Rehmanullah vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.A. No.45-P/2013

Date of hearing: 12.06.2014.

Appellant (s) : Rehmatullah by Mr. Arb.Yasir A.Khan, Advocate.

Respondent(s) : Mr. Arshad Ahmad Khan A.A.G. for State and Mr. Astaghfirullah, Advocate, for complainant.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This criminal appeal calls in question the legality and propriety of judgment dated 17.01.2013, passed by learned Additional Sessions Judge-I, Charsadda whereby appellant Rehman Ullah has been awarded penalty of death as Ta’azir under section 302 (b) PPC for committing the murder of Tila Muhammad deceased and to pay Rs.1,00,000/- as compensation to his LRs in terms of section 544-A Cr.P.C., recoverable as arrears of land revenue, in case FIR *M.Siraj Afridi P.S. D

No.562 dated 05.11.2010, registered under sections 302/34 PPC, at Police Station Umerzai, District Charsadda. For confirmation of penalty of death, the learned Trial court has sent Murder Reference No.1-P/2013 under section 374 Cr.P.C.

2.As both, the appeal as well as Murder Reference, are arising out of the same judgment of the Trial court, therefore, we are going to dispose of both through this common judgment.

3.On 05.11.2010, Sami Ullah Khan ASI (PW.9), on receipt of information about presence of human dead body in the graveyard, near Dar-ul- Uloom), rushed there. Khyal Muhammad (PW.11), present on the spot with the dead body of his father Tila Muhammad, reported him that on the fateful day he had been to “Dar-ul-Uloom Umarzai” for offering Juma prayer, when he received information *M.Siraj Afridi P.S. D

about murder of his father. He attracted to the spot and found the dead body of his father lying in a pool of blood, being murdered by some unknown culprit/culprits with firearm; that they have no enmity with any body, therefore, he charged unknown culprit/culprits for the offence. His report was incorporated in murasila Exh.PA/1, on the basis of which FIR, mentioned above was registered.

4.Sami Ullah Khan ASI (PW.9), prepared injury sheet and inquest report of the deceased and dispatch his dead body to hospital, where Dr. Anwar Saeed THQ hospital Tangi (PW.5) conducted postmortem examination of the deceased and found the following injuries on his person:-

1.Firearm entry wound of size 1⁄4 x 1⁄4 inch left side face.

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2.A firearm exit wound of 1⁄2 x 1⁄2 inch on the right side of neck.

As per opinion of the Medical Officer, the deceased died due to firearm injury to the main carotid arteries on the neck resulting in severe blood loss and shock. Probable time between injury and death has been observed to be 3 to 5 minutes while between death and postmortem upto 2 hours approximately.

5.During spot inspection the I.O. secured bloodstained earth from the place of the deceased, 4 crime empties of 30 bore and sent the same to FSL for Expert opinion. He also secured the last worn bloodstained garments of the deceased, sent by Medical Officer, after his autopsy. It was on 10.11.2010, when complainant recorded his statement under section 164 Cr.P.C. wherein he *M.Siraj Afridi P.S. D

charged appellant Rehman Ullah along with his co- accused Kiramat and Subhan Ullah alias Khanji (acquitted by trial court) for murder of his father and advanced the motive that deceased had witnessed appellant while committing theft in the house of his uncle Mehar Zada, which information was conveyed by the deceased to said Mehar Zada. He further added that appellant had extended threats to his father in his presence. Said Mehar Zada also recorded his statement under section 164 Cr.P.C.

wherein he alleged that deceased Tila Muhammad had informed him about commission of theft in his house by appellant Rehman Ullah, which annoyed the appellant with the deceased. Similarly, one Gul Muhammad recorded his statement u/s 164 Cr.P.C.

posing himself to be the was eyewitness of the occurrence.

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6.After arrest of all the three accused, challan was submitted against them before the Trial Court, where they were formally charge sheeted to which they pleaded not guilty and claimed trial. To bring home 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, acquitted co-accused Kiramatullah and Subhan Ullah alias Khan Jee, however, convicted and sentenced appellant Rehman Ullah, as mentioned above.

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7.Learned counsel for the appellant argued that it is a case of no eyewitness; that complainant in his initial report has categorically stated that having no enmity with any one he charge unknown culprit/culprits, therefore, his belated statement record after five days of the incident, u/s 164 Cr.P.C.

introducing therein a concocted story/motive, being after thought without disclosing the source of information and satisfaction qua complicity of the appellant is not believable; PW Gul Muhammad is a procured witness keeping his unnatural conduct, who remained mum for sufficient days to narrate the occurrence before the I.O. or the complainant;

that he has not identified the assailants and identification parade conducted with delay had no sanctity in the eye of law. He added that his testimony also does not find corroboration from *M.Siraj Afridi P.S. D

medial as well as circumstantial evidence; that motive has not been proved through cogent and tangible evidence; that the learned Trial court has erred in law while convicting the appellant on the same set of evidence, on the basis of which, he acquitted co-accused, whose role was no more different with the appellant; that prosecution evidence is pregnant of doubts, benefit of which is to be extended to the appellant and he be acquitted.

8.Conversely, learned counsel for the complainant contended that prosecution has proved the guilt of appellant through cogent and confidence inspiring evidence; that belated statement of the complainant depicts his bona fide intention that he was not interested in charging innocent persons and when he was satisfied he charged the appellant; that *M.Siraj Afridi P.S. D

eyewitness Gul Muhammad has furnished true account of the incident and he has identified the accused in identification parade; that his testimony is supported by medical as well as circumstantial evidence; that motive has been proved by the prosecution by producing Mehar Zad, who is the real uncle of appellant; that FSL reports qua bloodstained articles and empties further strengthen the prosecution version. He argued that prosecution has successfully proved the guilt of the appellant through cogent and confidence inspiring evidence, therefore, the learned Trial court has rightly convicted and sentenced him for the offence.

9.Learned A.A.G. while adopting the arguments of learned counsel for the complainant supported the impugned judgment and sought confirmation of death sentence of the appellant.

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10.We have given our anxious consideration to the respective arguments of learned counsel for the parties and perused the record with their able assistance.

11.On the face of record, it was on 05.11.2010, when Tila Muhammad was found murdered with firearms, in graveyard near religious school of Umar Zai, known as Dar-ul-Uloom Umar Zai. On the same day the incident was reported by Khial Muhammad, son of the deceased, wherein he did not charge any body by name. On the same day no body come forward to furnish the ocular account of the incident. On 10.11.2010, after five days of the occurrence, complainant recorded his statement under section 164 Cr.P.C. wherein he charged the appellant along with his acquitted co-accused.

Perusal of his statement u/s 164 Cr.P.C. reveals that *M.Siraj Afridi P.S. D

he has not furnished the source of his satisfaction about involvement of the accused/appellant. The relevant part of his statement in this regard is reproduced below:-

“I was searching for the accused, now I have satisfied myself that my father was killed by Kiramat son of Zardar ullah, Subhan Ullah alias Khanji, Rehman Ullah son of Kiramat r/o Sarwar Abad Umarzai. Motive behind the occurrence is that before the said occurrence, accused Rehman Ullah committed theft from the house of his uncle, namely, Mehar Zada, who is our neighbor.

Accused Rehman Ullah was seen by my deceased father when he was *M.Siraj Afridi P.S. D

jumping through the wall of Mehar

Zada after committing the

occurrence. My deceased father

narrated the whole story to Mehar

Zada, on which, the accused was

annoyed. The accused mentioned

above had also given threats to my

deceased father in my presence.

Now I charge all the accused named

above for commission of offence”.

The bare reading of statement of complainant clearly shows that neither he has given the source of his satisfaction about involvement of the appellant nor has he asserted a single word about the motive and threats in his initial report. Had there been any such motive and threats, he could easily narrate the same to scriber of his report, though he does not *M.Siraj Afridi P.S. D

charge the appellant by name. During trial he was examined as PW.11 wherein he has reiterated the same version set forth by him in his initial report and statement under section 164 Cr.P.C., however, in his cross-examination he categorically admitted that prior to the present occurrence they had no enmity or ill will with anyone. He further admitted that they had good terms with the accused prior to the occurrence. He further admitted the non- mentioning of motive in his report. Regarding motive he deposed that for the said theft in the house of Mehar Zada, appellant Rehman Ullah was nominated, but the matter was patched up with said Mehar Zada.

12.Mehar Zada, whose statement was also recorded under section 164 Cr.P.C. wherein he supported the motive as alleged by the complainant, *M.Siraj Afridi P.S. D

appeared as PW.12. In his examination in chief he stated about theft in his house by appellant Rehman Ullah in which 2 1⁄2 tolas gold ornaments and Rs.40,000/- were allegedly stolen away. He deposed that by disclosing the name of appellant before him by the deceased, appellant was annoyed with the deceased. But in cross examination he deposed that regarding the said theft he had not lodged any report in Police Station, which does not appeal to a prudent mind. He deposed that the matter was resolved by Jirga members, but he does not remember about his signature or thumb impression on any Jirga verdict to this effect. On the basis of statements of both the aforesaid witnesses the prosecution has failed to prove the alleged motive.

No jirga verdict in black & white has been produced/exhibited during trial. No alleged Jirga *M.Siraj Afridi P.S. D

member has been examined before the court or by the I.O. during investigation, who allegedly resolved the matter of theft between the deceased and the deceased. No doubt, motive is not required to be proved in each and every case, but once it has been set up by the prosecution, non-proof of the same would be fatal for the prosecution. In the instant case, the prosecution ought to have proved the same because the complicity of the appellant has been made for murder of the deceased entirely on the said motive, but the prosecution failed to prove the same, which would definitely be fatal for its case.

13.The entire case of the prosecution hinges upon the testimony of one Gul Muhammad, who later on, introduced himself to be the eyewitness of the occurrence and his statement was recorded *M.Siraj Afridi P.S. D

under section 164 Cr.P.C. on 23.11.2010 i.e. after seventeen days of the occurrence. In his said statement he has charged three un-known accused for committing murder of the deceased in his presence with firearms and deposed that he could identify them, if brought before him. We would like to reproduce his statement for convenience:- “Stated that, on the day of

occurrence, I, had come to my

relative’s home, in village Sarwar Abad Umarzai. I was going to

perform Juma prayer. When I

reached graveyard near Dar ul

Uloom Umarzai, three duly armed

persons came and made firing on

one person and he died on the spot.

The occurrence was seen by many

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people available at the relevant time. Later on, I came to know that the name of deceased was Tila Muhammad son of Faiz Muhammad r/o Sarwar Abad Umarzai. I had seen the accused at that time but I was not familiar with their names. After the occurrence, I went to my home.

But my conscience did not leave me with calm and patient. Therefore, I visited Police Station Umarzai and narrated the whole story to them.

The local police of Police Station Umarzai had arrested two accused in the case. And I correctly identified the arrested accused in Sub-Jail Charsadda in identification parade in *M.Siraj Afridi P.S. D

the presence of Illaqa Judicial

Magistrate. The names of the

accused are Kiramatullah s/o Zard Ullah and Farman Ullah alias Kanji son of Kiramat r/o Sarwar Abad. I correctly identified them and they are the persons who killed Tila

Muhammad. The accused were also

accompanied with another person, if he is brought before me, I can

identify him. Today I recorded my statement with my sweet will and there is no pressure upon me”.

Thorough perusal of statement of Gul Muhammad referred to above reveals that he has disclosed about three duly armed persons, but in last of his statement while specifically naming the acquitted *M.Siraj Afridi P.S. D

co-accused, deposed that those were the accused, who committed the murder of the deceased. The belated alleged ocular account of PW Gul Muhammad does not find corroboration from medical evidence as well as circumstantial evidence in the shape of recovery of crime empties from the spot. He has attributed general role of firing to all the three accused whereas according to autopsy report of the deceased, there was only single entry wound with exist, which does not commensurate with the number of the accused. On the same set of evidence, two co-accused who had been attributed the same role as given to the appellant have been acquitted by learned Trial Court, against which neither the complainant nor the State has filed any appeal. There is no shred of evidence to distinguish the role of the appellant/convict from that the of *M.Siraj Afridi P.S. D

acquitted co-accused. The identification parade admittedly having been held without observing necessary formalities had no sanctity and identification of accused without description of their roles in the occurrence would lose its efficacy. In his statement under section 164 Cr.P.C. PW Gul Muhammad has not stated a single word about the features, texture and other details of the accused.

Moreover, identification test being a corroborative piece of evidence cannot form basis for conviction when substantive evidence stood discarded.

14.In the instant case the statement of PW GulMuhamamd is discrepant and pregnant with serious infirmities which cannot be relied upon and made basis of conviction of accused in absence of strong corroborative evidence which is lacking in the case. As regard recovery of pistol and matching of *M.Siraj Afridi P.S. D

crime empty with the same, being corroborative piece of evidence would not be sufficient by itself to prove commission of murder by the appellant in absence of substantive evidence. In view of the peculiar facts and circumstances of the case, it can be safely concluded that the occurrence is unseen while the corroborative evidence is so weak, untrustworthy that it cannot remove inherent defects in prosecution story.

15.From whatever angle the prosecution evidence is looked at, it does not inspire confidence and as such the charge against the appellant cannot be held to have been proved beyond any shadow of reasonable doubt. There being no satisfactory basis for upholding the conviction and sentence of the appellants, we allow this appeal, set-aside the conviction and sentence of the appellant recorded *M.Siraj Afridi P.S. D

by the trial Court vide impugned judgment and here by acquit him of the charge. He be set at liberty forthwith if not required in any other case. Death sentence awarded to the appellant is not confirmed.

Resultantly, Murder Reference is answered in the negative.

16.We had, by our short order dated 12.06.2004, allowed this appeal and acquitted the appellant for reasons to be recorded later. Above are the detailed reasons of our short order, read as under:-

“For reasons to be recorded later on, this appeal is allowed. The conviction and sentence of the appellant,

Rehmanullah, awarded to him in case F.I.R No.562 dated 05.11.2010 under sections302/34 P.P.C., Police Station Umarzai, Charsadda by learned

Additional Sessions Judge-I, Charsadda *M.Siraj Afridi P.S. D

vide judgment dated 17.01.2013, are set aside and he is acquitted of all the charges levelled against him. He be released from jail forthwith, if not required in any other case. The Murder Reference sent by the learned Trial Judge is answered in negative”.

Announced.

JUDGE

JUDGE

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