictions and does not insoire confidence.

7.It also merits to mention here that albeit the complainant/appellant alleged to have sustained injuries, however, there is no cavil with the proposition that merely because a witness has stamp of injury on hislher person is not per-se tantamount to a stamp of credence on his/her testimony. In this respect, reliance is placed o n cases titled "NAZI AHMAD MUHAMMAD I OBAL and another" reported as 20ll SCMR 527 and "Muhammad Pervez and others vs. The State and others" reported as 2007 scMR 670.

8.It is the case of prosecution that prosecution witnesses Mst.Safeen Akhtar and Muhammad Ijaz alias Billa and another vs The State and others

(2024 SCMR 1507)

(DB)Hon'ble Mr.Justice Muhammad Faheem llali H on' ble Mr. Jusl ice Aurang:e b

Saeed Akhtar alongwith both the deceased went out of the house on hearing of fire shots, however, site plan transpires that the appellant/ complainant as well as both the deceased and acquitted respondent have not been shown present in front of the house of the deceased rather they are shown at a distance from the house indicating the factum that the complainant party would have proceeded towards the accused party which creates doubt about conduct of the complainant party.

Moreover, as per column No.S of the inquest- report, eyes of deceased Mohsin Javed were found open, which not only makes conduct of eyewitnesses unnatural but also creates doubt about presence of PWs Saeed Akhtar and Muhammad Irshad on the spot. In a caseT the Supreme Court of Pakistan has observed that the eyes and mouth of the deceased were found open, thus, if the parents. witnesses. and the two close friends were Drese nt then- at least Muhammad Asif vs The State (2017 SCMR 486)

(DB)Hon'ble Mr.Justice Muhammdd Faheem ll/ali Hon' ble Mr. J ustice Atrang:e b

after the death as is a consist en t oractice of such close relatives- thev would have closed eves and mouth ofthe deceased o n his exoirv.

This fact by itself indicates that none was present with the deceased till his death and why his eyes and mouth remained open and were not set right by any one and his dead body was discovered late in the night.

9.Sifting of record further transpires that the appellant/complainant when appeared during trial ofacquitted respondent Nazakat as PW-7 she deviated from her statement recorded during trial of acquitted respondent Ehtisham etc. As PW-7 she stated that she did mention in her report that she alongwith Javed Akhtar, Mohsin Javed and Saeed Akhtar, Muhammad Irshad were present in their house at about 02:05 P.M (confronted wherein, the time as 0l:05 PM is not mentioned. She further stated that she did mention in her report that Saeed Akhtar and Irshad prosecution witnesses were present in her house Prior to the (DB) llon'ble Mr.Justice Muhammod Faheem ll/ali llon' b le Mr. Just ice Aurang:e b

occulTence (confronted presence of Saeed Akhtar and Muhammad Irshad prosecution witnesses in the house of complainant prior to the occurrence is not mentioned), therefore, statement of the appellant/complainant cannot be relied upon for the purpose of conviction' So far as other eyewitnesses namely Saeed Akhtar and Muhammad lrshad are concemed, the former is resident of village Chhach, while the latter is residing at a distance of 0l mile from the spot, therefore, both these witnesses were not supposed to be present on the spot at the relevant time, however, the prosecution has failed to justifu their presence on the spot, therefore, they seem to be chance witnesses' In a case8, the Supreme Court of Pakistan acquitted the accused by observing that rosecution's e-witne SES chanc

witnesses. Thev cou ld not prov e the re n for their Dresence at the sDot at the time of occurrence. Further reliance is placed on s Muhammad Hassan Ys. The State and others (2024 SCMR 142?)

(DB)Hon'ble Mr.Justice Muhammad Faheem ll/ali Hon' ble Mr. Just ice A urang:e b

judgments reported as 2022 PCT.LJ ll77 and 2022PCr.LJ 1334.

10.Perusal of record further reveals that a 12 bore shotgun bearing No.33521 was shown recovered on pointation of acquitted respondent Mamrez which alongwith empty of the same bore were sent to the FSL for analysis and report thereof (Ex.PW-15/13) reads that the recovered empty was not fired from the said shotgun, which creates reasonable doubt in the prosecution case. During his statement recorded under section 342 Cr.PC in case registered under section l3 Arms Act, acquitted respondent Mamrez produced original license regarding the said shotgun which licence was not called in question by the prosecution and in the wake thereof, he alongwith co-accused Ehtesham were acquitted in that case and the recovered shotgun has rightly been ordered to be returned to acquitted respondent Mamrezby the learned trial court.

(DB)Hon'ble Mr.Justice Muhammad Faheem Wali Hon' ble Llr. J ustice Aurang:e b

ll. So far as the recovery of Kalashnikov bearing No.59633 on pointation of acquitted respondent Ehtisham is concemed, the same is shown to have b een recovered on 01.09.2013 however, as per application for sent the same to FSL, the said Kalashnikov alongwith empties and spent bullet were handed over constable Sheraz No.502 (PW-5 in this appeaU PW-4 in connected appeal) on 30.08.2013 which not only makes the alleged recovery of Kalashnikov highly doubtful but also causes a serious dent to the prosecution case.

12.Regarding the recovery of pistols including alleged weapon of offence attributed to the acquitted respondent Nazakat alias Saen, it was noted that undisputedly the same were not recovered from his personal possession rather they were recovered from possession of acquitted respondent Ehtisham by PW Chanzeb Khan (then) SHO but the fact remains that the prosecution could not substantiate that which of these pistols belongs to the acquitted

(DB)Hon'ble Mr.Juslice Muhqmnacl Faheem Wali Hon' ble M r. Jus tice Aurang:e b

respondent Nazakat alias Saen. Moreover, the alleged weapon of offence i.e. pistol was sent to the FSL after about eight years, therefore, it loses sanctity in the eye of law. It is also part of the record that with regard to recovered Kalashnikov, a separate FIR was registered under section l3 Arms Act against the acquitted respondent namely Ehtisham, however, after trial, the same was also culminated into acquittal of the accused.

13.It also merits to mention here that in the Crime Report, the prosecution has set up a motive for the occurrence i.e. an altercation which took place between deceased Mohsin Javed and accused Ehtisham and Aamir in village Masjid during Jumma Prayer, however, neither any witness was produced in this respect nor the prosecution could substantiate motive part of the case. It is settled law that prosecution is not bound to set a motive, however, when once it opted to set a motive then it has to be proved and in case of its

(DB)Hon'ble Mr.Justice Muhamuqd Faheem Wali Hon' ble Mr. Justice Aurang:e b

failure to do so, benefit thereofhas to be given to the accused. In a casee, the Supreme Court of Pakistan has observed that according to the prosecution the motive of the occurrence was previous quarrel between co-accused Nazakat Hussain Shah (tried separately) and Wajid, son of the complainant. However, the prosecution failed to oroduce the said Wa iid in order to prove the motive part, therefore, it can safely be concluded that prosecution could not prove the motive part of the story. The Supreme Court of Pakistan in another the casel0 has also held that it is now well established that if a specific motive has been alle sed bv the ut lo n then it is dutv of th ep rosecutlon to establish the sai d motive throu cogent and confidence msp irine evidence. Otherwise, the same would go in favour of the accused.

14.As far as the alleged abscondance on the part of acquitted respondent Muhammad Nazakat alias Saen is concemed, suffice it to e Tajamal Hussain Shah v. The State and another (2022 SCMR 1567) ro Sarfraz and another vs The State (2023 SCMR 670)

(DB)Hon'ble Mr.Justice Muhammad Faheem Woli Hoh' b le Mr. Justice Aurung-e b

say that abscondance alone is not sufficient to record conviction of accused as it is well- settled norm of the criminal jurisprudence that mere abscondance cannot be made a ground for the conviction of an accused as disappearance of a person after the occufience is but natural if he is involved in a criminal case rightly or wrongly. In the caserr the Supreme Court of Pakistan while acquitting the accused has observed that absconsion cannot be viewed as a proof for the o ffence. which cannot be made basis for co nviction. rather it is the p rosecutlon who has to Drove rts case independe ntly without anY reasonable shadow ofdoubt.

15.It is settled law that for giving benefit to an accused, it is not essential that there should be many circumstances creating doubts, even a sinsle doubt is sufficient to extend its benefit to an accused oerson as it is the cardinal pnnc iple of cri minal adm inistration of iustice rr Tajamal Hussain Shah vs The State and another (2022 SCMR

(DB)Hon'ble Mr.Justice Muhammad Faheem llali Hon' ble Mr. Just ic e Aurang:e b

that let hundred suiltv oersons be aco uitted but one innocent oerson should not be convicted and thus by applying the aforesaid yardstick, the leamed trial court has rightly extended the benefit of various doubts in favour of the acquitted respondent. In a recent casel2 the Supreme Court has held that it is a well settled principle of law that for the accused to e afforded the ri sht of the benefit of the doubt -it ls not necess arv that there shou ld be manv circumstances creatin (t uncertaintv and if there is onlv one doubt . the be nefit of the same must go to the oetitioner. The Supreme Court of Pakistan in another caser3, has held that single circumstance creatin s rea sonable doubt in a t mind about the euilt ofaccused makes him entitled to its benefits. not as a matter of grace and concession but as a matter of risht.

The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused Saghir Ahmad vs The State and others (2023 SCMR 241) r3 Bashir Muhammad Khan v. The State (2022 scMR 986)

(DB)Hon'ble Mr.Justice Muhammad Faheem Wali Hon' b le Mr. Justice Aurang:e b

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and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. Similarly, in a casela the Supreme Court has reiterated the same rational by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. In another casers the Supreme Court has held that it is settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, ra Khalid Mehmood alias Khaloo v. The State (2022 SCMR I 148) t5 Kashif Ali alias Kalu v. The State and another (2022 SCMR r5ls)

(DB)Hon'ble Mr.Justice Muhammad Faheem Wali tlon' b le 14 r. Jus tic e Aurangze b

trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused. Reliance in this behalf can be made upon the following cases:- D Tario Pervez v. The State (1995 scMR 1345) iD Ghulam O adir and 2 others v.

The State 200 R 1221 iiD Muhammad Akram v. The State

I SCMR 230

iv)Muhammad Zaman v. The State 2014 SCMR 749 and

v)Muhammad Mansha v The State" 2018 scMR 7

16.For the reasons recorded above, no illegality or irregularity could be either pointed out or found in the impugned judgments/orders dated 11.04.2018 and dated 30.01.2023 in the connected appeal No.40-N2023, therefore, the same are maintained, while instant criminal appeal as well as the aforesaid connected appeal being meritless are dismissed.

ANNoUNCED t8.02.2025.

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JUDGE

(DB)Hon'ble Mr.Justice Muhammad Faheem llali ll on' ble Mr.Juslice AurahS.e b