Cr.A No.45-46-D & Cr.R No.19-D/12 Naveed Anjum vs State

2014 P Cr. L J 93

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

NAVEED ANJUM alias NAVEED HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos.45-D, 46-D and Criminal Revision No.19-

D of 2012, decided on 19th September, 2013.

(a)Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---F.I.R. did not contain the names of accused and eye-witnesses---Eye-witnesses had been introduced in supplementary statement--- Solitary witness relied upon by the prosecution to bring home guilt of accused, was nephew of the complainant; and story advanced by him did not stand to reason---Place of occurrence was a thoroughfare and there were houses of different people, but none attracted from those houses--- Supplementary statement introduced by the witnesses, had been recorded after seven days of the occurrence; such delay would give an inference to the effect that second version had been introduced with deliberations, which adversely affected the case of prosecution---Complainant had not seen the occurrence; and deposition of prosecution witness who later on was introduced by the complainant, suggested that he did not witness the occurrence---No other evidence was available on the file to connect accused with commission of offence---Complainant had failed to justify his presence---Evidence of chance witness could not be relied until his presence was proved and justified---Strong corroboration was needed to make the statement admissible, which was lacking in the present case---Recovery of blood-stained earth from the place of occurrence, along with one lead of .30 bore; and Forensic Science Laboratory's positive report, did not tally the ocular account of F.I.R.---Subsequent improvement through supplementary statement made, and evidence planted, in no way had connected accused with commission of crime---Trial Court had blindly relied upon the statement of alleged eye-witness and based conviction of accused solely upon it which was highly unsafe and against the established principles of appreciating and evaluating evidence in criminal cases for awarding conviction---Complainant had been unable to make out a case warranting conviction of acquitted accused persons---Impugned judgment of conviction and sentence recorded by the Trial Court, were set aside, accused was acquitted of the charges levelled against him and he was set free, in circumstances.

(b)Criminal trial---

----Evidence---When F.I.R. was silent to charge anyone; and subsequent improvements were made by complainant adding eye-witnesses of the occurrence, such would be nothing, but malice and no credence could be given to their testimony.

Abdul Latif Khan Baloch and Saifur Rehman Khan for Appellant.

Sanaullah Shamim, A.A.-G. for the State.

Ghulam Hur Khan Baloch for the Complainant.

Date of hearing: 19th September, 2013.

JUDGMENT

ABDUL LATIF KHAN, J.---Through this single judgment, we propose to dispose of Criminal Appeal No.45-D of 2012, Criminal Appeal No.46-D of 2012 and Criminal Revision No.19-D of 2012 as all the three matters are the outcome of one and the same judgment dated 16-7-2012 passed by learned Additional Sessions Judge-III, D.I. Khan vide which accused Niaz Hussain, Mst. Shah Bibi and Mst. Nighat Shaheen (respondents in Criminal Appeal No.46-D of 2012) were acquitted of the charges whereas accused Naveed Anjum (appellant in Criminal Appeal No.45-D of 2012) was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with compensation of Rs.2,00,000 payable to the legal heirs of deceased in terms of section 544-A, Cr.P.C. or in default, to suffer six months further R.I, with benefit of section 382-B, Cr.P.C. extended to him.

2.The prosecution story, in brief, is that on 8-9-2009 at 1110 hours, complainant Ghulam Qasim reported the matter to the local police alleging that his son-in-law Niaz Hussain informed him through mobile phone that his daughter was fired at, due to which the complainant rushed to the hospital. On query, Niaz Hussain told the complainant that his daughter was killed by some unknown accused by firing at her in the house, therefore, the complainant lodged the report and charged no-one for the murder of his daughter. However, later on, the complainant recorded his supplementary statement and charged the accused for the commission of offence.

3.After completion of usual investigation, complete challan against the accused was submitted in the trial Court where they were formally charged to which they did not plead guilty and claimed trial. In order to prove its case against the accused, the prosecution examined eleven witnesses whereas statement of Shaukat Ali FC No.353 was recorded as C.W.1. Accused were also examined under section 342, Cr.P.C., but they neither wished to be examined on Oath nor desired to produce any evidence in their defence. After hearing the

arguments of learned counsel for the parties, the learned trial Judge acquitted accused/respondents Niaz Hussain, Mst. Shah Bibi and Mst. Nighat Shaheen whereas convicted and sentenced the appellant Naveed Anjum alias Naveed Hussain vide impugned judgment dated 16-7-2012.

4.M/S Abdul Latif Khan Baloch and Saif-ur-Rehman Khan, learned counsel for the convict-appellant contended that complainant Ghulam Qasim, who happens to be the father of deceased Mst. Shazia Bibi, made report at 1110 hours on 8-9-2009 while alleged occurrence took place at 0830 hours in the morning, without any explanation regarding delay. It was contended that the convict-appellant was not charged in the F.I.R. and was later on involved after seven days on 15-9-2009 through a delayed supplementary statement, which amounts to subsequent second version, introduced after deliberations, causing serious damage to the prosecution case. It was added that complainant remained unsuccessful to justify his presence. The alleged appearance on spot per chance makes him a chance witness, whose evidence cannot be considered unless corroborated by plausible evidence. It was added that alleged eye-witness. Saqlain, not named in the F.I.R., cannot be given that value as it is established by now that no credential value can be given to such witness. It was also argued that co-accused on the basis of same set of evidence have been acquitted of the charge. The judgment delivered by the trial Court was vehemently attacked on the ground of improper scanning of evidence and wrongly recorded conviction of the convict-appellant in violation of established principles of procedure, law besides.

5.On the contrary, the learned A.A.-G. assisted by Mr. Ghulam Hur Khan Baloch, learned counsel for the complainant argued that admittedly Ghulam Qasim complainant hails from Bhakkar (Punjab) whereas occurrence took place in village Khana Sharif, D.I. Khan and was telephonically informed by accused Niaz Hussain, husband of the deceased, about the occurrence. It was contended that convict-appellant along with all other three acquitted co- accused were residing in one house, where occurrence took place. It was contended that complainant recorded the same facts as disclosed to him by the husband of the deceased namely Niaz Hussain, acquitted accused, without any malice on his part and did not charge anyone. Had there been any malice against the accused, have charged them at the time of F.I.R. but it was only after acquiring knowledge disclosed by Saqlain that he charged the accused in supplementary statement. It was contended that Niaz Hussain, acquitted accused, informed the complainant at Punjab but did not report the matter to police. He added that of course it is a case of single fire which is in line with the site plan and medical evidence.

6.We have given our anxious consideration to the arguments of learned counsel for the parties and perused the record with their able assistance.

7.The prosecution case as gleaned from the report made in murasila, got recorded by Ghulam Qasim complainant, father of deceased Mst. Shazia Bibi, is that on 8-9-2009 at 1110 hours, his son-in-law, husband of the deceased, informed him through cell phone that his daughter was hit with fire. He was also told in the hospital by the said Niaz Hussain that his daughter was killed, by unknown accused, who charged unknown accused and on the basis, F.I.R. No.214 dated 8-9-2009, under sections 302/449/109/34, P.P.C. was registered in Police Station Paroa, District D.I.Khan. Later on, through supplementary statement recorded under section 161, Cr.P.C. on 15-9-2009, convict-appellant along with three acquitted co- accused were charged for the commission of offence.

8.The prosecution produced as many as eleven witnesses to prove the case against the accused. As the F.I.R. does not contain the name of accused as well as eye-witnesses, rather the eye-witness has been introduced in supplementary statement, who was examined as P.W.11. We would like to scan his version first as he is the solitary witness relied upon by the prosecution to bring home guilt of the accused. He deposed that on 8-9-2009, he had gone to house of Niaz Hussain, husband of deceased Mst. Shazia Bibi, happens to be his cousin. When he entered into the house, he saw Mst. Nighat Bibi (acquitted accused) had taken hold of deceased from her arms while Mst. Shah Bibi (acquitted accused) held her from legs and Niaz Hussain (acquitted accused) present in the room, ordered his brother Naveed Anjum (convict-appellant) to fire at deceased, who accordingly fired and as a result of which Mst. Shazia Bibi was hit and died on the spot, he left the spot and went to his home. He came to accused on 10-9-2009 and told them that he feels burden on his conscious and wants to disclose the incident to complainant party and accordingly, did so. The statement of this P.W was also recorded under section 161, Cr.P.C. He happens to be the nephew of complainant. The story advanced by him does not stand to reason. The inmates of a house are going to kill the lady, wife of the owner and elder of the house and had caught hold of her by two ladies and not by male members particularly Niaz Hussain, who was there, only to pass the order and during this time the door (main gate) has been left open for outsiders to come and witness the occurrence, as the alleged eye-witness has suddenly entered, as per his version, and saw them killing her. The door of that room too remained open, for all practical purposes it is not possible. Moreover, the deceased, having allegedly caught by two ladies and her husband busy in issuing direction to his brother, having pistol with him, would definitely make hue and cry, followed the noise of fire shot, had not attracted anyone from the street wherein the house is situated in mohallah/abadi. Site plan, if perused in this context, there is thoroughfare on southern side and house of Allah Diwaya and on northern side, baithak of Allah Diwaya to the house of Niaz and on western side, house of Faizu is situated. None attracted from these houses apart from street to the place of occurrence, which speaks loudly about the fact that murder not committed in the mode and manner set forth by the prosecution. In addition to this, the alleged eyewitness, after witnessing the occurrence, went home peacefully as if nothing happened. Being close relative, neither accompanied them to the hospital nor helped them in funeral arrangements nor participated in funeral ceremony and straightaway decamped from the spot and after seven days came out, with as conscious mind which is a story unreliable for all practical purposes and can only be termed as a fiction but not reality. His conduct attracts the provisions regarding punishment of concealing facts and is liable to be prosecuted rather being believed as witness. This witness not named in F.I.R. and has been later on purposely introduced to narrate a concocted story. No value can be given to the evidence of such witness. The supplementary statement introducing him, has been recorded after seven days of occurrence and delay in recording supplementary statement, would give an inference to the effect that second version has been introduced with deliberations, adversely affects the case of prosecution. Appreciation of evidence in criminal cases, where F.I.R. is silent to charge anyone and subsequent improvement made by complainant adding eye-witnesses of the occurrence, would be nothing but malice and no credence could be given to their testimony.

9.The complainant has not seen the occurrence. P.W.10 introduced later on by complainant, as eye-witness, but his deposition suggests that he too is not the witness of occurrence. No other evidence available on file to connect convict-appellant with commission of offence. Statement of P.W.10 also recorded after seven days on 15-9-2009. The complainant failed to justify his presence in entire episode. Evidence, of chance witness cannot be relied until presence proved and justified. Strong corroboration needed to make the statement admissible which is lacking in the instant matter.

10.As per statement of lady doctor, who conducted the autopsy on the dead body of deceased Mst. Shazia Bibi, there exist single wound on the anterior middle lateral side of clavicle bone (above the clavicle) with blackening seen around the wound 1/2" in size (charring marks positive) and exist wound on the posterior side of scapula mainly on the scapular tip region. In cross-examination opined about charring marks usually comes around the wound when first

fireshot is made at a distance of about three meters.

11.The recovery of blood-stained earth from the place of occurrence along with one lead of .30 bore from wall at point "A" of site plan and positive F.S.L. report, do not tally the ocular account of F.I.R. and subsequent improvement through supplementary statement made and evidence planted in line in support of these facts, but in no way connect the accused with commission of crime. The learned trial Court has blindly relied upon the statement of alleged eye-witness (P.W.11) and based conviction of convict-appellant solely upon it, which is highly unsafe and violently against the established principles of appreciating and evaluating evidence in criminal cases for awarding conviction. Learned counsel for the complainant has been unable to make out a case warranting conviction of the acquitted respondents.

12.For the reasons mentioned above, Criminal Appeal No.46-D of 2012 and Criminal Revision No.19-D of 2012 are dismissed whereas on acceptance of Criminal Appeal No.45-D of 2012, the impugned judgment of conviction and sentence dated 16-7-2012 recorded by learned Additional Sessions Judge-III, D.I. Khan is set aside and the convict-appellant Naveed Anjum alias Naveed Hussain is acquitted of the charges levelled against him. He shall be set free forthwith from Jail if not required in any other case.

13.Above are the detailed reasons of our short order of even date.

HBT/591/P Appeal accepted.