Nasim Khan etc vs State.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.A. No.130-B/2011 Date of hearing: 27.05.2014

Appellant (s) : Nasim Khan & Wasim Khan by Mr. Khwaja Muhammad Khan Gara & Anwar-ul-Haq , Advocate.

Respondent(s) : State by Mr. Saif-ur-Rehman A.A.G. Respondent By Mr. M. Rasheed Khan Dirma Khel, Advocate.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- Appellants

(1)Nasim Khan and (2) Wasim Khan, were tried by learned Additional Sessions Judge-I, Bannu, and on conclusion of trial vide judgment dated 12.04.2011, each one of them was convicted and sentenced as under:-

Under section 302 (b)/34 P.P.C. To undergo imprisonment for life and to pay Rs.1,00,000/-, as compensation under section 544-A Cr.P.C. to LRs of deceased or in default thereof to under go 6 month S.I. each, further.

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Under Section 324/34 P.P.C. To undergo 03 years R.I. and to pay a fine of Rs.10,000/- each or in default thereof to undergo 02 months S.I. further.

Under Section 452/34 P.P.C. To undergo 02 years R.I. and to pay Rs.5000/- each or in default thereof to undergo 01 month S.I. further.

Benefit of section 382-B Cr.P.C. was extended to them.

2.Both the convicts have filed the instant appeal against their conviction and sentence while complainant Mir Payoo Khan has filed connected Cr.R. No.08-B/2011, titled, “Mir Payoo Khan Vs Nasim Khan etc” for enhancement of sentence of convicts. As both are arising out of the same judgment of the Trial Court, therefore, are going to be disposed of through this common judgment.

3.On 02.04.2009, Mir Payoo Khan

(PW.11), in company of dead body of his nephew *M.Siraj P.S. D

Amzar Ali Khan, at 1530 reported to Wali Ayaz Khan ASI (PW.7) on “Abshar Chowk” that on the fateful, after attending the marriage ceremony of one Shafi ur Rehman, he alongwith his nephews Amzar Ali Khan deceased and Idress Khan, was on the way to home, and when reached the Baithak of one Umarzad Khan, there accused Nasim Khan and Waseem Khan (appellants/convicts herein) duly armed with Kalashnikovs called upon them to stop;

that due to fear of the accused, he along with deceassed run and entered the house of Said Ali Khan while his other nephew Idrees Khan went from the spot; that the accused chased them, entered the house Said Ali Khan and opened fire at them with their respective weapons with intention to commit their murder, resultantly, Amzad Ali Khan was hit and died on the spot while he luckily escaped unhurt. Motive behind the occurrence is stated to be *M.Siraj P.S. D

an altercation inter-se the accused and his nephews some 2/3 days prior to the occurrence. Report of the complainant was reduced into writing in the shape of murasila Exh.PW.11/1, on the basis of which F.I.R No.63 dated 02.04.2009 was registered under sections 302/324/452/34 P.P.C at Police Station Basia Khel, District Bannu.

4.After arrest of the accused and

completion of investigation, challan was submitted against them before the Trial Court, where both were charge sheeted, to which they pleaded not guilty and claimed trial. To prove the guilt of accused, prosecution examined twelve witnesses.

After closure of the prosecution evidence, statement of accused were recorded under section 342 Cr.P.C.

wherein they denied the prosecution allegations and professed their innocence. They however, declined to be examined on oath under section 340 (2) Cr.P.C.

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or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced the appellants, as mentioned above.

5.Learned counsel for the appellants argued that the impugned judgment of the learned Trial Court is against the law and facts available on record, hence, not tenable; that prosecution evidence is shaky and scanty on the basis of which conviction cannot be recorded; that the story set forth by complainant does not appeal to a prudent mind; that Shafi ur Rehman in whose marriage the complainant and deceased participated, has has not been produced to prove the presence of complainant with the deceased; that none from the house of Said Ali has been produced; that when the accused were armed with deadly weapons there was no need to chase the complainant party as they *M.Siraj P.S. D

could target them from back; that on one hand, the Kalashnikovs allegedly recovered from the appellants have not been sent to the FSL for chemical analysis along with crime empties, while on the other hand, appellants have been acquitted by competent Court in the case registered under section 13 of the Arms Ordinance for said recovery;

that statements of PWs are suffering from material contradictions creating serious doubts in the prosecution case; that escape of the complainant who was in close proximity with the deceased and at the mercy of the accused is unbelievable; that medical evidence also negates the prosecution version wherein the injuries sustained by the deceased are some parallel, some from upwards to downwards and some from down to upwards. He vehemently argued that prosecution has miserably failed to bring home the guilt of appellants through *M.Siraj P.S. D

cogent and confidence inspiring evidence and the learned Trial Court by not appreciating the evidence in its true perspective has reached to erroneous conclusion by holding the appellants guilty of the offence, hence, the impugned judgment is liable to be set at naught.

6.Conversely, learned counsel for the complainant argued appellants are directly charged for the occurrence in a promptly lodged report; that eyewitness/complainant has furnished truthful account of the incident and has established his presence on the spot with the deceased at the time of incident; that defence has failed to create any dent in his testimony; that ocular account is further corroborated by medical evidence and recovery of crime empties from the spot as well as recovery of Kalashnikoves from the appellants coupled with blood from the spot and last worn bloodstained *M.Siraj P.S. D

clothes of the deceased. He went on to say that learned Trial Court has rightly held the appellants guilty of the offence but ought to have awarded them maximum punishment. He sought dismissal of the appeal and requested for enhancement of sentence of the appellants.

7.Learned A.A.G. adopted the arguments of learned counsel for complainant and supported the impugned judgment.

8.We have given our anxious

consideration to the respective arguments of learned counsel for the parties and perused the record with their able assistance.

9.According to complainant Payoo Khan (PW.11), on their return after participating in marriage ceremony of one Shafi ur Rehman, when they reached the Baithak of Umarzad Khan, they confronted with the accused, who call upon them to *M.Siraj P.S. D

stop but they due to fear run and entered the house of Said Ali. A look over the site plan Exh.PW.12/1, prepared at the pointation of complainant reveals that at points No.4 and 5 appellants have been shown in front of the Baithak. Similarly, deceased has been shown at point No.1, complainant at point No.2 and Idrees at point No.3 in the vacant plot/ground. Though the I.O. has not mentioned distance inter-se the places of accused and that of the complainant party, however, the inter-se distance has been clarified by complainant in his cross-examination by deposing that at the time when accused came out of the Baithak, they were at a distance of 5/6 paces from them. Perusal of site plan divulges that there no hurdle between the accused and complainant party, so if the accused had intention to commit the murder of the complainant party, they at the very first instance *M.Siraj P.S. D

could fired at them in the said vacant plot in front of Baithak being at a distance of 5/6 paces from them.

However, for the sake of arguments if we accept the stance of the complainant that they to save themselves started running and entered the house of Said Ali and the accused chased them, even then, we think that there was no need for the accused to entered the house, rather they could easily target them from the place they were standing because they were in close proximity, and that too, with automatic weapons i.e. Kalashnikovs. Thus, the story of the complainant is highly improbable. Again, if one accepts the version of complainant, then in case of chase after entering the house of Said Ali, the injuries on the person of the deceased should be on his back, but medical evidence i.e. autopsy report speaks otherwise. Dr. Qamar Zaman, who conducted autopsy on the dead body of the *M.Siraj P.S. D

deceased appeared as PW.1. In cross-examination he deposed that he found the entrance wounds on the person of deceased in different positions i.e.

some having exit parallel, some below upward and some above down wards. Thus, this statement of medical officer totally negates the complainant version because none of the accused has been shown in the site plan on height from the deceased or down from the place of the deceased to cause such like injuries.

10.Complainant Mir Payo Khan has been examined as PW.11. In his examination in chief he reiterated the contents of his report. In cross- examination he deposed that accused fired at them but when he took shelter he was not fired upon by the accused. Nothing like that has been mentioned by him in his report, which amounts to dishonest improvement just to make the story of his escape *M.Siraj P.S. D

believable. He while totally shattering the prosecution case further deposed that at the time of firing one of the accused was on one side of the deceased, and the other, on his other side, at a distance of 2 or 3 paces. If the deceased was in mid of the two accused from two sides at a distance of 2 or 3 paces, then both the accused were also in fire line of each other, in such situation they out to have also sustained firearm injuries from the firing of each other, secondly, the medical officer should have observed blackening or charring marks on the wounds of the deceased because 2 or 3 paces is shortest distance, in which some distance is covered while making firing by moving hands alongwith the gun towards extreme front of the target minimizing the distance inter-se the two. But no blackening or charring marks have been observed on the wounds of the deceased. Complainant further deposed that *M.Siraj P.S. D

he did not accompany the dead body of his nephew to the hospital from the place of his report rather his other nephew accompanied the dead body and he himself accompanied the Thanidar to the spot. This conduct of the complainant is also against the natural human conduct. Besides, this stance of complainant is denied by Inayatullah Khan S.I.

(PW.12) who conducted investigation in the case. He deposed that when he reached the spot he summoned complainant and eyewitness to the spot.

According to PW.12, he did not observe/notice any bullet marks on the walls of house in fire line, where the occurrence took place. The escape of complainant or his let off by the accused, who was at their mercy, is unbelievable, because in such like sitaution no assailant would take a risk to leave an eyewitness who is none else but real uncle of the deceased so as to diminish the evidence.

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11.Moreover, said Shafi ur Rehman from whose marriage ceremony the complainant party was returning home has not been produced nor any marriage card has been brought on record to establish the complainant his presence with the deceased. Similarly, none from the house of Said Ali has been examined who could depose about presence of the complainant on the spot. The peculiar facts and circumstances of the case coupled with contradictory and untrustworthy testimony of complainant which does not find corroboration from medical or any other independent evidence, we are of the firm view that the occurrence has not taken place in the mode and manner as alleged by complainant, rather in some other mode, which is shrouded in mystery, but one fact is established that complainant was not present with the deceased at the time of incident. No doubt, the murder of the *M.Siraj P.S. D

deceased on the spot with fire arm cannot be denied, but by whom? shrouded in mystery and no shred of evidence whatsoever has been brought on record to saddle the appellants for the said murder.

12.No doubt, crime empties have been recovered from the spot and recovery of Kalashnikovs have been shown from the appellants but these empties and Kalashnikovs have not been sent to the FSL so as to determine that whether these have been fired from the recovered Kalashnikovs or otherwise. So this piece of evidence would not be sufficient to prove the guilt of the accused as it was stated at the bar that the appellants have been acquitted in the case registered under section 13 of the Arms Ordinance for recovery of said Kalashnikov. Moreover, mere recovery of crime empties cannot be a substitute of direct evidence. Rather, such like pieces of evidence *M.Siraj P.S. D

are considered as corroborative pieces of evidence which is taken into consideration alongwith direct evidence. No doubt, bloodstained earth from the place of deceased and his bloodstained garments have been taken into possession by the I.O. during investigation and sent to the FSL for chemical analysis, report whereof is shows that the same is a human blood and of the same group, but these pieces of evidence could only advance the case of the prosecution only up to the extent that deceased was done to death with firearm on that particular place/spot, but by whom, these pieces of evidence in absence of direct evidence, would not be sufficient to prove that those were the appellants who committed the said murder, as these are only corroborative pieces of evidence. Guidance may be derived from Riaz Ahmed’s case (2010 SCMR 846).

As per the dictum of the apex Court, corroborative *M.Siraj P.S. D

evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. Wisdom in this regard may be derived from Ijaz Ahmed’s case (1997 SCMR 1279 and Asadullah’s case (PLD 1971 SC 541). It has been held by the apex Court in case titled, “Saifullah Vs the State” (1985 SCMR 410), that when there is no eyewitness to be relied upon, then there is nothing, which can be corroborated by the recovery. Similarly, in case titled, “Riaz Masih Vs the State” 1995 SCMR 1730, the honourable apex Court held that recovery of crime weapon by itself is not sufficient for conviction on murder charge. In case of Siraj Vs Crown (PLD 1956 Federal Court 123), it has been held that recovery of handle of blood- stained hatchet at the instance of the accused, when other evidence was disbelieved, then it was not enough for conviction. The same view has been *M.Siraj P.S. D

expressed by the apex Court in Saifullah’s case

(1985 SCMR 410).

13.The crux of the above discussion is that prosecution has miserably failed to bring home the guilt of appellants through cogent and confidence inspiring evidence beyond shadow of doubt rather the prosecution evidence is pregnant of doubts, pricking the judicial mind, benefit of which is to be extended to the appellants keeping in view the cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right.

Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that “it would be better to acquit hundred culprits than *M.Siraj P.S. D

convicting one innocent soul.” Which has now been transformed into the form of the principle that, “acquitting by error would be better than convicting by error”. The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice.

14.The learned Trial Court by not

appreciating the evidence in its true perspective reached to a wrong conclusion by holding the appellants guilty of the offence, hence, the impugned judgment being not sustainable in the eye of law is set aside. Resultantly, this appeal was allowed. These are the reasons of our short order of even date, which is reproduced below:- For reasons to be recorded later, we allow this appeal, set-aside the

conviction and sentence of

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appellants/convicts Nasim Khan and Wasim Khan, recorded by trial Court/Additional Sessions Judge-I, Bannu vide impugned judgment dated 12.04.2011 and hereby acquit them in case F.I.R No.63 dated 02.04.2009, registered under sections

302/324/452/34 P.P.C. at Police Station Basia Khel Bannu. They be set at liberty forthwith, if not required in any other case. On acquittal of the appellants, connected Cr.R. No.8-B/2011, has become infructuous, which stands dismissed as such.

Announced.

JUDGE

JUDGE

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