Shahzeb vs State etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.A. No.647-P/2013

Date of hearing: 03.03.2015

Appellant (s) : Shah Zeb by Mr. Muhammad Saleem Khan, Advocate.

Respondent (s) : Syed Inayat Ali Shah Bach, Advocate for complainant and the State by Mian Arshad Jan,

AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- At a trial held by learned Additional Sessions Judge-IV, Mardan, appellant Shah Zeb son of Ayub aged about 35/36 years, was found guilty for murder of Safdar deceased, thus, vide judgment dated 06.12.2013, was handed down sentence of death with a fine of Rs.1,00,000/- to be paid as compensation to LRs of the deceased in terms of S.544-A Cr.P.C. He was further convicted under section 13 of the Arms Ordinance, 1965 to undergo 03 years imprisonment and to pay a fine of Rs.20,000/- or in default thereof to undergo 03 months S.I. further. Benefit of section 382-B Cr.P.C. has been extended to him.

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2.The appellant has questioned his conviction and sentences through the instant appeal as well as Cr.A. No.648- P/2013, while learned Trial Court has sent Murder Reference No.12-P/2013, under section 374 Cr.P.C., for confirmation of death sentence awarded to the appellant-convict.

3.As all above, are the outcome of judgments of the learned Trial Court dated 06.02.2013, in one and the same FIR No.372 dated 02.05.2011, registered under sections 302/109/34 PPC read with S.13 Arms Ordinance, 1965, Police Station Par Hoti, therefore, we propose to decide the same through this common judgment.

4.The prosecution case as divulging from First Information Report Exh.PA is that, on 02.05.2011, Muhammad Iqbal Mashwani ASI (PW.7), during patrol duty, on receipt of information about murder of a person, on Swabi road near “Tursokon Hotel” and attempt of the culprit to flee away from the spot, rushed there and after chase, nabbed him, who on query disclosed his name as Shah Zeb (appellant-convict herein). From his possession 30 bore pistol No.B9231 having three live rounds in its magazine, giving fresh smell of *M.Siraj Afridi P.S. D

discharge, was recovered. In the meantime, Sultan Wali (PW.1), father of Safdar deceased reported him that he was present with his deceased son on the crime spot, when in the meantime, the arrested accused duly armed with pistol came there and opened fire at his son, with which he was hit and died on the spot; that after commission of the offence the accused was trying to flee away, but was overpowered by you.

He alleged that he is fully satisfied that arrested accused committed the murder of his son at the abetment and instigation of Rizwan and Gul Zada (absconding co-accused), with whom he has strained relations. In addition to complainant, the incident is stated to have been witnessed by PWs Maqsood and Saeed. Report of the complainant was recorded in the shape of murasila Exh.PA on the basis of which FIR No.373 dated 02.05.2011 under sections 302/34/109 PPC read with S.13 of the Arms Ordinance, 1965, was registered at Police Station Par Hoti, District Mardan.

5.Muhammad Iqbal Khan Mashwani ASI (PW.7) prepared injury sheet and inquest report of the deceased Exh.Pw.7/1 and Exh.PW.7/4, and shifted his dead body to the *M.Siraj Afridi P.S. D

mortuary for autopsy under the escort of Manzar Ali FC No.2642.

6.Dr. Nazir Ahmad SMO (PW.8), conducted autopsy on the dead body of the deceased on 02.05.2011 at 05.30 p.m.

and found the following injuries on his person:-

1.Firearm entry wound size 1⁄2 cm x 1⁄2 cm at right temporal region.

2.Firearm entry wound size 1⁄2 cm x 1⁄2 cm on occipital region.

3.Firearm exit wound on left mandible region size 1 cm x 1 cm.

4.Firearm exit wound on right mandible region size 1 cm x 1 cm.

Opinion: According to opinion of the Medical Officer, cause of death was firearm injury causing damage to vital organs resulting severe haemorrhage shock and death. Probable time between injury and death has been given as “15 minutes” while between death and Post-mortem as “within 02 hours”.

7.Faiz Muhammad Khan SI (PW.10) conducted investigation in the case. He proceeded to the spot, prepared site plan Exh.PB, at the instance of eyewitnesses Maqsood and Muhammad Iqbal Khan ASI. During spot inspection, he secured blood stained earth from the place of the deceased Exh.P.1 *M.Siraj Afridi P.S. D

and 3 empties of 30 bore pistol, vide recovery memo Exh.PW.10/1. Vide recovery memo Exh.PW.10/2, he took into possession the last worn bloodstained garments of the deceased, sent by doctor from the hospital. On the pointation of the accused he prepared pointation memo Exh.PW.3/1, sent the bloodstained articles and empties along with pistol to the FSL, initiated proceedings under sections 204 and 87 Cr.P.C.

against the absconding co-accused, recorded statements of the PWs and that of the accused under section 161 Cr.P.C. and after completion of investigation, handed over the case file to SHO, who submitted challan against the accused.

8.On receipt of challan by the learned Trial Court, appellant was summoned and formally charge sheeted, to which he pleaded not guilty and claimed Trial. To bring home the guilt of appellant, prosecution examined as many as ten witnesses. After closure of the prosecution evidence, statement of the 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 sentence the appellant as mentioned above.

9.Learned counsel for the appellant argued that appellant is innocent and has been falsely implicated in the case on mere suspicions; that it is an unseen occurrence and Sultan Wali (complainant) and Maqsood, the alleged eyewitnesses had been procured, later on, who have badly failed to establish their association with each other and presence with the deceased at the time of incident through some strong physical circumstances; that both these PWs blowing hot and cold in the same breath about their association and presence with the deceased, have totally shattered the prosecution case, hence, their testimony suffering from material contradictions and discrepancies cannot be believed; that had they been present on the spot, they would have been cited as identifiers of the dead body; that testimony of PW Muhammad Iqbal Khan ASI, who allegedly arrested the appellant and PW Manzar FC No.2642, who stood marginal witness to the recovery memo, are contradictory with *M.Siraj Afridi P.S. D

each other as well as with the testimony of alleged eyewitnesses; that it seems very strange that PW Muhammad Iqbal Khan ASI, who belongs to Preventive Police, was also in possession of injury sheet and inquest report, on prescribed proformas, which he allegedly prepared on the spot; that inquest report also does not bear necessary detail of the case;

that the alleged recovery pistol is planted one just to strengthen the prosecution case; that the peculiar facts and circumstances of the case, strongly prove that the occurrence has not taken place in the mode and manner as alleged by the prosecution; that the alleged crime empties have been sent to the FSL with a delay of nine day, for which no plausible explanation has been furnished by the prosecution, therefore, the positive FSL report would not advance the prosecution case. He contended that as there is no direct evidence, therefore, mere recovery of blood from the spot, crime empties and autopsy report as well as positive FSL reports, being confirmatory and corroborative pieces of evidence, will not be sufficient in isolation to prove the guilt of the appellant. He contended that prosecution has miserably failed to bring home *M.Siraj Afridi P.S. D

the guilt of the appellant through cogent and confidence inspiring evidence, therefore, the impugned judgment being based on surmises and conjectures, is liable to be set at naught and murder reference to be answered in negative.

10.Conversely, learned AAG assisted by learned counsel for the complainant contended that appellant has been arrested red handed on the spot by the local police along with crime pistol, after committing the murder of the deceased; that eyewitnesses have successfully established their presence on the spot and their association at the time of incident with each other, being close relative inter-se, does appeal to a prudent mind; that defence has failed to shatter their testimony during cross-examination; that ocular account of the incident is further corroborated by positive report of the FSL about recovered crime empties from the spot and pistol recovered from the appellant at the time of his arrest and similarly, positive report of the Serologist qua the bloodstained articles and autopsy report of the deceased according to which he met unnatural death due to firearm injuries are the strong pieces of evidence, corroborating the ocular account. They while supporting the *M.Siraj Afridi P.S. D

impugned judgment, sought dismissal of the appeal and requested for confirmation of sentence of the appellant.

11.We have considered the exhaustive arguments of learned counsel for the parties, learned AAG for the State and perused the record with their valuable assistance.

12.Record depicts that this untoward incident took place on Mardan Swabi road near “Tursakon Hotel”, lying at a distance of 1/2 Kilometers from Police Station Par Hoti Mardan.

According to version of the complainant on the fateful day at relevant time, he was present with his son Safdar deceased, when in the meantime, appellant came there and shot dead his son, who while decamping from the spot was arrested by Muhammad Iqbal Khan Mashwani ASI (PW.7) along with crime weapon; that PW Muhammad Iqbal also recorded his report on the spot Exh.PA/1. The incident is stated to have been witnessed by PWs Maqsood and Saeed, out of whom PW Maqsood also endorsed the report of the complainant.

13.Muhammad Iqbal Khan Mashwani ASI appeared as PW.7. In his examination-in-chief he deposed that on the fateful day during patrol duty he saw a person along with pistol *M.Siraj Afridi P.S. D

running, who after chase was arrested by him and that he came to know about commission of murder of the deceased Safdar by the arrested accused. He deposed that he recovered pistol from his possession, prepared his arrest card, drafted murasila Exh.PA/1 on the report of complainant, and after preparing injury sheet and inquest report of the deceased, shifted his dead body to the mortuary for postmortem examination. He did not utter a single word about receipt of any information about the incident as stated by him in the murasial. He failed to disclose the place of receipt of information, the name of informer, source of information and the time in which he reached the spot. Constable Manzar, marginal to recovery memo Exh.PW.7/2, vide which Muhammad Iqbal Khan ASI, allegedly recovered and took into possession 30 bore pistol from the appellant introduced totally new events by deposing that they were present on the spot when in the meanwhile, a person fired at another, who died and after that Thanidar handed over him his dead body which he shifted to the hospital. This witness did not disclose about presence of complainant and PWs Maqsood and Saeed on the *M.Siraj Afridi P.S. D

spot. Besides, he himself and PW Muhammad Iqabal have been shown eyewitnesses of the incident but such is not the case of the prosecution. PW Muhammad Iqbal has not stated anything about commission of the offence in their presence. PW Muhammad Iqbal Khan ASI, prepared injury sheet and inquest report of the deceased on the spot. In cross-examination he admits that during the days of occurrence he was performing his duties in operational staff having no concern with the investigation Branch. He being official of the operational staff, availability of inquest report and injury sheet with him on the spot, does not appeal to judicial mind. Besides, the inquest report does not bear the necessary details of the incident including the time of occurrence. One Nazir and Muhammad Ajmal Shah, residents of Mohib Banda have been cited as identifiers of the dead body and according to PW Muhammad Iqbal ASI, Mohib Banda is at a distance of 5 Kilometers from the spot. Both these witnesses have not been shown present on the spot neither by the complainant nor by PW Muhammad Iqbal ASI, then how they reached the spot soon after the incident, covering 5 Kilometers distance and why complainant *M.Siraj Afridi P.S. D

and PWs Saeed, Maqsood, who allegedly were present on the spot, were not cited as such. This is another crucial aspect of the incident which disturbs a prudent mind, about the mode and manner of the incident, presence of the alleged eyewitnesses on the spot and the proceedings allegedly conducted therein.

14.A look over initial report of the complainant in the shape of murasila Exh.PA/1 reveals that he has not mentioned detail story of the incident. He just narrated that was present with his deceased son when in the meantime, a young boy came there and shot dead his son, who was arrested by PW Muhammad Iqbal and that the incident has also been witnessed by PW Maqsood and Saeed, but during trial when he appeared as PW.1 he introduced a detail story, that on the day of occurrence his son Safdar had gone to Mardan bazaar to repair Flyhing Coach; that he along his nephews PWs Maqsood and Saeed, went after him to get some money from him for purchase of house hold articles; that when they reached the mechanic shop, his son Safdar was standing outside of (Mistry Khana); that a person came near his son and opened fire at *M.Siraj Afridi P.S. D

him; that he followed the accused to caught hold of him, but he aimed his pistol at him and warned him not to come near;

that police present near the spot encircled and arrested him along with pistol; that he came towards his deceased son, put him in Flying Coach and took him to the hospital; that he told police that his son had been murdered by the accused arrested by them, who recorded his report, which besides him, was also signed by PW Maqsood. This detail story has never been put forth by the complainant in his initial report, which seems to be after thought to make his statement believable, but in cross- examination he totally shattered his own version by deposing that he was called through mobile phone by a person that his deceased son had been injured and he should reach him; that when he reached the spot, his son was shot dead in his presence by the accused facing trial. This piece of statement of the complainant totally de-shapes the structure of the prosecution case, which clearly proves that he was not present with the deceased, and came to know about the incident on information through his mobile. When learned counsel for the complainant and learned AAG for the State were confronted *M.Siraj Afridi P.S. D

with this piece of statement of the complainant, they could not defend this aspect of the prosecution case to satisfy the judicial mind through plausible explanation, rather according to them, the same being a minor contradiction was ignorable. The incident has not been registered in the FIR, rather through murasila, a blank paper, which can be easily prepared, torn and again prepared, at any time by inserting any story and making any person as eyewitness, after thought, deliberation and consultation. It has been held by the apex Court in so many judgments that the F.I.Rs, which are not recorded at the Police Station suffer from the inherent doubts that those are recorded after consultation and deliberation. Reliance may be placed on case titled, “Allah Bachaya and another vs the State” (PLD 2008 SC 349). Moreso, the story of the complainant that he along with PWs Maqsood Ali and Saeed, left their village to purchase house hold articles in Mardan Bazaar and that since he was not having money, therefore, he went after his deceased son to workshop to collect the same from him, does not appeal to a prudent mind, because complainant as well as PW Maqsood have admitted in their statements that the *M.Siraj Afridi P.S. D

articles which they wanted to purchase in the Bazaar, were easily available in their village shops. So if those articles were available in the village shops, what compelled the PWs to put themselves in trouble by proceedings to Bazaar. It also does not appeal to our mind that complainant was not having money in his pocket and for collecting the same, he proceeded after his son to the workshop. Even for the sake of argument if we admit that he was not having money in his pocket, he could easily borrow the same from his nephew PW Maqsood Ali, who had visited village from Dubai few days prior to the incident. If PW Maqsood Ali too was not having any money, the complainant could borrow it from PW Saeed, instead of visiting his son who was in workshop. This story of the PWs is cooked one just to make believable their association with each other and their presence on the spot. Neither, mechanic of the alleged workshop nor anybody else from the nearby shops, where the deceased had taken his Flying Coach, has been examined in support of presence of the PWs with the deceased on the spot. The alleged Flying Coach has also not been taken into possession nor has anything been brought on record to *M.Siraj Afridi P.S. D

prove ownership of the deceased about any such Flying Coach.

From the above discussed facts and circumstances of the case, it can be safely concluded that the PWs were not present on the spot with the deceased at the time of incident rather they are procured.

15.PW Maqsood Ali appeared as PW.2. In cross- examination he did utter about presence of abandoned PW Saeed, with them. He deposed that on the fateful day at about 3.00 p.m., he came out from his house to purchase articles and went to the house of complainant and told them that if they need any article, he could bring for them, but complainant told him that he wants to accompany him to the bazaar to purchase articles; that they all came in Rickshaw to bazaar. Certain new events has been introduced by this witness during his cross- examination which he had never stated in his statement recorded under section 161 Cr.P.C., with which he was confronted during his statement, therefore, amounts to dishonest improvements just to bring in line his testimony with the complainant and other circumstances of the case.

Complainant Sultan has not stated a single word about visit of *M.Siraj Afridi P.S. D

PW Maqsood to his house and inquiring from him about need of any articles. Both the alleged eyewitnesses deposed that after commission of the offence, they put the dead body of the deceased in Flying Coach, so in such exercise their hands and clothes should have been smeared with the blood of the deceased, but neither they have shown their hands nor clothes to the I.O. to establish their presence on the spot with the deceased. Had complainant and PW Maqsood present with the deceased, they would have definitely identified his dead body, but contrary to it identifiers of the dead body of the deceased are two other persons from village Mohib Banda, lying at a distance of 5 Kilometers from the spot. All these peculiar facts and circumstances of the case squarely establish that the alleged eyewitnesses were not present on the spot at the time of incident, rather they have been procured, later on, therefore, their testimony, which otherwise, is suffering from material contradictions and discrepancies, cannot be believed and relied upon.

16.As regard positive FSL report qua the alleged recovered crime pistol and empties from the spot, suffice it to *M.Siraj Afridi P.S. D

say that the recovered pistol has not been sealed on the spot as evident from the murasila and admission of PW Muhammad Iqbal ASI that “he has not mentioned in the murasila that the pistol was sealed on the spot”. Besides, the pistol and empties have been sent to the FSL on 11.05.2011 i.e. after a delay of about 09 days, for which no plausible explanation has been furnished by the prosecution to determine as to whether the pistol and empties were in safe hand during this period. In absence of any evidence qua safety of the empties and pistol, the positive FSL report, would lose its authenticity. Besides, such like recoveries are always considered as corroborative pieces of evidence, which cannot be substitute of direct evidence. Rather, such like pieces of evidence are always taken into consideration alongwith direct evidence. Similarly, positive Serologist Report qua bloodstained articles as well as autopsy report of the deceased, would only be sufficient to prove the unnatural death of the deceased with firearm on a particular place, but by whom, it never tell the name/names of the culprit/culprits in absence of direct evidence. In the instant case as we have disbelieved the direct evidence, therefore, *M.Siraj Afridi P.S. D

these corroborative pieces of evidence by no stretch of imagination would sufficient to bring home the guilt of the appellant. Guidance may be derived from Riaz Ahmed’s case (2010 SCMR 846). As per the dictum of 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 and Asadullah’s case (PLD 1971 SC 541). It has been held by the apex Court in case titled, “Saifullah Vs the State” (1985 SCMR 410), that when there is no eyewitness to be relied upon, then there is nothing, which can be corroborated by the recovery. Similarly, in case titled, “Riaz Masih Vs the State” 1995 SCMR 1730, the honourable apex Court held that recovery of crime weapon by itself is not sufficient for conviction on murder charge. In case of Siraj Vs Crown (PLD 1956 Federal Court 123), it has been held that recovery of handle of blood-stained hatchet at the instance of the accused, when other evidence was disbelieved, then it was not enough for conviction. The same view has *M.Siraj Afridi P.S. D

been expressed by the apex Court in Saifullah’s case (1985

SCMR 410).

17.For what has been discussed above, prosecution has miserably failed to prove the incident in the mode and manner as alleged and to connect the appellant with the offence of murder of the deceased through cogent and confidence inspiring evidence beyond shadow of doubt and thus, the learned Trial Court, by not appreciating the evidence, in its true perspective reached to a wrong conclusion by holding the appellant guilty of murder of the deceased. The prosecution evidence is pregnant with doubts about murder of the deceased by the appellant, benefit of which is to be extended to the accused/appellant as according to golden principle of benefit of doubt; one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of *M.Siraj Afridi P.S. D

the accused. The said rule is based on the maxim “ it is better that ten guilty persons be acquitted rather than one innocent person be convicted” which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”. Wisdom in this regard can also be derived from the judgments of the apex court in case titled, ”Muhammad Khan and another Vs the State” (1999 SCMR 1220) and case titled, “Muhammad Ikram Vs the State” (2009 SCMR 230).

18.As regard recovery of pistol from possession of the appellant, the prosecution to this effect has not shattered the prosecution evidence, therefore, the learned trial Court has rightly convicted and sentenced the appellant under section 13 of the Arms Ordinance.

19.Resultantly, we allow this appeal, set aside the convection and sentences of the appellant recorded and awarded by the learned Trial Court under section 302 (b) PPC, vide impugned judgment dated 06.12.2013, and hereby *M.Siraj Afridi P.S. D

acquit him of the charge of murder. However, his conviction and sentence under section 13 of the Arms Ordinance, is maintained, resultantly, to this effect his Cr.A. No.648- P/2013, titled, “Shah Zeb Vs the State” stands dismissed.

Murder Reference No.12-P/2013, sent by the learned Trial Court for confirmation of the death sentence, is answered in Negative.

These are reasons of our short order of even date.

Announced.

JUDGE

JUDGE

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maintained that the learned Trial Court has the jurisdiction to entertain the suit and in case of decision of issue of the jurisdiction in favour of the petitioners, after conclusion of trail, it would be respondent to suffer and she is ready to face the consequences of such scenario. He while supporting the impugned orders, sought dismissal of the instant petition.

5.Come what may, the issue raised, being a mixed question of law and fact, can properly be resolved, after recording pro and contra evidence of the parties by the learned Trial Court. In view of the above, the impugned orders of both the courts below are set aside and the matter is remanded to the learned Trial Court with the direction to frame a specific issue (qua) jurisdiction, if already not framed, to afford an opportunity to the parties for leading their evidence and then to decide the suit on merits in accordance with law. The learned Trial Court shall conclude the trial as early as possible, but not later than 4 months, on receipt of the record. Office shall ensure *M.Siraj Afridi P.S. D

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