Wahid Bakhsh vs State

2014 P Cr. L J 244

[Peshawar]

Before Abdul Latif Khan and Lal Jan Khattak, JJ

WAHID BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.34-D of 2012, decided on 2nd July, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-e-amd, common intention---Appreciation of evidence---Three accused were charged initially in promptly lodged F.I.R., but effective role was given to accused--- Version given by the complainant in the F.I.R., had fully been supported by prosecution witnesses---Minor discrepancies in the evidence, could not be considered for acquittal of accused---Eye-witnesses had deposed without any material contradictions; they were subjected to taxing cross-examination, but nothing adverse to the prosecution, had been brought out from them---Mere relationship of complainant and eye-witnesses, would not disqualify a witness to be a truthful and natural witnesses; their testimony could not be thrown away on account of their relationship---No justification existed as to why the complainant and the eye-witnesses would falsely implicate accused, or substitute them for the real culprits---No possibility was available for disbelieving the complainant and eye-witnesses---Accused and eye-witnesses being from the same village, element of identification, could not be doubted---Discrepancies, tried to be pointed out by counsel for accused in the prosecution evidence, would not affect the case of the prosecution, as same in no way could be termed as grave, so as to damage the substance of the prosecution case---Guilt of accused was established through cogent and confidence inspiring evidence---Motive of the murder of deceased was not established---Accused remained absconder for a period of almost one year, and weapon of offence had been recovered from accused--- Medical evidence and the time given in the Murasila and the post-mortem report, were in line with each other---Ocular account, recoveries and the medical evidence were in consonance with the version made by the complainant---Prosecution had succeeded to bring home guilt of accused---Since the motive to kill the deceased could not be proved by the prosecution, sentence awarded to accused by the Trial Court, seemed to be justified, which warranted no interference---No role of firing having been attributed to acquitted co-accused, and sharing of common intention by them being doubtful, they were rightly acquitted by the Trial Court.

Farooq Akhtar and Burhan Latif Khaisori for Appellant.

Khan Wali Khan, Additional A.-G. for the State.

Saifur Rahman Khan for the Complainant.

Date of hearing: 2nd July, 2013.

JUDGMENT

ABDUL LATIF KHAN, J.---Through this single judgment, we propose to dispose of Criminal Appeal No.34-D of 2012, Criminal Appeal No.36-D of 2012 and Criminal Revision No.14-D of 2012 as all the three matters have arisen out of one and the same judgment dated 6-6-2012 passed by learned Additional Sessions Judge-1V, D.I. Khan.

2.The facts of the prosecution case, in brief, are that complainant Muhammad Yaqoob reported the matter to the local police on the spot in the shape of murasila to the effect that on 24-6-2010, he along with Muhammad (deceased), Aamir, Basharat and Iqbal were present in the thoroughfare as the father of Allah Bakhsh, their relative had died. At 1 a.m. (night), Wahid Bakhsh armed with Kalashnikov, Sona Khan and Haji armed with pistol came there and Wahid Bakhsh started firing at Muhammad Azam with his Kalashnikov, with which he was hit and died on the spot. After the occurrence, the accused bolted away from the spot.

3.After completion of usual investigation, challan against the accused was submitted before the learned trial Court where they were formally charged to which they did not plead guilty and claimed trial. In order to prove its case against the accused, the prosecution examined 15 witnesses. The accused were also examined under section 342, Cr.P.C. wherein they professed innocence and false implication. However, they neither appeared as their own witnesses on Oath as required under section 340(2), Cr.P.C. nor produced any evidence in their defence. After hearing the arguments, the learned Additional Sessions Judge-1V, D.I. Khan vide impugned judgment dated 6-6-2012, acquitted accused Akhtar Ali alias Sona Khan and Ikram alias Haji and on conviction under section 302(c), P.P.C., sentenced accused Wahid Bakhsh to ten years S.I. with benefit of section 382-B, Cr.P.C. extended to him, hence appeal against conviction by convict-appellant Wahid Bakhsh, criminal appeal against conviction and criminal revision for enhancement of sentence awarded to convict-appellant by Muhammad Yaqoob complainant.

4.Learned counsel appearing on behalf of convict-appellant Wahid Bakhsh and acquitted respondents contended that in the F.I.R., except for convict-appellant Wahid Bakhsh, the other accused are not charged by their real names. They contended that the site plan does not support the prosecution case and there are material contradictions in the statements of eye-witnesses. They argued that the medical evidence is also not in line with the prosecution evidence. They contended that the Kalashnikov and the empties recovered from the spot were not sent to the

F.S.L to ascertain as to whether the empties recovered were fired from the said Kalashnikov or not. They contended that except for their presence on the spot with pistols, no overt act has been attributed to accused/respondents Akhtar Ali alias Sona Khan and Ikram alias Haji and thus the learned trial Court erred in awarding sentence to convict-appellant Wahid Bakhsh.

5.Conversely, the learned A.A.-G. assisted by counsel for the complainant vehemently opposed the arguments of learned counsel for the accused and contended that all the accused are charged by name in the F.I.R. The occurrence is supported by ocular account of eye-witnesses, medical evidence, site plan and recoveries. They argued that the accused and complainant being co-villagers, there is no chance of misidentification and that too when bulbs were lit in the street. It was contended that convict-appellant Wahid Bakhsh also remained fugitive from law for over one year. They contended that the learned trial Court has erred in convicting appellant Wahid Bakhsh under section 302(c), Cr.P.C. and prayed for enhancement of his sentence and also conviction of acquitted respondents.

6.We have given our thoughtful consideration to the arguments addressed at the bar by learned counsel for the parties and perused the record with their able assistance.

7.In the instant case, the report was made by Muhammad. Yaqoob complainant in the shape of murasila (Exh.P.W.7/1) on 24-6-2010 at 2-15 a.m. on the basis of which, F.I.R. No.357 was lodged on 24-6-2010 at 3-30 a.m. A natural story has been put forward by the prosecution. Three accused were charged initially but effective role was given to the convict- appellant Wahid Bakhsh. The occurrence was stated to have been witnessed by Aamir, Basharat and Iqbal apart from the complainant. The complainant has reiterated the version given in the F.I.R. and the P.Ws. have fully supported the complainant/prosecution story. Though the learned counsel for the convict-appellant referred to minor discrepancies in the evidence but the same cannot be considered at all for acquittal of the convict-appellant who is charged for the murder of the deceased: Muhammad Nawaz (P.W.7) and complainant Muhammad Yaqoob stated about reporting of incident after the occurrence at about 1 p.m. where the police reached and the report was made. The time of report is mentioned as 2-15 a.m. as mentioned in the murasila and the time of autopsy is 3-15 a.m., are in line with each other. The eye-witnesses deposed without any material contradiction. They were subjected to taxing cross-examination but nothing adverse to the prosecution has been brought out from their mouth. It was argued that the complainant eye-witnesses are closely related to the deceased, therefore, their deposition is not worth reliance. Mere relationship does not disqualify a witness to be a truthful witness and being natural witnesses, their testimony cannot be thrown away simply on account of their relationship. Their testimony comes within the ambit of truthful witnesses to which no exception can be taken unless there is any adverse inference in the light of Article 3 of Qanun-e-Shahadat Order.

8.Ranjhu, father of the deceased was examined as Court Witness. The learned trial Court put specific question to the witness as to whether his son Muhammad Azam was killed by accused facing trial namely Wahid Bakhsh, Ikram and Akhtar Ali on 24-6-2010 at 1 a.m. (night), if so why, to which he deposed that he believes that the accused have killed his son and the people present on the spot have seen them committing the murder of his son. He added that there was no previous enmity with the accused facing trial and on Court query, he replied that the original enemies were behind the screen in village Dajal, District Bhakkar (Punjab) and the present accused are hired assassinators. He added that since his son Muhammad Azam was not providing opportunity to original enemies, therefore, they hired the present accused facing trial. He was asked by the Court that Muhammad Yaqoob might have killed his son in collusion with eye-witnesses, to which he replied that Muhammad Yaqoob complainant and eye-witness Aamir both are sons of his sister-in-law while Muhammad Iqbal is the son of his brother-in-law. He

denied the suggestion that they have killed his son Muhammad Azam and added that they could never do so. He further added that Muhammad Yaqoob and eye-witnesses have cordial relations with him and have no motive or illwill against his son Muhammad Azam. From the statement of father of the deceased, there appears no probability of involvement of complainant Muhammad Yaqoob or eye-witnesses in the murder of deceased Muhammad Azam. Even otherwise, the complainant or eye-witnesses had no justification or motive to murder the deceased. Similarly, there exists no justification as to why the complainant and the eye-witnesses would falsely implicate the accused or substitute them for the real culprits and would depose against them for the murder of the deceased, despite the fact that they have got no previous enmity with the accused party and in such eventuality, there is no possibility for disbelieving the complainant and eye-witnesses. Moreover, the accused and eye-witnesses hail from one village i.e. Muryali, as per the prosecution version, which is not rebutted by the accused, the element of identification cannot be doubted especially when there is no specific plea to this effect on behalf of the accused.

9.The discrepancies, tried to be pointed out by counsel for the accused in the prosecution evidence with special reference to the points mentioned in the site plan in respect of existence of another street in between the houses of Shah Jehan and Allah Bakhsh, would not affect the case of the prosecution, as they same in no way can be termed as grave discrepancies so as to damage the substance of prosecution case. The argument of the learned counsel for the convict-appellant, that some assailants might have come behind the complainant party from the street and killed Muhammad Azam, amounts to nothing but a mere supposition in order to get escape from the charge of commission of offence. The prosecution evidence has totally refuted this possibility and if at all any deviation of a light nature, which is not available, is found, the same cannot be considered to benefit the convict-appellant, as the guilt of the convict-appellant is otherwise established through cogent and confidence inspiring evidence.

10.Motive for the murder of deceased is not established. The complainant in his statement has also deposed that no enmity between the parties exists, however, a 20 years old dispute between relatives of the parties was existing but the same was not a big issue. This statement of complainant is not tainted with any malice but is a natural phenomenon. Neither the complainant nor the P.Ws. are sure about the real motive for the occurrence, however, father of the deceased was examined by the trial Court who has given an account to this effect which shows that the motive behind the occurrence was the real enemies who hired the accused as assassinators and due to this reason, father of the deceased was of the firm opinion that the accused have killed his son in connivance with his enemies. He has made a natural statement that he would have charged the real enemies if wanted to falsely implicate someone for the murder of his son but has levelled charge against the accused by the persons who were present on the spot and have witnessed the occurrence. This aspect of the case too has been presented by the learned counsel for the convict-appellant in a self favoured way, pointing out discrepancies, but the same cannot be given weight for the simple reason that the evidence available on file is of a standard which is confidence inspiring and cannot be ignored.

11.The convict-appellant Wahid Bakhsh remained absconder for a period of almost one year. The Kalashnikov, weapon of offence, has been recovered from him. Proceedings under sections 204/87, Cr.P.C. were initiated against him which were verified by P.W.3. Convict- appellant Wahid Bakhsh belongs to same village Muryali and it does not stand to reason that murder committed in a small village, for which he is charged, was not in his knowledge and he remained unaware of this fact. There is no explanation on the part of the convict-appellant to justify the absconsion. The arrest of the convict-appellant was not voluntary.

12.So far as the medical evidence is concerned, it is in line with the ocular evidence. The time given in the murasila and the postmortem report is in line with each other. Nothing adverse to the prosecution to this effect is available on file and as such the ocular account, recoveries and the medical evidence are in consonance with the version made by the complainant.

13.For the above stated reasons, the prosecution has succeeded to bring home guilt of the convict-appellant Wahid Bakhsh. However, since the motive to kill Muhammad Azam deceased could not be proved by the prosecution, therefore, in peculiar circumstances of the case, the sentence awarded to the convict-appellant by the learned trial Court seems to be justified and warrants no interference. The learned counsel for the complainant failed to point out any circumstance warranting enhancement in the sentence of the convict-appellant.

14.So far as the case of accused/respondents Akhtar Ali alias Sona and Ikram alias Haji is concerned, except for their presence at the spot, no role of firing has been attributed to them by the complainant and eyewitnesses and as such the sharing of common intention by them is doubtful and thus they were rightly acquitted by the learned trial Court.

15.For the reasons mentioned above, we maintain the impugned judgment and dismiss Criminal Appeal 34-D of 2012, Criminal Appeal No.36-D of 2012 and Criminal Revision No.14- D of 2012.

HBT/522/P Appeal/revision dismissed.