Nadeem vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department) Cr.A. No.202-P/2012

Date of hearing: 30.10.2014

Appellant (s) : Nadeem by Amin ur Rehman, Advocate.

Respondent(s) :Complainant by Mr. Kifayat Ullah Khan, Advocate, and the State by Mian Arshad Jan AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This criminal appeal, calls in question the legality and propriety of judgment dated 20.03.2012, rendered by learned Additional Sessions Judge-VII, Mardan, whereby appellant Nadeem, has been convicted under section 302 (b) PPC and sentenced to undergo life imprisonment on four counts and to pay an amount of Rs.4,00,000/- to LRs of four deceased, as compensation within the meaning of section 544-A Cr.P.C.. He has been further convicted under section 449 PPC and sentenced to undergo 10 years rigorous imprisonment and to pay *M.Siraj Afridi P.S. D

a fine of Rs.50,000/- or in default thereof to undergo 06 months S.I. Benefit of section 382-B Cr.P.C. has been extended to him. The sentences have been directed to run consecutively.

2.The prosecution case is that on

15.12.2008 at 09.15 hours, complainant Fazal Karim (PW.10), in company of one Ghani Akbar, reported to Daud Khan S.I. (PW.13) on the spot, that on the previous night he had gone to Mardan to inquire about his ailing daughter; that on the fateful day, on receipt of information by his grandson Zia Ullah via telephone about murder of Baz Gul, his son-in- law, daughter Mst. Roshanda (wife of deceased Baz Gul), granddaughter Mst. Iqra and one Juhar, by someone, rushed to the spot where he found the above persons murdered; that he is satisfied one Nadeem (appellant-convict herein) has done to death the deceased; that the occurrence is witnessed by sufficient persons. Motive behind the *M.Siraj Afridi P.S. D

occurrence is stated to be that accused was suspecting the character of deceased daughter of the complainant. Report of the complainant was reduced into writing in the shape of muraila Exh.PA/1 by Daud Khan SI (PW.13), on the basis of which FIR No.501 dated 15.12.2008 was registered.

3.After completion of investigation and arrest of the accused/appellant, challan was submitted against him before the learned Trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. To bring home the guilt of appellant, prosecution examined as many as fourteen witnesses. After closure of the prosecution evidence, statements of accused/appellant was recorded under section 342 Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath under section 340 (2) Cr.P.C. or to produce evidence in *M.Siraj Afridi P.S. D

defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced the appellant, as mentioned above, hence, this appeal.

4.Learned counsel for the appellant argued that appellant is innocent and has been falsely implicated in the case on mere suspicions; that it is a case of no eyewitness, while PW Miraj Gul, claiming to be the eyewitness of the incident is procured and unreliable that’s why his testimony does not find corroboration from any circumstance of the case, rather his own statement falsify his presence on the spot; that there is no circumstantial evidence to make a chain in the way that its one end touch the dead bodies of the deceased, and other, the neck of the appellant; that motive alleged by complainant in his initial report shrouded in mystery rather a new motive of land dispute has been introduced in his court statement; that *M.Siraj Afridi P.S. D

negative FSL report qua crime empties and crime weapon allegedly recovered from the appellant further weaken the prosecution story; that for recording conviction in a capital charge, evidence of unimpeachable character, trustworthy and confidence inspiring is required, which is lacking in the instant case; that on mere gravity of the offence, an innocent person cannot be made a scapegoat. He argued that learned Trial court has recorded the conviction of the appellant on mere surmises and conjecture, perhaps being influenced from severity of the offence. He contended that prosecution evidence is shaky, scanty and suffering from material contradictions and discrepancies, creating serious doubts, benefit of which is to be extended to the appellant and he be acquitted.

5.Conversely, learned counsel for the complainant while controverting the arguments of learned counsel for the appellant contended that *M.Siraj Afridi P.S. D

accused is directly and singularly charged for the occurrence where four persons have been done to death brutally; that PW Miraj Gul has furnished the ocular account of the incident and his testimony gets corroboration from medical and circumstantial evidence coupled with unexplained noticeable abscondence of the appellant. He further contended that the impugned judgment being well reasoned and based on proper appraisal of evidence, is not open to any interference by this court, thus, sought dismissal of the appeal.

6.Learned AAG adopted the arguments of learned counsel for the complainant and supported the impugned judgment.

7.We have considered the respective submissions of either side and perused the record with their able assistance.

8.It appears from the record that this unfortunate incident took place in the month of *M.Siraj Afridi P.S. D

December, 2008, at early hours i.e. 8.00 a.m., in which one Baz Gul, his wife Mst. Rukhshanda and minor daughter Mst. Iqra, have been done to death alongwith one Juhar, with fire arms, which was reported by Fazal Karim complainant on the spot charging appellant directly and singularly for the murder of four deceased. As manifest from his report Exh.PA/1 and statement as PW.10, complainant is not the eyewitness of the incident.

His report reflects the deceased were lying on the spot when he reached the spot from Mardan. In his report, complainant has categorically stated that on satisfaction he came to know that the deceased have been done to death by appellant Nadeem, but he has not furnished the source of his satisfaction about complicity of the appellant. Though, in his report he has mentioned the incident to have been witnessed by sufficient people, but has not disclosed the names of those people. He has also *M.Siraj Afridi P.S. D

not disclosed about presence of PW Miraj Gul on the spot or at the time of report. Had PW Miraj Gul or other people narrated the occurrence to complainant, he would have mentioned their names in his very initial report. During investigation of the case, PW Miraj Gul never claimed to be the eyewitness of the incident. Later on, it was during trial of the case, that PW Miraj Gul claimed himself as such, therefore, complainant in order to bring in line his testimony with that of PW Miraj Gul, deposed that on his arrival at the spot, PW Miraj Gul, brother of deceased Baz Gul and other people about commission of the offence by

accused/appellant. In his statement he introduced a land dispute as new motive. This part of his statement is total departure from his earlier version and amounts to dishonest improvement, benefit of which would go to none else but the accused.

None from the alleged people who witnessed the *M.Siraj Afridi P.S. D

incident, has been named or produced in the witness box nor examined by the I.O., so much so that Zia Ullah, who allegedly informed the complainant has not been examined.

9.PW Miraj Gul posing himself to be the eyewitness of the incident appeared as PW.11. In his statement he charged appellant for commission of the offence and deposed that at the time of incident he was present in his house; that on report of fire shot and receipt of information qua murder of his brother Baz Gul by the appellant, he rushed to spot and saw dead body of his brother Baz Gul lying on the ground while the accused was proceeding towards the house of his deceased brother; that he followed him and inside the house the accused fired at Mst. Rakhshanda, Juhar and Mst. Iqra, who all were hit and died. The testimony of PW Miraj Gul give rise to some disturbing questions in our mind, firstly, that if he was present *M.Siraj Afridi P.S. D

on the spot, why did not he report the incident at the very first instance narrating the ocular account of the incident, and secondly, how one would believe that a person whose brother has been done to death by an accused, would not take any step against him and would not take any effort to save his sister-in-law and his niece, the next prey of the accused and would just follow the assassin like a silent spectator. In normal course of events, keeping in view the norms of our society, in such like situation, if one would hear about murder of his brother, he would definitely rush to the spot along with weapon to deal with the assassin at the same hands, and if for the sake of arguments, PW Miraj Gul had no arm, he could at least chase the accused or rush towards the house of his deceased brother to save his widow and children, but no such effort has been offered by PW Miraj Gul, which is quite contrary to natural human conduct and does not appeal to *M.Siraj Afridi P.S. D

Moreso, in cross-examination PW Miraj Gul was confronted with his statement under section 161 Cr.P.C. wherein he has stated that after satisfaction he charged the accused. He has not stated the occurrence to have been witnessed by him. Had he witnessed the incident, the author of his statement and murasila would have mentioned him as eyewitness. Daud Khan SI (PW.13), the author of murasila in cross-examination categorically deposed that he remained on the spot for about 30 minutes, but none appeared before him as an eyewitness of the incident at the time of scribing murasila.

Statement of PW.13 totally negates the version of PW Miraj Gul. Site plan, prepared at the pointation of complainant, totally belies the statement of PW Miraj Gul, as he has not been shown therein as eyewitness. Had he witnessed the incident, his presence would have been shown in the site plan.

Besides, if PW Miraj Gul was present there on the *M.Siraj Afridi P.S. D

spot, the site plan would have been prepared by the I.O. on his pointation, being an eyewitness of the incident, but situation is contrary to above.

10.In view of the above discussion, we are of the firm view that PW Miraj Gul is not the eyewitness of the occurrence. He failed to establish his presence on the spot and his testimony does not find corroboration from other material circumstances of the case, rather the peculiar facts and circumstances of the case negates the mode and manner of the incident as alleged by him, therefore, the learned Trial court was not justified to believe and rely on his statement.

11.The appellant has not confessed his guilt before any competent court of law nor any recovery has been effected from his direct possession nor has he made any discovery. So far as taking into possession a Kalashnikov along with ten live rounds of 7.62 bore as weapon of offence, *M.Siraj Afridi P.S. D

the same has not been recovered from the accused rather according to PW Dilarm ASI, marginal witness of the recovery memo, the same was produced by father of accused which was taken into possession. Again, the recovery of the said Kalashnikov is of no help to the prosecution, because it was sent to the FSL along with recovered crime empties for analysis, report whereof is in negative.

12.We did not find circumstantial evidence in the shape of a chain to reach the neck of the accused. Mere recovery of blood from the places of the deceased, their bloodstained garments and empties, in absence of direct and substantial evidence, would not be sufficient to prove the guilt of the appellant being corroborative pieces of evidence which are always taken into consideration along with direct evidence.

The direct evidence of the alleged eyewitness is *M.Siraj Afridi P.S. D

highly improbable and suffers from material discrepancies which creates serious doubts about his presence on the spot and the mode and manner of the occurrence as alleged by him. As observed by the apex Court, corroborative 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), Asadullah’s case (PLD 1971 SC

541)cases titled, “Saifullah Vs the State” (1985 SCMR 410), “Riaz Masih Vs the State” 1995 SCMR 1730, Siraj Vs Crown (PLD 1956 Federal Court 123), and Saifullah’s case (1985 SCMR 410). Same is the abscondence, which would be a relevant fact, but it can be used as a corroborative piece of evidence, which cannot be read in isolation, but has to be read along with substantive piece of evidence.

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13.We are mindful of the brutality committed in this incident as four persons including a minor girl of 4/5 years have been done to death, but at the same time, we cannot ignore the rule of benefit of doubt i.e. the rule of prudence while dispensing justice being based on the maxim that it is better that ten guilty persons be acquitted by having benefit of doubt, rather than one innocent person be convicted. This rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of saying of the Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing criminal is better than his mistake in punishing an innocent person. Thus, on mere heinousness of the offence and brutality, we cannot convict a person against whom we did not find any cogent and convincing evidence, so his conviction on the basis of mere surmises and conjectures being influenced from the *M.Siraj Afridi P.S. D

severity of the offence, would amount to another brutality.

14.For what has been discussed above, the prosecution has miserably failed to bring home the guilt of appellant through cogent and confidence inspiring evidence beyond any shadow of doubt. The prosecution evidence is pregnant with doubts, benefit of which is extended to the appellant. Resultantly, we allow this appeal, set aside the conviction and sentence of the appellant recorded by the learned Trial Court vide impugned judgment, and hereby acquit him of the charge. He be set at liberty forthwith, if not required in any other case.

15.These are reasons of our short order of even date.

16.Before parting with the judgment, we would not hesitate to deprecate the role of the Investigating Agency who roughly dealt with the *M.Siraj Afridi P.S. D

investigation of the instant case where goats or sheep had not been done away with; rather four innocent human lives have been shot dead with brutality. The Investigating Agency taking no pain to unearth the real facts and to trace out culprit/culprits, has dealt with the case in a casual manner. It would be easy for everyone to investigate a simple and easy case, but the real task for the Investigating Agency would be to trace out the real offender (s) of blind murders cases, like the one in hand by conducting step by step investigation in light of the clues and material collected from the spot or from other secret information and pieces of evidence. Today’s Law enforcing Agencies are not like the past when they were not equipped with modern technology. At present, modern technology has made the life and job of every person much easier. Even tracer

dogs/sleuthhounds are being used by the law Enforcing *M.Siraj Afridi P.S. D

Agency for many purposes, such as detecting explosives materials and arresting culprits. Though, there is no evidentiary value of the proceedings of the tracer dogs in the eyes of law, but such devices could be helpful for the Investigating Agency in reaching the actual culprits and digging out the true picture of the blind incidents, in light whereof further progress could be made in the matter and at least they could reach the true picture of an episode. Office is directed to send copy of the judgment to the Additional Inspector General Police (Investigation) (A.I.G), Khyber Pakhtunkhwa for taking the matter into consideration and doing the needful in future. Any step taken in the matter should be intimated to this court.

Announced.

JUDGE

JUDGE

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