Nazak Vs State

JUDGMENT STU,:.W-'{'

IN THD PESHA WAR HIGIT CO UR

DDRA ISIVIAIL KHAN BENCH.

(Judicial Department)

Cr. A No. 35 -D of 2016 witlt llt[ urder Reference No,A S - ;.j o 201 )\ r 7 i

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NAZAI( I

Vs s, o.

The State.

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I)ate of hearing 05.04 .20tf-

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/Zr"ao6 ' Resp

Isi{TIAo II}ttAIIIlvI. J.--- i'hrough this criminal appeal, the appellant Nazak has called in question the juclgnrent <lated 06.06.2016 rendered by learned Sessio,s Judge, Tank,.

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whereby the appellant Nazak has beon convicted and i

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sentenced as under:

,) Convicted under se<:tion 302 (b) ppc and sentemced to death fl.r Tc'zir with ATTESTL'ti compensation of Rs.50,00,000/- urider ,l

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Pcsnawar High Cor;.r sectiort 544-A Cr.PC's,nd in defautt thereoJ' he sltallfurther sufJbr six months S.I

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2.The murder reference has also been sent to this court for its confirmation. The appeal and murder reference are going to be decided through this single judgment J The prosacution case according to F.I.R (Ex PA) is that:

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:i' 4. Haroon-ru-Rashid ASI, reduced report of complainant in shape'of murasila, which was read over and

explained to him, who after admiuing it to be correct thumb

impressed the same in token of its correctness, whereafter, he

prepared the inju.y sheets and inquest reports of the

deceased. Sent the murasila to police Station through constable Muhammad Aslam No.l g6, while the dead-body of

the deceased was sent for pQst mortem to the hospital under the escort of constable Rafiullah No.l9g. Amir Abdullah sI

(Pw-4) on receipt of murasila incorporated its contents in

shape of F.I.R (Ex:PA) and sent the same to the Faridullah sI

(Pw-5) investigation officer, who rushed to the spot and in presence of complainant he prepared site plan Ex:pB, recovered one empty of 30 bore, vide recovery memo Ex:pc, til blood stained garments of deceased vide recovery memo Ex:PC/l and recorded statements of witnesses. on ii' t

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ATTEs'tEHompletion of investigation he submitted complete challan

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under section 512 cr.PC, as at that time accused/ appellant was absconding. After arrest of accused/ appellant the S.H.o Imam shah submitted supplementary challan Ex:cwl/l.

Accused/ appellant was summoned from jail and after complying with provision under section 265-c cr.pC, formal

charge was framed against the accused /appellant on

28.09.2015, to which he pleaded not guilty and claimed trial.

The prosecution in order to prove case against the accused/ appellant produced and examined as many as six pws statement of accused was recorded under section 342 cr.pc,

on 19.05.2016, wherein he professed his innocence, neither he wished to be examined on oath as provided under section

340 (2) cr.PC nor he opted to produce defence evidence :

Learned trial court after hearing arguments of learned t counsel for the parties, vide impugned judgment dated 06.06.2016 convicted and sentenced the accused/ appellant Nazak as mentioned above. The convict Nazak filed this cr.A No.35-D of 2016, while the court has sent murder ;l

Reference against the appellant for its confirmation. The ,'| i,

ATTESTEL

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appeal alongwith murder reference are going to be decided through this common judgment.

5 Learned counsel for the appellant argued that there is considerable delayrin lodgiqg the F.I.R, which is fatal to the case of prosecution. It appears to have been lodged with due deliberation, consultation and preliminary investigation by the police. He further argued that complainant is alleged eye witness of the occurrence, but he was abandoned. The place of alleged occurrence is the front of Manzoor Hotel, but said Manzoor was not produced by the prosecution, therefore, non production of important witnesses goes to the roots of the case of prosecution. He vehemently argued that the learned trial court has wrongly relied upon the statement of complainant recorded during proceedings under section 512 cr.PC, despite the fact that on z3.L2.zor5 the complainant was present, but his statement was not recorded and was l:

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abandoned being won over. He lastly argued that there is no t legal evidence, which connects the appellant with the ii commission of offence, therefore, the learned trial court has

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committed serious illegality by awarding capital punishrnent N,frffi- ,l

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to the accused, which is not maintainable and liable to be set at naught

6 On the other hand learned Addl: A.G for the State and leamed counsel for rhe LRs of deceased, argued that single accused is charged for murder of an innocent person in a broad day light, witnessed by " disinterested persons, whose statements are fully corroborated by the other

materials, recorded during proceedings under section 5rz

cr'PC, which is admissible under Article 47 ofthe eanun-e-

Shahadat order and has been kept away by the appellant. I-Ie

went on to say that the crime empty of 30 bore pistol was

recovered from the place of occurrence, while the deceased received single firearm wound, which corroborate,s the version of prosecution. He vehemently argued that the accused after the occurrence went into hiding and remained i

fugitive from law for a considerable period of long fifteen years. His further argument was that there is strong motive i l.

.:i behind the occurrence, which is fully established. He lastly ilri ' l'l;ti,

argued - that ocular account, medical evidence and other

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circumstantial evidence are in corroboration and prima facic

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establish guilt of accused/ appellant, therefore, the leamed trial court has rightly convicted and sentenced the accused/ appellant, which needs not to be interfered with. In alternate he prayed for remand of the case for proper transposition of

the statement of PW Gandapur

7 Arguments heard and record perused.

8 Before adverting to the present case, we would like to discuss the provisions of law, which provide exceptions to the general rule, that oral evidence must be

direct. In view of this court there are mainly two exceptions

(l)Dying declaration (under Article 46 of the eanun-e- i/:

shahadat order, 1984) and (2) statement recorded under section 512 cr.PC read with Anicle 47 of the eanun-e-

Shahadat Order I984.

9 The above mentioned two provisions are

exceptions to ordinary rule of law, as evidence is to be recorded in presence of the accused as provided under section 353 cr.PC. The above referred two categories of evidence take away the right of accused of recording eviclence in his "l AI ESTEl.r

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presence. Evidencel Dying declaration can be treated as substantive evidence and accused can legitimately be convicted on the strength of the ibid statements, subject to certain limitations prescribed by the law. Both the above referred statements can be admitted in evidence without cross-examination

10.Now adverting to the facts of the present case, in this case PW Gandapur lodged the report, though he has not named any person as witness to the tragedy, but during the course of investigation one Manzor was also examined. It is pertinent to mention here that after the occurrence appellant absconded and statement of PW Gandapur was recorded under section 512 Cr.PC on,17.05.2006. After arrest of the appellant supplementary challan was submitted and charge was framed on 28.09.2015. On 23.12.2015 PW Gandapur l t

(the complainant) appeared before the trial Court and was

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brought to the dock by the prosecution, but was abandoned being won over through a joint statement duly signed by the ATTESTE# complainant's counsel and District Public Prosecutor on the N*,o il;i: t-cr ;, t same day "teshelvar tr'i D.l.Kilaii Literitir lr

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For convenience section 512 Cr.pC is reproduced as

"512. Record of evidence in absence of accused. (I) If it is proved that an accused person has ab&Londed, 'and that rhere l's no immediate prospect of aruesting him the Court competent to try or sendfor trial, to the Court of Session or High Court such person for the offence complained of ffia!, in his absence, examine the witneises (tf any) produced on behalf of the prosecution, and record their deposittons. Any such'deposition may, on the arrest of such person, be given in eviclence against him on the inq,uiry into, of triat for the offence with which he l's chargetl, tf the dependant is dead t)r incapable of giving evtdence or his attendance cannot be procurecl without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2)Record of evidence when offender unknown. If it appears that on offence punishable with death or imprisonment for ltfe has been com:mitted by some person unknown, ,i

the High Court may direct that any Magistrate t j : i

of the /irst class shall hold an inquiry ond

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examine any witness who can give eviclence l;

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may be given in evidence against any person eesn,tir;3;'

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who is subsequently accused of the offence, tf the deponent is dead or incapable of giving evidence or beyond the limits of pakistan.,,

11.Depositions recorded under section 5 l2 Cr.pC are relevant to the truth of facts, stated therein under article

47 of the Qanun-e-shahadat, which is reproduced berow as:

"47. Relevancy of certain evidence for proving, in subsequent proceeding the truth of facts therein stated. Evidence given by o witness in a judicial proceeding, or before ony person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judiciat proceedthg, the truth of the facts which ir states, wheni the witness r.s dead or connot be found, or Ls incapable of gtving evidence, or is kept out of the woy by the adverse parA, or if his presence cannot be obtained without on omount of detay or expense which, under the circumstances of the case, the Co urt considers unreasonable.

Provided that--

The proceeding was between the same parties or representatives-i n-interestl ), It

the aduerse party in the Jirst proceeding iii

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, .ri,,*ir iif had the right opportunity to cross-examine; 1-.'t 'i tl - I ia Ailh$t'g,t :'.i,dll -Affi trg+ii. rtii:i ::,'.1i; i;,::1.;

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- ll - Jo the questions in issue were substantially the some tn the /irst as in the second proceeding."

Article 47 of the eanun-e-Shahadat Order, lgg4 lays down certain limitations for admitting statement of

witnesses in evidence recorded earlier in accordance with

law. There are five instances, which are as under:

1.When the witness is dead;

2.When he canng!*befound;

3.When he is incapable of giving evidence,.

4.When he is kepl out of the way by the aclverse party; and

5.When his presence connot be obtainecl without an amount of delay of expense which the Court cons iders unreasonable.',

12.While in the instant case, the point for determination is, when a witness to the ris, who is present in

the court, is abandoned by the prosecution being won over,

whether his statement recorded under section 5 l2 cr.pc can

be transposed? In our view, the answer is in negative, it because of the reason that he does not qualiflz any of the five A"lTESTEP .i

COnditions ptovided by Article 47 of the Qanun-e-Shahadat

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order, 1984, rather the same is in contravention of section 353 of the criminal procedure code, wherein it is clearly embedded that evidence is to be recorded in presence of

accused.

13 The word "shall" has been used in section 353 cr.PC, which clearly manifests the intention of legislature Section 353 Cr.PC is reproduced as under:

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353.Evidence tb be taken in presence of accused. Except as otherwise expressly provided, all evidence taken under Chapters

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Wf, XXII and WII-A shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader." i

The only exception in the ibid provision 353 of the cr.PC is that if accused waives his right by dispensing with his presenie and is represented by pleader In the present case learned trial court adopted the procedure which

is alien to the law provided under the code as well as under

the Qanun-e-shahadat Order

ATT'ESTEI",

14.There is no cavil to the proposition that cross_ Pesh N .1i

iflfllrll:?,-fio.l,l examination is indefeasible right of the accused, which ';

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cannot be taken away except in exceptionar circumstances, as

referred in the preceding paragraphs.

1.5 Contention of the learned counsel that the

witness has been .rKept away,, by the appellant is mlsconceived, as he was physically present before the court

instead of abandoning him the prosecution courd have

examined and would havo declared him hostire in case he

was not supporting the c[p6ge.. or case of the prosecution

Reliance is placed on case titled "Bra: Ballabh V. Akhonv,

(AIR 1926 car 70s\, wherein it is herd that, when a witness, i, who has made a statement in a prior proceeding, ,l l is in i

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collusion with a party and avoids appearancc before a

court in a subsequent proceeding, his previous statement

may be proved. The proof, that the witncss was kept out

of the wry, is essentiar for admission of his or her previous statement. The fact that a witness is kept out of

the way by the adversary must strictly be proved.

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We will not subscribe to the submission of ATTESTET}6 the

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rNc 5learned counsel for the complainant that the trial court has #U ar ili.rir Cou ,t |-i.i.idt::i;i Sui)cr,

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not formally transposed the statement of complainant pw Gandapur and due to the reason, the case be remanded back for transposition of his statement, whose maker was present in the court and was abandoned being won over. In our view, .rl ,

this would amount to putting the cart before the horse, hence repelled.

l7 In view of this legal position, the statement of complainant Gandapur, r99o;{gd during earlier trial, cannot

be transposed in the event of presence of complainant before

the court during subsequent trial and as he was abandoned him by the counsel of complainant and learned Dpp, his j,'r r

prevrous statement could not be considered in t .i -) subsequent ,|

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trial against the appellant. From the available record that li is ,l

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the F.I.R and PM report shows the parentage of both tl the I

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deceased and complainant as Baran, caste Jaral t Khel i t\

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Pawanda, though that has not been clarified in evidence, '{J but

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parentage of the deceased and the abandoned pw ,t ,li

f,rrEsrE* complainant is szune, then how, he was abandoned being won over as apparent from the record he appears to be the brother P 9S I)<lr,i; I l. i.ii.1i I C6ri, 1 [j.1.]iilarr Li,,.-ir ofthe deceased.

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hq+' l8 Further more, other merits of the case are concerned, it is alleged by the complainant that other people who were present in the adda have seen the occurrence, but no one has been brought before the court, even one Manzoor, in front of whose hotel the occurrence took place has not been produced rather abandoned being witness of the same facts as PW Gandapur. If the complainant Gandapur, was not examined being won over, the witness of same facts namely Manzoor could have been produced, but the prosecution has withheld the best evidence and adverse inference can be drawn, that if he is produced he would also have not i,l "i lit.

supported the prosecution version, as that of the complainant.

t9 Mere fact that single accused is charged is not an absolute rule regarding his guilt, rather it is bounden duty of the prosecution to firstly establish presence of the witness who has allegedly seen the accused and secondly to believe the testimony of eye witnesses, requires strong independent corroboration to prove guilt of the accused. In the present

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case, the alleged eye-witnesses have not been produced rather np :g shatra.r $.iirl;i Cn'i'I'i abandoned, which gives a serious blow to the prosecution L. .-it

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case' when there is no ocular account or circumstantial chain

to connect the accused with the commission of offence, mere

comoborative evidence in shape of recovery of crime empty,

blood stained clothes, site plan, post mortem report, is of no

help to the prosecution case.

20 Recovery of one crime empty of 30 bore from

the spot is concerned, it is of no use to the prosecution

because no weapon of o&,1!. has been recovered, same is

the situation of motive which is a doubre edge weapon, cuts

either way.

21.It is evident from the record that appellanV accused Nazak remained absconder for a sufficient rong time.

In this part of the country peopre do abscond not because

they are guilty, but.because of fear and torture of the police.

Even otherwise absconsion is not substantive piece of t

evidence, it is a corroborative piece of evidence and in cases

where direct evidence fails, corroborative piece of evidence

is of no avail, as in the instant case, where the evidence of

have been disbelieved being defective, while A1,f*$T.OeYe-wttness

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abscondence can neither cure the inherent defect of the ocular account nor by itself is sufficient to sustain conviction. In this respect reference can be made to case "Istam Badshah and There are

plethora of judgments of the august Supreme court that the abscondance per se is not proof of the guilt of an accused person and in which respect wisdom can also be drawn from the case "Rasool Muhammad vs Asal Muhammad and 3 ethers" (1995 SCMR 1 373). Again reference can be made to case ura an an Vs State' 003

cr- L J 1295) lPeshawar], where it has been held that in the absence of any other corroborative evidence, evidence of abscondence, even if found convincing would not be sufficient by itself to warrant conviction of accused on a charge of murder.

22 It is the centuries old principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow ofdoubt. Ifany reasonable doubt arises in the prosecution case, the benefit of the same must be Ali tsu t sr'

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extended to the accused not as a grace or concession, but as a matter of right lest no innocent be punished.

23 Likewise, it is also well embedded principle of criminal justice that th'ere is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind is sufficient for acquittal of the accused. Reliance is placed on case law " Pervaz Vs the State" 995 SCMR r34s).

The same principle has been reiterated by the Hon,ble Supreme Court in Muhammad Akram,s case (2009 SCMR 230, wherein it is held that:

"13. The nutshell of the whole discussion is that the prosecution case isinotfreefrom doubt. It is an uxiomattc principle of law that in cas'e of doubt, the bene/it there,of must accrue in favour of the accused as matter of right ancl not of grace. It was observed by this Court in the case of Thriq Pervez v. The State IggS SCMR t34S that for giving the benejit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is ATTESTETT circumstance which create reasonable doubt in a prudent mind about the guilt of the accused, I,tili"lO,?

t-E$rl"_.l,;ria:f I.ii gh Court then the accused would be entitled to the benefit t)-i.,r{h illt ({er;r:fr i

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of doubt not as a matter of grace and concession but as a matter of right.,,

24.The learned trial Court has erred in law by eonvicting appellant on the basis of such a weak type of evidence. It would not be safe to maintain conviction on the basis of such shaky and scanty evidence. consequentry, appeal is allowed appellant/convict Nazak is acquitted while i., murder reference is answered in negative, vide our short order of the even date, which is reproduced as below "For the reasons to be recorded later, Criminal Appeal No.35-D/2016 is accepted, the impugned judgment of conviction and sentence dated 06.06.2016 recorded by learned Sessions fudge, Tank is set aside and the appellant Nazak is acquitted of the charges levelted against him in

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this case. He shalt be set free forthwith if not ,,,1 :.,.t t., I , ii I il required in any other case. l' t,i ',i t

2, Murder reference No.5-tt/2016 is answered tl iri

in negative."

Announced.

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