Ibrahim vs Saifullah

2012 P Cr. L J 1498

[Peshawar]

Before Mazhar Alam Khan Miankhel and Fazle Haq Abbasi, JJ

IBRAHIM---Appellant

Versus

SAIFULLAH and others---Respondents

Criminal A. No.214 of 2011, decided on 1st March, 2012.

Penal Code (XLV of 1860)---

----Ss. 302/324/34/427---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, mischief causing damage to the amount of fifty rupees---Appeal against acquittal--- Appreciation of evidence--- Benefit of doubt--- Involvement of accused persons (respondents) in the commission of the offence was doubtful, and the very presence of the complainant (appellant) himself at the place of occurrence was unbelievable---Complainant while appearing as witness had made improvements in the story narrated by him with respect to assigning role of firing at different accused persons---Vehicle at which accused persons allegedly fired, was hit with fire-arms from all four sides but the complainant in his report and statement before the court had taken the stance that he took shelter in the space between the front and rear seats of the vehicle and escaped unhurt---Fact that complainant escaped unhurt was difficult to believe as given vehicle was fired at indiscriminately from all sides---Said vehicle was not produced in evidence and was neither examined by a motor vehicle examiner nor any photographs of the same were brought on record- --Non-production of vehicle to prove and strengthen the stance of the complainant, was an

important factor, in absence of which prosecution story could not be believed---Complainant claimed to have identified the accused persons in the headlights of the vehicle, whereas record suggested that there were bushes and trees on both sides of the road, therefore, persons present in bushes during night time could not have been identified in the head lights of the vehicle---Site plan revealed that recoveries of empties had been made from nearby bushes---Places assigned to the accused person on the site plan placed them in the line of fire of each other and, in circumstances, complainant who was lying in the vehicle could not have escaped unhurt--- Evidence was insufficient to believe that firing was made by all the accused persons as the empties were not sent to the Forensic Science Laboratory--- Medical reports and injury sheets of the deceased persons revealed that same had received fire-arm injuries on different parts of their bodies including entrance wounds in the belly of one of the deceased---Given such level of injuries, it was hard to believe that complainant lying in the back of the vehicle escaped unhurt---Prosecution had alleged motive but failed to prove the same---Trial Court had rightly acquitted the accused persons after fully appreciating the evidence and material available on the record---Appeal against acquittal was dismissed, in circumstances.

Sher Muhammad Khan for Appellant.

Nemo for Respondents.

Date of hearing: 1st March, 2012.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---Impugned herein is the judgment/order dated 24- 3-2011, whereby the accused/respondents Nos.1 to 4 were acquitted by Additional Sessions Judge/Izafi Zilla Qazi, Buner at Daggar, in case F.I.R. No.47, dated 15-5-2009, Police Station Bisham, District Shangla, registered under sections 302/324/34/427, P.P.C.

2.The brief but the material facts of the case are that on 15-5-2009 at 2200 hours, Lal Muhammad Khan S.-I. Investigation was attracted to the spot on the information provided by Ibrahim P.W.6, complainant of the case. When he reached the spot, he observed that a Suzuki Jeep bearing No.50001/AJK-B was standing on the road and two dead bodies were lying on the front seat of the jeep. Ibrahim son of Muhammad Naeem, P.W.6, complainant of the case

reported the matter that on the day of occurrence, he along with his two deceased brothers, namely Muhammad Daud Khan and Gulab, had gone to Batagram. They while on their way back to their home, when reached at Khonanu Dherai near Tangai on Karakurrum highway, he saw the accused/respondents, namely Saifullah and Rehmat Nawaz, both sons of Dost Muhammad, Muhammad Zahir and Tikka Khan, both sons of Gul Muhammad, were standing duly armed with Kalashnikovs and all of them started firing at them. Resultantly, his two brothers on the front seats of the jeep were hit on different parts of their bodies and died on the spot, whereas he, in between the space of front and rear seat, hide himself and escaped unhurt.

3.The case was initially investigated by Lal Muhammad Khan S.I. and he partially investigated the case but after sometime, he died and further investigation in the case was conducted by Sarzameen Shah S.I. P.W.2. He also identified and verified the handwriting of the said Lal Muhammad Khan S.I. and exhibited all the documents prepared by him during his investigation. After arrest of the accused/respondents, case was investigated by Sarzameen Shah S.I., P.W.2, who after completion of investigation, handed over the complete challan to Muhammad Zaman Inspector SHO and he submitted the challan in the Court. The learned trial Court tried all the accused/respondents. The prosecution to prove its case, produced eight P.Ws., whereas the accused/respondents by claiming their innocence, recorded their statements under section 342, Cr.P.C. and on conclusion of the trial, the learned Additional Sessions Judge-I/Izafi Zilla Qazi, Buner at Daggar, acquitted all the accused/ respondents by giving them the benefit of the doubt. The complainant, feeling himself aggrieved of the acquittal of respondents, has filed the instant appeal. H

4.Learned counsel for the appellant vehemently argued that the judgment of acquittal rendered by the learned trial Court is against the law and misappreciation of evidence and material on the record; that the prosecution has proved its case beyond any shadow of doubt by producing the ocular account as well as other circumstantial evidence which has fully established the case against the accused/respondents, so their acquittal in the circumstances was not warranted under the law which is liable to be set aside and they are liable to conviction.

5.Learned counsel for the appellant was heard and record of the case was perused.

6.Perusal of the record would reveal that no doubt that two young men have lost their lives by indiscriminate firing on their jeep, but the available record and the evidence produced by the prosecution makes the involvement of the accused/respondents in the commission of offence as doubtful and the very presence of the complainant himself is unbelievable in presence of the material available on the record; that the complainant while appearing as P.W.6 narrated the same story but has made improvement by specifying that Daud deceased was done to death by

Saifullah and Zahir accused/respondents, whereas Gulab deceased fell victim to the firing of Rehmat Nawaz and Tikka, whereas in his report in the shape of Murasila Exh.PA, he has stated that all the four started firing which resulted into the death of the two deceased; that the jeep in question was recovered vide recovery memo Exh.P.W.2/14, which reflects that the said jeep was hit with the fire-arms on all its four sides but the complainant, in his report and statement before the Court has taken a stance that he took shelter in the space in between the front and rear seats of the jeep and was escaped unhurt. He further argued that this stance of the appellant in presence of the recovery memo Exh.P.W.2/14, makes it difficult to believe that how a person lying in the jeep which is fired at indiscriminately from all the sides was escaped unhurt, the prosecution has also suppressed the material evidence by not producing the said jeep in evidence, this jeep was neither examined, by the Motor Vehicle Examiner, nor any photographs of the same were brought on the record by the Investigating Officer. In absence of such material evidence, one cannot believe that the complainant luckily escaped unhurt. P.W.5, Fazal Rahim has shown his ignorance whether the jeep was hit from its backside whereas the complainant has categorically denied that jeep was hit from its backside. The most astonishing aspect of the case is that brother of the two deceased and complainant, namely Badam Khan, who also appeared as P.W.4 being an advocate was the person who received the said vehicle in legal custody, so non- production of jeep to prove and strengthen the stance put-forth by the complainant, is such an important factor in absence of which the story of prosecution cannot be believed.

Similarly, the complainant has said that he identified the accused/respondents in the headlights of the jeep, whereas it has been brought on the Hrecord by Investigating Officers that there are bushes and trees on both the sides of the road, so persons present in the bushes at night time cannot be identified in head-lights of a vehicle. The presence of bushes is apparent from the site plan prepared by the Investigating Officer, Exh.PB, and recoveries of empties were also made from nearby these bushes. The places given to the accused/respondents, as per site plan, would further make it unbelievable as if the accused standing at the places assigned to them and fired at the jeep, then both sets of the accused/respondents were in the line of fire of each other in such a situation, the complainant lying in the rear side of the jeep also cannot escape unhurt in the situation.

7.The Investigating Officer, during investigation, had recovered empties of .8-MM and 7.62 bore from different places, but the available record and evidence is insufficient to believe that firing was made by four persons as the empties were not sent to F.S.L., so in absence of F.S.L. report, the story of prosecution once again becomes doubtful qua the involvement of four persons in the commission of offence, cannot be accepted as true.

8.The locale of injuries, as described by the doctor in his medical reports and injury sheets prepared by the Investigating Officer would further reveal that both the deceased received fire- arm injuries on different parts of their bodies including the entrance wounds in belly of one of

the deceased. So, this level of injury is hardly to believe that the complainant lying back of the front seat would escape unhurt.

9.Motive was also alleged by the prosecution, but prosecution badly failed to prove the same.

10.So, in presence of the above-said evidence, one cannot make reliance on the same for conviction of the accused/respondents. The learned trial Court, after fully appreciating the evidence and material on the record, has rightly acquitted the accused/respondents.

So, in this view of the matter, this appeal being meritless, is dismissed in limine.

M.W.A./143/P Appeal dismissed.

H