Muhammad Hanif VS The State & others.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MTNGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

r.A. No. 145-N4/2014

Cr.R. No.32-MJ20l4

CONSOLIDATE

JUDGMENT

Date of hearing: 07.11.2017.

Appellant:- (Muhammad Hanifi bv Mr. Amir Gulab Khan, Advocale.

ResDondentsz- e State & I anotheil bv Mr. Rahim Shah. Astt: Advocate Gen eral and Mr. Adil Khan Tahirkha Atlvocate.

MOHAMMAD IBRAHIM KHAN. J.- Stemmin (, of the Criminal Appeal bearing No. 145-M of 2014 preferred by the convict/Appellant Muhammad Hanif with the prayer for his acquittal and Criminal Revision bearing No. 32-Ml20l4 for consideration before us preferred by the complainant-party for enhancement of the conviction and sentences awarded to the accused/Respondent are the outcome of the same FIR bearing No. 224 dated g^ ill- 24.08.2013 charged under sections 302 PPC & 13 A.O. registered at Police Station Chuprial District Swat, therefore, are disposed of through this singled-out judgment.

N.w.b (O.8.) Hon ble Mr. Ju i.e M6h.hmad lbrahim Xhan Hon'hle Mr.iuilc€ khriro lbr:hih

2 The First Information Report contents as culminated in the charge-sheet against the accused/Appellant rendered that on 24.08.2013 at Asar Vela at a place known as Jungle Mehrab Paty falling within the criminal jurisdiction of Police Station Chuprial he has caused the murder of Alam Sher by firing at him with his Kalashnikov, thereby stood trial under section 302 PPC. Another head was framed that since recovery was effected from his person of the crime weapon Kalashnikov alongwith recovery of the empties 3 in number, thereby committed an offence within the meaning of section 13 A.O.

3 When did not plead guilty by the accused/Appellant, he claimed trial, hence by examining PW-1 Rahim Khan ASI, PW-2 Khan Zada,PW-3 Akbar Aman Contable, PW-4 Amin Khan ASI, PW-5 Laiq Shah Constable, PW-6 Mst. Nusrat Bibi, PW-7 Mst. Shahida Bibi, PW- f, U)- 8 Alim Zada, PW-9 Dr. Shah Kameen Medical Officer Matta, PW-10 Sher Gul SUCIO and PW- 11 Said Bacha DFC, then evidence of prosecution was put to an end under the joint Naw.b (D.B.) Hon'ble Mr.ruslice Moh.mhad rbrahim Khan Hon'ble Mr.l$lice khtiaa lbrahim

statement recorded by the learned counsel for the complainant and learned Public Prosecutor.

Thereafter, the accused facing trial was examined under section 342 of the Code of Criminal Procedure, wherein he negated the prosecution evidence through his respective answers and posed innocence.

4 At the end, in Sessions Case No. 5711 of the year 2013, the learned Additional Sessions Judge/ lzafi, Zila Qazi Matta came up with his judgment dated 05.05.2014, whereby the accused/Appellant Muhammad Hanif was convicted and sentenced in the following manner:-

a U/S 302 (b) PPC to life imprisonment alongwith compensation of Rs. 200,000/- (2 lacs) within the meaning of section 544-A Cr. P.C payable to the LRs of lhe deceased. In case of non- payment of compensalion, the same shall be td- recovered as arrear of land revenue, in default thereof, the accused shall farther suffer six months SI.

a U/S 13 A.O. to 3 years imprisonment and to pay ./ine of Rs. 5,000/- or in default thereof shall further undergo 3 months SL

Nawrb(0.8 )Hon bl. Mr.iuilic. Moh.mm.d bEhim Kh.n Hon'51.Mr -ruric. Lshri.o rbr.him

a Both the senlences shall run concurrently, however, benefit of section 382-8 Cr. P,C. wus ertended to lhe accused/Appellant, 5 We have afforded fair opportunity of hearing to the learned counsel for the accused/Appellant, learned counsel for the complainant and learned Astt: Advocate General for the State, record was delved deep into with their valuable assistance.

6 The prosecution story mainly hinges upon the ocular account of Mst. Nusrat Bibi examined as PW-6, who is said to have witnessed the occurrence hounding after her deceased husband and the accused/Appellant Muhammad Hanif right from her house to the place of occurrence known as Jungle Mehrab Paty Wond Banda. It was on 24.08.2013 when it struck 2 o'clock the accused/Appellant Muhammad Hanif had come to the house of the deceased Alam Sher o-'^l / drly armed with Kalashnikov and after demand of the borrowed money which became the cause of death of her deceased husband. Thereafter, they left for the place where this murder took place. The deceased had left behind another N.wab(o,B )Non bl. Mr.l!sti.€ Mohahmad lb..him Xhan Hon bl. Mr.lust.. khtiaqlbr.him

widow by the name of Mst. Shahida Bibi examined as PW-7, who supported the complainant Mst. Nusrat Bibi PV/-6 with regard to the motive being set that on account of the borrowed money for its return the accused/Appellant Muhammad Hanif became infuriated who took her husband outside their house while Mst. Nusrat Bibi (PW-6) charged them and at Asar Vela she was informed that her husband has been killed by the said accused/Appellant Muhammad Hanif. These important prosecution witnesses if are believed to be truthful witnesses being of ocular account it would bring the accused/Appellant's case not only for the punishment awarded by the learned Sessions Court but also criminal revision preferred by the complainant for enhancement ld- *outa be worth for its consideration. The conduct of these witnesses who are widows would be rational particularly when Mst. Nusrat Bibi had run down her husband and the accused/Appellant to the place which is a densely forest. To believe her, PW-6 Mst. Nusrat Bibi at Naw.b(D.B )Hon bl. Mr.Juilic. Moh.mm.d lbdhlm ftan Hon'5l. tvlr. iGtl.. lshti.a lbr.him

the time of lodging of the First Information Report has not mentioned about carrying the Kalashnikov when accused/Appellant Muhammad Hanif had all alone came to their house while in the examination-in-chief at the very opening Para she has improved her statement by stating that the accused/Appellant Hanif had come to their house alongwith Kalashnikov. She has been confronted when replied that:-

- jP ( 4 ttl 47 L ct t/ 7 :,/; fiP (,.tFn 7{l{-lts Being the sole witness to the occurrence if she would have been there at the relevant time and the place where the deceased was put to death the accused/Appellant should have also resorted to kill her, but this fact has utterly been denied in the following manner:- il -e{o fr /,,s,f 4,, y'a -,,.) -7 <j i q g' p)' It? ;,*.,Vd / sv L / c7 -a el,v / ; v -7 $ L fi / tts -t,t )4 {oi} I f 4 i-,t' Lt,

-{Ju.

7 The other witness Mst. Shahida Bibi examined as PW-7 even if had come to the place of occurrence was quite late when this occurrence had already been taken place. In this respect N.w.b (0.8.) Hon bl. Mr.Justic. Moh.mmad lb.him ihan Hoi'bl.Mr lunice lshli.q lbEhim

under an admission PW-6 deposed in her cross- examlnatlon:-

QJq -,i, 5),,t ( $l 4,i, { I z)v tf otg :u- -r! $'i r,'i, gt rt,,' 791 a' fi t ri uaZ :? -G The statement of PW-7 would also be not believable for the reason that in the cross- examination she has stated that:- 4t ( y'.-,, t Ls if .- rtS,)P 47 g,.fi$ J a t5

tt ti l/,f -f/,itt,., ) L/ * i 1 r) L gi,el zv. /,i o t

-,? o,{',,t

8 While these extracts from cross- examinations of these important prosecution witnesses who are widows of the deceased particularly when PW-6 Mst. Nusrat Bibi has stated that she had followed her husband and the accused/Appellant to the place where the murder has taken place which is densely forest. Even while making report after long 5 hours it would t)- sufficient to observe with certainty that the s^ conduct of both these widows/prosecution witnesses is quite unnatural and this occuffence seems to be un-witnessed by anyone amongst these widows.

Nrwrb(0.B.)Bonbl.Mr.run'..Mohamm.dl6r.hinxhan Hoh bl€ Mr.Junice l.ht.qlb.ahim

9 It has been held in 2003 SCMR 1466 "Mst. Shumim und 2 oth ers vs the Stste and another" as under:

"proseculion story being foundation on which edifice of the prosecution case was raised occupied a pivotal position in a case, it should, therefore, stand to reason and must be natural, convincing and free from ony inherenl improbability and il was neilher safe to believe u prosecution slory which did not meet said requiremenls nor a ptosecution cose based on improbable story coultl sustain conviction," In another wisdom reported in 1999 SCMR 1220 "Muhammsd Khan and another vs The State". On appraisal of the evidence, the presence of the eyewitnesses at the spot at the relevant time and accompanied the deceased to the place of occurrence if create doubts it would b.g iven worth as "conviction must be based on g^ unimoeachable evidence and c ertainU and any do ubt arisins in the prosecution case must be resolved in favo ur ofthe accusedn.

A similar occurrence was reported in 2002 YLR 593 (Lahord "Mst. Sa fia vs The Staten, where conduct of the eyewitnesses at the N.w.b (o.B.) Hon bl. Mr. runi.. Moh.mm.d rbr.him xhan Hon 6l. Mr. Just,c. kht.qlbEhim

time of occurrence was unnatural and unbelievable benefit ofdoubt was extended to an accused and was acquitted accordingly. The Judgment of the Hon'ble Peshawar High Court Peshawar reported in 2002 P Cr. LJ 1914 (Peshuh'ar) "Mir Mat Khan alias Mutokui vs The Staten was also delivered in similar like circumstances, where appreciation of evidence would require thorough scrutiny particularly when interested evidence like here, the deceased widows statements are to be taken with great care and caution and these statements are to be scrutinized for its reliability.

Searching altogether similar type of case cited as 2002 P Cr. LJ 384 (Lahore) " Altaf and 4 others vs The State' is also considered where conduct of eyewitness is shown unnatural ,r)- and the story had been concocted in order to s- falsely implicate the accused in the case.

Occurrence has not occasioned as stated by the eye-witnesses. Ocular testimony was contradictory on material points. Medical evidence did not corroborate. Investigation in the N.wab (D.3 ) rion'bl€ Mr.ruttlc. Mohamm.d lb..him Kh.n Hon'ble Mr. J!51i.. khti.qlbnhim

case was not thoroughly made. Benefit of doubt was extended to the accused. In this case too, the occurrence seems to be un-witnessed as Mst. Nusrat Bibi has cited herself to be present at the spot where her husband was put to death while watching the fire shots attributed by the accused/Appellant which killed Alam Sher.

10.Where the medical evidence contradict these statements altogether, PW-9 Dr. Shah Kameen Khan Medical Officer has suggested entry wound on right side scalp and a large size exist wound on right side scalp. There is entry wound on right side chest. Exist on right side front of chest While 3rd entry wound on left side chest back. Exist on front of left side chest, therefore, there is also contradictory statement of PW-7 Mst. Shahida stating watching fire shots 20 i)- in number from such close range and it will bring this case under the shadow ofdoubt on this score too.

11.The site plan has shown panoramic view where the deceased has been put to death in a place which is densely forest surrounded by tall Nawab(D B.)Honble Mr.lunice Mohmmad bGhim Khan Ho^ ble Mr.luslic€ khtiaq lbr:him

trees,there is zigzag path and the sole eyewitness i.e. PW-6 Mst. Nusrat Bibi widow of deceased has been shown at such a distance from that angle, it is almost impossible to watch the occurrence, thereby it also becomes a ground that this occurrence has been un-witnessed and un- seen.

12.Now coming to the recovery of Kalashnikov alongwith live rounds allegedly recovered from accused/Appellant on 24.08.2013 upon his arrest and taken into possession vide recovery memo Ex. PW-5/1, suffice it to say, that bare perusal of the recovery memo by itself would reveal that how could the accused/Appellant has appeared so casually 1n front of the police officials duly armed with Kalashnikov which as per version of prosecution q.^ ,r/- has been used as weapon of offence in respect of murder of deceased. Even for the sake of arguments if the accused/Appellant may have committed the murder of deceased he would have definitely avoid the police party in such circumstances. Moreover, as per version of the Naw:b(DB)Honb.Mr lustkeMohamm.dlbrahm(h.n Hon be Mr.lustice thtLao bDh m

sole eyewitness of the occurrence PW-6 Mst.

Nusrat Bibi the accused/Appellant was arrested by the police from his house, whereas as per statements of the recovery witnesses the alleged recovery was effected from path known as 'Gham Said'. Though the FSL report has been fumished in positive but during cross-examination PW-3 Akbar Aman Constable (recovery witness) did not specifically mention the source of identification via which the accused/Appellant was apprehended duly armed with Kalashnikov during dark hours of the night. Thus, the mode and manner of the alleged recovery of Kalashnikov by all means is doubtful.

It is settled by now that the recovery of empties etc are always considered to be

I ,)--

f, corroborative piece of evidence and such kind of evidence by itself is not sufficient to bring home the charges against the accused especially when the other material put-forward by the prosecution in respect of guilt of the accused/Appellant has already been disbelieved.

N.w.b (0.0.) Hon bl€ Mr.Junic. Moh.mm.d rbr.him (h.n Hon ble Mr.l!sti.. kht.q lbr.him

It has been affirmed bv the Hon'ble Supreme Court of Pakistan in case aited as 2001 SCMR 424 " Imran Ashraf and 7 others vs the State" in the following manner:- "Recovery of incriminating articles is used for lhe purpose of providing corroboration to the ocular testimony, Ocular evidence and recoveries, lherefore, are to be considered simultaneously in order to reach for a just conclusion."

Likewise, if any other judgment is needed on the same analogy, reference can be placed on 2007 SCMR 1427 " Dr, Israr-ul-Haq vs Muhammad 7 and another wherein the relevant citation (c) enunciates:

"Direct evidence having failed, corroboralive evidence was of no help. When ocular evidence is disbelieved in a criminal case then the recovery of an incriminoting arlicle in the nalure t-- g^ of weapon of offence does not by itself prove the proseculion case.

13.The gist of the whole discussion is that the prosecution case against the accused/Appellant is pregnant with doubts. It is settled principle of law that in case of doubt, the benefit thereof must accrue in favour of the Na*.b (o.8.) Hon hl. Mr.l6lic. Moh.mm.d bEhimxhan Honbl.Mr Ju ic. hhli:o lbrahim

accused as a matter of right and not of grace. It was observed by the apex Court in the case of "Tari Peryez v. The State 1995 SCMR 1345 "that for sivins the bene lit of doubt it was not necessary that there should be many circumstances creatinp doubts" . If there ls circumstance which created reasonable doubt in a rudent mind about the ilt o the accuse then the accused would be entitled to the bene/it of doubt not as a matter of prace and concession but as a matter o_f right.

Similar citation of judgment 2008

SCMR I22l "Ghulum Oudir and 2 others vs the Stste" Supra enunciates:-

"BeneJit of doubt. Principle of applicability. For the purpose of benefit of doubt lo an accused, more than one f, infirmity is not required. Single infirmity creating reasonable doubt in the mind of a reasonable and prudent Person regarding the ttuth of charge, makes the whole case doubtful. "

14.In view of the above discussion, we are ofthe absolute view that the prosecution failed to N.w5b(D B )Hon ble Mr.Juilic. Moh,mmad Lbr.hih rftan Hon'bl. Mr.lu5li.. khii'q lbEhim

prove its case against the accused/Appellant beyond any shadow of doubt; therefore, his conviction cannot be maintained, ergo, while extending the benefit of doubt, we accept this appeal by setting aside his conviction and sentences recorded by the learned trial Court through the impugned judgment dated 05.05.2014 and acquit him of the charges leveled against him.

He be set free forthwith, if not required in any other case.

15.Similarly connected Criminal Revision bearing No. 32-M of 2014 filed for enhancement of the sentence by the complainant-party is also dismissed having become infructuous.

16.These are the detailed reasons for our short order of even date.

Announced. r- ,d- Dt: 07. I I .20 17 JUDGE

Thl Nawab(O.B )8on be Mr.Jlsti.e Moh.mmad lbrahim xhan Noh bl€ Mr.lustce khtaq br.him