Amir Memood Vs The State and another

JUDGMENT SHEET

IN THE PESHAWAR HIGII COURT,

BANNU BENCH

(Judicial Department)

Cr.A.No.132-812022

Amir Mehmood

Versus

The State and another

JUDGMENT

For appellant: IWS Qaidullah Khan Khattak and QaiserRahim, Advocates.

For respondents: Mr. Saif-ur-Rahman Khattak, Addl: A.G. for State.

Muhammad Rashid Khan Dirmakhel, Advocate for respondent No.2.

Date of hearing: 21.02.2023.

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5 SHAHID KHAI\ J.- Through captioned -t appeal, Amir Mehmood, hereinafter, the appellant/accused, has called in question legality & validity of his conviction through the judgment, dated, 15.7.2022, of learned Additional Sessions Judge, Banda Daud Shah, Karak, whereby, on conclusion of trial, in case FIR No.l09, dated,23.ll .2018, under Sections 302/324 PPC, of police station Khurram, Banda Daud Shah, Karak, recorded his conviction

under Sections 302(b) PPC and sentenced him for life imprisonment with compensation of Rs.5,00,000/- under Section 544-4 Cr.PC, or in default thereof to further undergo six months simple imprisonment. He was further convicted & sentenced under Section 324 PPC for five years imprisonment with fine in the sum of Rs.50,000/-, or in default thereof to further undergo simple imprisonment for six months.

Both the sentences shall run concurrently. However, benefit of Section 382-8 Cr.PC was extended accordingly.

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The complainant has also filed

Cr.Rev.No.43 -812022 for enhancement of sentence of the appellant and the amount of compensation under Section 544-4 Cr.PC, both these matters, being the outcome of one and same trial, therefore, are to be disposed of by way of this single judgment.

3 The prosecution's case, as set forth in the crime report, is that on the fateful date, day & time (23.11.2018 at about ll00 hours), complainant Mst. Kausar Parveen, in the company of her son Shaheed-ur-Rahman and co-

villagers, brought the dead body ofher father-in- law Aziz-ur-Rahman, in a Pick-up, to the police station Khurram, Karak and reported the matter to the effect that on the eventful day, she with her son Shaheed-ur-Rahman and deceased father-in-law were irrigating their fields. At about 0945 hours, appellant/accused Amir Mehmood, equipped with firearm, came there and started firing at them with intention to commit their Qatl-e-Amd, as a result of it, Aziz- ur-Rahman got hit and died on the spot, whereas, the complainant and her son, luckily, escaped unhut. After the occurrence, the appellanU dld accused fled away. Motive for the occurrence is -Y alleged to be nonpayment ofdebt ofthe shop.

4.On completion of the investigation, challan was drawn within the meaning of Section 173 Cr.PC and after doing the needful, it was sent up to the Court of competent jurisdiction for trial accordingly.

5 On commencement of trial, copies of the evidence (oral and documentary) were delivered to the appellant/accused within the meaning of Section 265-C Cr.PC, followed by,

confronted him with the set of allegations through a formal charge. He denied the subject allegations, pleaded not guilty and claimed trial.

6 The prosecution, to bring home

charge against the appellant/accused, produced twelve (12) witnesses to substantiate its version.

At the closure of the prosecution's account, the appellant/accused was confronted with the evidence so fumished through formal questionnaires within the meaning of Section 342 Cr.PC, to which he professed innocence and claimed to have been falsely implicated in the AP subject case. However, he neither wished to be examined on Oath as required under Section 3a0(2) Cr.PC nor intended to produce evidence in defence. On conclusion of trial, scanning of record with due assistance of learned counsel for the parties and leamed prosecutor, the leamed trial Court/Additional Sessions Judge, Banda Daud Shah, Karak, arrived at the conclusion that the prosecution has successfully proved its case against the appellant/accused without any shadow of doubt, hence, vide impugned

judgment, dated, 15.7.2022, recorded his conviction, as referred to above.

7 We have heard the arguments of the leamed counsel for the parties as well as leamed Addl: A.G. representing the State and have gone through the record ofthe case.

E. It is an established principle oflaw that each & every criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features. Admittedly, it is an unfortunate incident in which father-in-law of the complainant, namely, Aziz-ur-Rahman lost his life after sustaining firearm injuries but to put the facts and circumstances in equilibrium with the touchstone of safe administration of justice, the Court has scrutinized the entire evidence made available on record while weighing the same on judicial parlance. It has been observed by the Court that the prosecution has led evidence in the shape of ocular, medical & circumstantial evidence, as well as investigation besides other attending circumstances.

9 The ocular account is consisted of the statements of the complainant, Mst. Kausar Parveen (PW-7) and Shaheed-ur-Rahman (PW- 8). According to the aforesaid PWs of the ocular account, the appellant/accused duly equipped with firearm made firing at them, as a result of it, the deceased Aziz-ur-Rahman got hit and died on the spot.

10.PW-7 & PW-8 closely related to the deceased Aziz-ur-Rahman, as PW-7 is her daughter-in-law and PW-8 is his grandson, therefore, their evidence has to be appreciated with due care & caution. No doubt, the evidence of the closed related witnesses cannot be discarded on the mere ground of their relation with the victim but if, it is found that testimony of the related witnesses do not hnd corroboration from attending circumstances of the event or the conduct & demeanor demonstrated by them at the time of occurrence or just thereafter, as such, the same shall not be expected from a prudent person, then under such circumstances the evidence furnished by related witnesses is hard to be

accepted. At the touchstone of the above, we now take into consideration the testimony fumished by the prosecution consists of the

PW-7 & PW-S.

ll. The presence of PW-7 & PW-8 is doubtful at the place of occurrence. The alleged occunence took place on 23. I I .20 I 8 at 0945 hours, the in between distance of the place of occunence and the police station Khurram, Karak is about 10/12 kilometers, whereas, the FIR has been lodged on the same day at I100 hours, i.e. after a delay of one hour and fifteen minutes. On this score alone, strong { presumption can no way be ruled out regarding the element of consultation and deliberation.

12.PW-8 stated that he and his mother (PW-7) reached first to the deceased after the accused decamped. PW-3 reduced the report of the complainant (PW-7) in the shape of FIR Ex.PW-3/I, duly verified by PW-8. He also prepared injury sheet Ex.PW-3/2 and inquest report Ex.PW-3/3. Admittedly, PW-7 and PW- 8 are not the identifiers ofthe dead body ofthe deceased before the local police as well as

before the doctor, rather it was identified by PW-4 Azizullah, Musadiq ur Rahman and Aziz-ur-Rahman son of Abdur Rahman, ironically, the subject witnesses other than Azizullah have not been produced. Admittedly, PW-4, Musadiq ur Rahman ard Aziz-ur- Rahman son of Abdur Rahman are not the eyewitnesses of the occurrence. Similarly, PW- 7 & PW-8 on their tum stated in their respective statements that after lodging the report in the police station they proceeded to their house, whereas, the deceased was taken to (-, S the hospital. PW-7 stated that due to grief she ry had not counted the number of fire shots made by the accused upon them. The caliber of weapon is also not mentioned in the FIR. PW-8 stated in his examination-in-cross that the accused was armed with Kalashnikov and he was acquainted with the same. He stated that the report was read over to him but he had not disclosed to the police that the accused was armed with Kalashnikov. Non disclosure of kind and bore of the weapon used in the commission of the offence despite the fact that PW-8 could identifu the arms with its bores is

a strong circumstance which makes his presence at the fateful time on the scene of occurrence is highly doubtful.

13.Per statements of PW-7 & PW-8, Musadiq and Abdul Nawaz attracted to the spot after 617 minutes of the occurrence and thereafter many others also attracted to the spot.

Musadiq arranged the cot and the dead body of the deceased was shifted to the police station in vehicle of Idrees by PW-7, PW-8, Musadiq, Azianllah and Abdul Nawaz. However, the g Idrees, driver of the vehicle, Musadiq and Abdul Nawaz have not been produced as witnesses during the trial. Ii they could fumish their account it would have strengthened the case of the prosecution; but not to produce them as prosecution witnesses, it has adversely affected its case in view of the provisions of Article 129, Illustration (g) of Qanun-e-Shahadat Order, 1984. It is now settled law not to produce material witnesses, an inference can be drawn that had they stepped into the witness box, they would have not supported the prosecution's case. The Hon'ble Supreme Court of Pakistan in

the case of "Muhammad Rafique and others v.

State and others" (20f0 SCMR 38$ held as under:-

"that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(9) of Qanun-e-Shahadat Order can fairly be drawn that ifPW would have been examined, his evidence would have been unfavourable to the prosecution".

14.Similarly, due particulars of the vehicle, as its registration number, kind & type, colour etc, are neither put & parcel of the investigation nor that of the trial. While proceeding to the police station, it has been fairly conceded that the blood of the deceased was oozing in the vehicle but strangely enough, the subject circumstantial evidence is not part & parcel ofthe investigation followed by the trial.

The Investigation Officer for the reasons best known to him has not collected the signs and symptoms of the subject circumstantial evidence from the rear portion of the vehicle through which the victim was shifted to the police station. The doctor (PW-l) stated in his

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examination-in-cross that according to his report, the injury sheet, postmortem report and bloodstained garments of the deceased were handed over to the police on29.11.2018. PW-12 escorted the dead body to the hospital on 23.11.2018. He pointed out in his examination- in-cross that on the same day the bloodstained garments and post-mortem documents, etc were handed over to him and he further delivered the same to the I.O at about 03:30 hours. Similar is the statement of PW-l who is marginal witness of recovery memo Ex.PW-1/1.

15.Weapon of offence i.e. Kalashnikov ed has been recovered on the pointation of the appellant/accused from his house vide recovery memo Ex.PW-2l9.Ir was sent to the FSL with previously recovered four crime empties of 7.62 bore and in this regard, the report Ex.PW-2/12 shows that the crime empties were fired from the same local made 7.62 bore rifle (smg). However, the prosecution has not complied the requirements of Section 103 Cr.P.C as the alleged Kalashnikov was recovered from the house of the appellant/accused, but no

independent witness was associated with the process of recovery and even lady constable was not associated for the subject purpose in order to respect the sanctity of chaddar & chardewari, as such, the recovery of the weapon of offence so alleged and presented by the prosecution IS prima facie tainted with doubts.

16.Other than the above, the alleged recovered weapon of offence has not been substantiated to be registered with the quarter concemed in the name of the appellant/accused and no pain, whatsoever, has been taken to confirm the factum of its ownership, therefore, irs the possibility to plant the subject weapon against the appellant/accused can no way be ruled out. Besides, in case titled, "Saifullah v.

The State" 1985 SCMR 410 it has been ruled by the Hon'ble Supreme Court thaf- "When there is no eye-witness to be relied upon, then there is nothing, which can be corroborated by the recovery".

17.The nonpayment of debt has been alleged as motive for the occurrence in respect of a grocery shop. However, the I.O (PW-9)

stated in his examination-in-cross that the complainant party has neither produced the debt register nor he asked about it during his investigation, therefore, it could safely be concluded that prosecution could not be able to prove the motive part of the story. The prosecution is not bound to setup motive in each & every case but once, it is alleged and not proved, then the ocular account is required to be scrutinized with due care & caution. It has been held in the case titled "Hukim Ali Vs.

The State" t97t scMR 132 that the prosecution though not called upon to establish motive in every case, yet once it has setup a motive and failed to establish, the prosecution must suffer consequences and not the defence.

18.The medical evidence can no way pin point the accused nor can establish the identity of the accused. It is hard fact that medical evidence can never be considered to be a corroborative piece of evidence and at the most can be considered a supporting evidence only to the extent of specification of seat of injuries, the weapon of offence, dulation, the cause of death

etc. "Muhammad Manshu Vs. The State" (NB SCMR 7721.'Tor iq Hussoin ond another Vs.

The Slate and 04 others" (2018 MLD 1573 IFederal Shariat Cpu rtl).

19.So far as abscondence of the appellant/accused is concerned, it is common culture and tradition even in this part of country that after a person is nominated as an accused in a criminal case, irrespective of the factum to has been nominated falsely or truly, not only the nominated person even his other family members, disappear fron.r the scene and avoid to appear till the patience, cooling period for the reason as not to be talgeted by the members of the bereavecl farnily. Other than it, time and again, it is scttlcd law that conviction on abscondence alone cannot be sustained. Reliance placed on "Amir G ul Vs. the Stale"

(1981 SCMR 182).

20.It is well settled law that accused person is presumed to be innocent till the time he is proved guilty beyond reasonable doubt and this presumption ol' innocence continued until the prosecution succeeded in proving the

charge against the accused beyond reasonable doubt on the basis of legally admissible, confidence inspiring, trustworthy and reliable evidence. In the instant case, the prosecution has failed to prove the guilt of the appellant through the above standard ofevidence.

21.Crux of the above discussion is that the prosecution has rniserably failed to bring home guilt of the appellant through cogent and confidence inspiring direct or circumstantial cvidence beyorrd shadow of reasonable doubt. The prosecution's evidence is pregnant witlr doubts and according to

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golden principlc of benefit of doubt; one substantial doubt is enough ftrl acquittal of the accused. Reliance p laced oll case titled, "Muhammal Zutttutt t,. Tlte Stule and others"

2014 SCMR 7J9

22.There is no second opinion about the fact that the elemental principle of justice always laid emphasis on the quality of evidence which must be of first degree and sufficient enough to dispel thc apprehension of the Court with regard to the irrplication of the innocent

persons alongwith guilty one by the prosecution, otherwise, the golden plinciple of justice would come into play that even a single doubt, if, found reasonable worrld bc sufllcient to record acquittal of the accrrserl, giving hlrn/them benefit of doubt becarrsc bundle ol cloubts are not required at all to exterrd the lcgal benefit to the accused. In this rcgalcl, rcliance is placed on a view held by thc Ilon'lrle Sr.rprcnrc Court in the case of "Riaz \I:rsilr alirrs NTitlroo Vs. State LR 1995 Cr.SC 69.1 ).

23, For the afole-stated reasons, the accepted, the impugned 9o' subject appeal IS

f judgment, dated, 15.7.2022, of leamed trial CourVAdditional Sessiorrs Judge, Banda Daud Shah, Karak is set asiile and the appellant/ accused Amir Melrnroocl is accyLritted of the charges levellcd againsl hinr by extending the benefit of dou[.,t. Ilc bc set tlcc lirrthwith, if not required, in any othcr casc

24.Since thc impugned judgment regarding conviction ol thc appellanUaccused has been set asidc, the-refore, connected Cr.Rev.No.43-R/2021 lbl enlrrnce'ment of his

sentence has bccorle inll r"rctuor.rs and dismissed as such.

25.By our short order ol even date, we had accepted the appeal ol thc rrppellant Amir Mehmood and acquitted hinr ol the charges levelled against him. Ileleinairovc are reasons for the same.

Announced.

Dt:2 1.02.202 3

JUDGE

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