Abdur Razaq vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.A. No.154-B/2011 Date of hearing: 19.06.2014.

Appellant (s) : Abdul Razzaq S/o Miras Khan by Mr. M. Alamgir Wazir, Advocate.

Respondent(s) : State by Sairf-ur-Rehman, A.A.G.

Respondent by Mr. Anwar-ul-Haq, Advocate.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This common judgment shall dispose of the instant criminal appeal, filed by appellant Abdur Razaq against the judgment dated 05.04.2011 whereby he was convicted under section 302 (b) P.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- to LRs of deceased, as compensation within the meaning of section 544-A Cr.P.C. or in default thereof to undergo 6 months S.I.

further, in case F.I.R No.258 dated 12.06.2009 registered under sections 302/324/34 P.P.C., Cr.R.

*M.Siraj P.S. D

No.05-B/2011, filed by petitioner-complainant Muhammad Hanif for enhancement of sentence of convict from life imprisonment to death, Cr.R.

No.18-B/2011, filed by petitioners Muhammad Hanif and Yousaf Khan seeking reversal of the findings of the Trial Court to the extent of deletion of section 324 P.P.C. and Cr.A. No.141-B/2011, filed by appellant Muhammad Hanif against acquittal of accused/respondent Miras Khan, as all are the out come of the same judgment of the learned Trial Court, referred above.

2.The prosecution case is that on

12.06.2009 at 11.00 a.m. complainant Muhammad Hanif (PW.8), in company of dead body of his brother Rehmat Ullah, reported to Ghulam Muhammad ASI (PW.11), in emergency room of civil hospital Naurang Lakki Marwat that on the fateful day, he, his deceased brother and Yousaf Khan *M.Siraj P.S. D

(PW.9), was sitting near a Tube-well of their village Nali Chak. At 10.00 a.m accused Miras Khan, duly armed with “Dasguzar” 7.62 bore rifle, Wahid Ullah and Abdur Razaq, armed with mark-IV rifle and Kalashnikov, respectively, sons of Miras Khan, came there. Accused Miras Khan ordered his sons/co- accused to kill, on which, accused Wahid Ullah and Abdur Razaq opened fire at them with intention to commit their Qatl-e-Amd, resultantly, his brother Rehmat Ulalh was hit and fell on the ground while he and PW Yousaf Khan luckily remained unhurt. After the occurrence the accused run from the spot. The injured succumbed to the injuries on the way when he was being shifted to hospital. Motive behind the occurrence is stated to be a dispute over the said Tube-Well. Report of the complainant was reduced in to writing in the shape of murasila Exh.PA, on the basis of which F.I.R mentioned above was registered.

*M.Siraj P.S. D

3.Initially challan under section 512 Cr.P.C. was submitted against all the accused. Later on, accused-appellant Abdur Razaq and accused Miras Khan were arrested. On completion of investigation, supplementary challan was submitted against them before the learned Trial Court, where they were formally charge sheeted to which they pleaded not guilty and claimed trial. To prove their guilt, prosecution examined as many as fourteen witnesses. After closure of the prosecution evidence, statements 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. or to produce evidence in defence. On conclusion of trial, the learned Trial Court, after hearing both the sides, convicted and sentenced appellant Abdur Razaq under section 302 *M.Siraj P.S. D

(b)P.P.C. as mentioned above, however, acquitted co-accused Miras Khan.

4.Learned counsel for the appellant argued that conviction and sentence of the appellant recorded by learned Trial Court is the result of misreading and non-reading of evidence; that ocular account furnished by interested witnesses is suffering from material contradictions and discrepancies creating serious doubts in the prosecution case; that let off the alleged eyewitnesses by the accused who at their mercy and their escape from the alleged firing of the accused, when they were in close proximity of the deceased is disturb a prudent mind; that medical evidence does not support the prosecution version where dimension of entrance wounds is one and the same indicating the occurrence to be the job of single person; that neither any crime empty nor weapon of *M.Siraj P.S. D

offence has been recovered or sent to the FSL; that testimony of the alleged eyewitnesses and I.O. are in contradictions on material proceedings conducted on the spot; that both the alleged eyewitnesses have failed to established their presence on the spot, hence, their testimony cannot be believed and relied upon. He went on to say that accused Miras Khan has not been attributed any role of firing by the complainant, who is a man of advance age nor the prosecution has proved his common intention through cogent and confidence inspiring evidence, hence, he has rightly been acquitted by Trial Court;

that prosecution case is pregnant of doubts, benefit of which is to be extended to appellant/convict and he be acquitted.

5.Conversely, learned counsel

complainant contended that accused are directly charged for committing murder of the deceased *M.Siraj P.S. D

along with their absconding co-accused; that complainant and PW Yousaf Khan have furnished true account of the occurrence and their testimony finds corroboration from medical evidence as well as circumstantial evidence; that both the accused remained fugitive from law for noticeable period and were declared Proclaimed Offenders, which prove their guilty conscious. He argued that the learned Trial Court has rightly held the appellant-convict as guilt of the offence and he was liable to the maximum punishment. He contended that prosecution has also proved the guilt of acquitted co-accused Miras Khan because on his command the occurrence was initiated by his sons/co-accused, as such he also sought his conviction. He lastly argued that prosecution has brought cogent and confidence inspiring evidence that the accused have also attempted at the lives of the PWs, therefore, *M.Siraj P.S. D

findings of the Trial Court qua section 324 P.P.C. are liable to be set at naught.

6.Learned A.A.G. adopted the arguments of learned counsel for the complainant.

7.We have considered the respective

submissions of learned counsel for the parties and perused the record with their able assistance.

8.In this case the occurrence allegedly took place on 12.06.2009 at 10.00 a.m. which has been reported at 11.00 a.m. in civil hospital Naurang by complainant Muhammad Hanif (PW.8) wherein PW Yousaf Khan is also cited as eyewitness of the incident. Both have furnished the ocular account of the incident. Both of them are closely related to the deceased. No doubt, conviction can be recorded on the basis of testimony of interested and close relative of the deceased provided their testimony is trustworthy, confidence inspiring and find *M.Siraj P.S. D

corroboration from other strong pieces of evidence.

Thus, taking the testimony of the alleged eyewitnesses at the touch stone of said principle, we have to evaluated their evidence.

9.In his report, complainant Muhammad Hanif categorically stated that the moment they shifted the deceased to hospital, he succumbed to the injuries there, but in cross-examination he deposed that deceased then injured Rehmat Ullah died on the way to hospital. He further deposed that they reached hospital at about 11.00 a.m/11.05 a.m.

and after 10/13 minutes of their arrival, police reached there and similarly doctor also came. He while contradicting his own stance further says that he made report at 11.00 a.m. Here question arises that when complainant reached hospital at 11.00 or 11.05 a.m. and after 10/13 minutes the police reached hospital, how he made report at 11.00 a.m.

*M.Siraj P.S. D

The time of arrival of the complainant to hospital is further contradicted by Ghulam Muhammad S.H.O.

(PW.5), who drafted murasila report. In cross- examination he deposed that at about 10.30 a.m. he received information through Moharrir in Police Station about arrival of dead body to the hospital, meaning thereby that the dead body was there in the hospital at 10.30 a.m. Again according to another eyewitness Yousaf they shifted the deceased and reached hospital at 10.45 a.m. All the three PWs have given different timings about their arrival to hospital, making the report doubtful.

10.General role of firing has been attributed to two accused by the complainant and PW Yousaf Khan, but complainant making dishonest improvements in his Court statement, in cross- examination deposed that accused Abdur Razaq fired three shots in single form while accused *M.Siraj P.S. D

Waheed Khan fired four shots at them from a distance of 8 to 10 paces. Perusal of site plan Exh.PW.14/1 shows that both the eyewitnesses are in close proximity with the deceased at point No.1 and point No.3 whereas at point No.2 the deceased has been shown, but none of the PWs has sustained any firearm injury, which does not appeal to a prudent mind because keeping points of their presence as shown in the site plan in juxtaposition with the points of presence of accused, they both fall in direct fire line of accused shown at points No.4, 5 and 6. It is not the case of the prosecution that the eyewitnesses at the time of firing took shelter some where. Moreover, it also disturbs a prudent mind that when the accused had common motive with the deceased and eyewitnesses, why the deceased was chosen and the PWs were let off despite that they were at the mercy of the accused armed with deadly *M.Siraj P.S. D

weapons. Both the PWs have admitted existence of a wall at their back on the spot but no bullet or pellet has been recovered from the said wall. None of the two alleged eyewitnesses have produced their clothes smeared with the blood of the deceased as they would have picked up the deceased while shifting him to the hospital, which were important piece of evidence to establish their presence with the deceased on the spot. Similarly, both are consistent on the point of shifting of deceased then injured in a Rickshaw, but the said Rickshaw driver has not been produced to establish their presence on the spot. Inquest report does not bear names of both these eyewitnesses as identifiers of the dead body. Rather, one Ghulam Farid and Muhammad Younas have been mentioned as identifiers of the dead body. Had they been present with the deceased the medical officer would have mentioned *M.Siraj P.S. D

their names as identifiers of the dead body. All these peculiar facts and circumstances of the case make presence of the alleged eyewitness highly doubtful.

11.Both the alleged eyewitnesses as well as Bashir Khan I.O. have also contradicted each other on material aspects of investigation on the spot.

According to complainant Muhammad Hanif on his arrival to his house from the hospital, the police summoned him to the spot where he pointed out place of occurrence. He deposed that preparation of site plan started at about 1.00 p.m and took 30 to 35 minutes. He further deposed that I.O. remained on the spot for about 30/35 minutes and thereafter left the spot. As against that, Yousaf Khan (PW.9) says that preparation of site plan took about one hour and he remained on the spot with the I.O. for one hour. While contradicting both the alleged eyewitnesses, Bashir Khan I.O. (PW.14) deposed that *M.Siraj P.S. D

he remained on the spot for 4/5 hours. The statement of complainant that they were summoned to the spot by the I.O. is negated by Hassan Khan HC, marginal witness to recovery memo Exh.PW.1/1 vide which bloodstained earth was secured from the spot and recovery memo Exh.PW.1/2 vide which the last worn bloodstained clothes of the deceased were taken into possession by the I.O. In cross examination he deposed that when they reached spot, PWs Muhammad Hanif and Yousaf Khan were already present there. He further deposed that they remained on the spot till 5.00 p.m and the bloodstained garments of the deceased were brought and handed over to Bashir Khan SI on the spot at 4.00 pm. Again the stance of this PW is contradicted by Nisamatullah FC (PW.3), who escorted the dead body of the deceased. He deposed that after post mortem examination the *M.Siraj P.S. D

medical Officer handed him over post mortem documents and bloodstained garments of the deceased which he produced before Bashir Khan S.I.

in police Station. These contradictory versions regarding same facts make the reliability and credibility of witnesses highly doubtful.

12.Autopsy report of the deceased reveals that he sustained two entrance wounds having same dimension i.e. 1⁄4 “ x 1⁄4 “. According to medical Officer (PW.7) the entrance wound on back in the right lumber caused the death of the deceased while so far the remaining wounds are concerned, these were simple in nature which cannot become the cause of death. No crime empty has been recovered from the spot. It is not the case of the prosecution that some body interfered with the spot after the occurrence.

No crime weapon has been recovered from direct or indirect possession of the accused. The dimension of *M.Siraj P.S. D

entrance wounds on the person of the deceased in absence of recovery of crime empties and FSL report qua the same, strongly indicates the occurrence to be the doing of a single person. The prosecution has miserably failed to prove the occurrence to have taken place in the mode and manner as alleged by the complainant and PW Yousaf. Rather, the peculiar facts and circumstances of the case strongly reveals that deceased had been done to death by single person with fire arm but not in presence of the alleged eyewitnesses. Complainant is the brother of deceased and he in his cross-examination admitted existence of his house near the tube well. So probably he was informed in his house by some one else about the occurrence whereafter he and PW Yousaf Khan would have attracted to the spot, but this fact is fully established from the evidence *M.Siraj P.S. D

available on record that both the PWs have not witnessed the incident.

13.So far as abscondence of the appellant is concerned. He has denied the same in his statement under section 342 Cr.P.C. It is settled law that abscondence alone, cannot be a substitute for real evidence. It has been observed by the apex Court in Farman Ali and others’ case (PLD 1980 SC

201)that abscondence by itself would be of no avail to prosecution in absence of any other evidence against the absconding accused. Mere abscondence of accused would not be enough to sustain his conviction. Wisdom in this regard may be derived from case titled, “Muhammad Vs Pesham Khan (1986 SCMR 823). Since there is no credible evidence to support the prosecution version, so abscondence, itself, would not be sufficient to prove the guilt of the accused. According to golden *M.Siraj P.S. D

principle of benefit of doubt, one substantial doubt is enough for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that “it would be better to acquit hundred culprits than 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. In the instant case, the prosecution evidence is highly discrepant, full of infirmities and doubts.

The learned trial Court has not evaluated the evidence in its true perspective thus reached to an erroneous conclusion by holding the appellant guilty of the offence, therefore, the impugned conviction is not sustainable. Resultantly, this appeal was *M.Siraj P.S. D

allowed. Convection and sentence of the appellant were set aside and he was acquitted of the charge while connected criminal revision petitions were dismissed and similarly, appeal against acquittal of accused Miras Khan was also dismissed.

14.These are the reasons of our short order of even date, which is reproduced below:- “For reasons to be record later, we allow this appeal set-aside the

conviction and sentence of the

appellant Abdur Razaq, recorded

vide impugned judgment dated

05.04.2011, passed by learned

Additional Sessions Judge Lakki

Marwat, in case F.I.R No.258 dated 12.06.2009, registered under

sections 302/324/34 P.P.C. at Police Station Naurang Lakki and hereby

*M.Siraj P.S. D

acquit him of the charge in the aforesaid case. He be set at liberty forthwith, if not required in any other case. On acquittal of the convict, connected Cr.R. No.18- B/2011, Cr.R. No.05-B/2011, have become infructuous, which stands dismissed as such. Similarly, Cr.A.

No.141-B/2011, is also dismissed.

Announced.

JUDGE

JUDGE

*M.Siraj P.S. D

*M.Siraj P.S. D