Abid Aziz Vs State

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Cr.A...No...72-A...of...2013.

JUDGMENT

Date of hearing..................03.05.2016................................. Appellant...(Abid Aziz) by Mr. Jalal-ud-Din Akbar-e-Azam Gara, Advocate...

Respondent(s)...(The State etc) by M/S Muhammad Naeem Abbasi, AAG and Abdur Razaq Chughtai, Advocate ......

QALANDAR ALI KHAN, J:- Since this

criminal appeal under section 410 Cr.P.C and Criminal Revision under section 435/439 Cr.P.C arise out of the same case vide F.I.R. No.192 dated 08.04.2011 under section 302 PPC Police Station Saddar, Haripur, the single consolidated judgment in the instant appeal shall also dispose of Criminal Revision No.27-A/2013.

2.The instant appeal has been lodged by convict-appellant, Abid Aziz against the

judgment of learned Additional Sessions Judge- III, Haripur, dated 08.04.2013, whereby he was convicted under section 302(b) PPC as Tazir and sentenced to life imprisonment, with fine of Rs.200,000/-as compensation under section 544-A Cr.P.C and benefit of Section 382-B Cr.P.C.

The said related revision petition (Cr.R No.27-A/2013) has been moved by Muhammad Miskeen, father of deceased Muhammad Shahbaz for enhancement of punishment from one of life imprisonment to death and also for enhancement of compensation under section 544-A Cr.P.C.

3.The F.I.R. was lodged on the report of the deceased, then injured, Muhammad Shahbaz in the Emergency Ward of DHQ Hospital, Haripur at 20.55 hours on 08.04.2011 to the effect that he alongwith Abdul Mateen were busy in conversion on the Railway Track near Railway Station Sarai Saleh, when at 8.30 PM Abid son of Aziz ur Rehman Kashmiri, convict- appellant, came and started abusing him and

when he asked the reasons for using abusive language by him, he took out pistol and opened fire at him which hit him on chest and right leg.

The appellant then made good his escape.

There was no motive for the occurrence, and the said Abdul Mateen was mentioned as eyewitness in the F.I.R. The F.I.R. was registered on the basis of Murasila which was thumb impressed by deceased Muhammad Shahbaz and signed as rider by the said Abdul Mateen. The complainant succumbed to the injuries at Baldher while on his way to Abbottabad.

4.During spot inspection, the I.O.

recovered four empties of 30 bore, a Nokia mobile phone and two energy savers from the spot, without any blood stains from the place assigned to the deceased in the site plan. The medical examination and then postmortem examination of the deceased complainant confirmed one firearm entry wound on left side of chest measuring about 11⁄2 cm with bleeding

and corresponding exit wound on right side of back measuring about 21⁄2 cm with bleeding and another firearm entry wound on achilles tendon of right foot measuring about 1/2 cm with bleeding and corresponding exit wound in lateral aspect of right ankle joint. In the P.M report, the Medical Officer also noticed blackening on the first entry wound. In the opinion of the Medical Officer, the deceased received firearm injuries to the vital organs, liver and blood vessels of abdominal and thoracic region, leading to hemorrhage, shock and death. The probable time between injury and death was recorded about 40 minutes and between death and postmortem about 20 minutes. The convict/appellant was arrested on 13.04.2011 after he was declined pre-arrest bail and on his alleged pointation a 30 bore pistol was recovered from the bushes in the graveyard, which alongwith four crime empties recovered from the spot during spot inspection by the I.O. were sent to the Firearms Expert and

the result was received in the affirmative. It may be added here that although name of Tanveer was not mentioned as an eyewitness in the F.I.R., yet his name figured not only in the site plan prepared by the I.O. on 08.04.2011 but also in the statement of so-called eyewitness Abdul Mateen. The I.O. also got recorded statements of both Abdul Mateen and Tanveer under section 164 Cr.P.C on 15.04.2011. The mobile phone recovered by the I.O. from the spot during spot inspection was attributed to the convict/appellant. After completion of investigation, challan was submitted in the case on 26.04.2011, leading to commencement of trial against the convict/appellant.

5.The learned trial Court framed charged against the appellant under section 302 PPC to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution produced twelve P.Ws, including important P.Ws, namely, Doctor Mansoor Qasim, M.O DHQ Hospital, Haripur (PW-4); Muhammad Rafique IHC

(PW-5), scribe of the Murasila (Ex.PW 5/1) on the report of deceased-complainant; Qaiser (PW-7); eyewitness mentioned in the F.I.R, Abdul Mateen (PW-9); and Mehboob Khan Inspector/I.O. (PW-11). After the prosecution closed its evidence, statement of the appellant was recorded under section 342 Cr.P.C, wherein he denied the allegations of the prosecution and also expressed his desire to produce defence evidence and to be examined on Oath under section 340(2) Cr.P.C; but later on recorded statement to the effect of not producing defence evidence or to be examined on Oath under section 340(2) Cr.P.C.

6.On conclusion of trial and after hearing arguments of learned SPP assisted by private counsel for the complainant and learned defence counsel, the learned trial Court/Additional Sessions Judge-III, Haripur, rendered the impugned judgment dated 08.04.2013, whereby the appellant was convicted under section 302(b) PPC and

sentenced to life imprisonment with payment of fine of Rs.200,000/- under section 544-A Cr.P.C and also benefit of section 382-B Cr.P.C.; hence the instant appeal and revision for enhancement of the sentence of life imprisonment to that of death by father of the deceased complainant.

7.Arguments of Mr. Jalal-ud-Din Akbar Azam Khan Gara, Advocate, counsel for the convict/appellant and Mr. Muhammad Naeem Abbasi, Additional AG assisted by Mr. Abdur Razaq Chughtai, Advocate, counsel for the father of deceased-complainant heard, and record perused.

8.No doubt, a ‘dying declaration’ is an important piece of evidence but it is equally true that to accord the status of ‘dying declaration’ to a report by the deceased- complainant it is an essential pre-requisite to prove that at the time of making the report the deceased- complainant was fully conscious and capable of understanding the nature of his report and that

there was no external prompting at the time of lodging of the report by the deceased. In this case, neither certificate of the Medical Officer is available to show that the deceased- complainant was fully conscious and capable of understanding the nature of his report at the time of lodging the F.I.R. nor the Medical Officer has recorded factum of the consciousness of the deceased-complainant or his capability to understand the nature of his report on the injury sheet when he first examined the deceased at 08.55 PM on 08.04.2011, which is incidentally also the time of lodging of report in the Murasila. The deceased-complainant succumbed to the injuries on his way to Abbottabad and the same Medical Officer also conducted P.M examination of the deceased.

The M.O (PW-4) stated that condition of the deceased, then injured was serious. It is also in both report of the M.O. on the injury sheet and his P.M report that the injuries were bleeding which normally cause shock to the victim

and ordinarily making him unconscious and incapable to talk.

9.Another intriguing aspect of the case is that dimensions of both the entry wounds are different i.e. on left side of the chest measuring 11⁄2 cm and on achilles tendon measuring about 1/2 cm, which, in the opinion of the Medical Officer, might have been caused by different weapons, thus running counter to the version of the prosecution that the deceased-complainant was hit only with the firing of the convict/appellant with his pistol. Likewise, one of the firearm injuries on the left side of chest and other on the achilles tendon create doubt about the position of the deceased-complainant and convict-appellant who had been shown to be facing each other. Additionally, the presence of blackening on the firearm entry wound on left side of the chest from a distance of twelve feet between the deceased-complainant and the convict/ appellant tend to create doubts about the site plan, which is already shrouded with

doubts because of absence of blood at the place assigned to the deceased in the site plan, despite having been shown bleeding at the time of his first examination and even at the time of P.M examination. It is, indeed, something beyond comprehension that clothes of P.W Abdul Mateen remained unstained with blood despite his assertion to the effect that he lifted the deceased-complainant to the hospital on his shoulder, which also runs counter to the statement of Qaiser (PW-7) who deposed about taking the deceased, then injured, to the DHQ Hospital, Haripur, on the request of people gathered there, without mentioning the presence of Abdul Mateen PW. It is noteworthy that despite his alleged presence with the deceased-complainant, Abdul Mateen, is not identifier of the dead body either before the police or before the Medical Officer as the dead body was identified both before the police and the Medical Officer by other two persons

namely Muhammad Mushtaq (PW-8) and Gul Fayyaz.

10.The F.I.R. is totally silent about presence of light or energy savers lit on the spot at the time of occurrence but not only energy savers bulbs have been shown in the site plan but two energy savers bulbs were also taken into possession by the I.O. at the time of inspection of the spot. Likewise, there is no mention of the presence of Tanveer in the F.I.R., who was later introduced in the site plan by the I.O. as well as in the statement under section 164 Cr.P.C of Abdul Mateen; but the said Tanveer was abandoned by the prosecution being unnecessary, despite the fact that he was shown as an eyewitness and his statement also recorded under section 164 Cr.P.C during investigation. It needs no elaboration that once credibility of the rest of the material evidence in the case is shaken, the mere recovery of a 30 bore unlicenced pistol on the alleged pointation of accused while in police custody and positive

report of Firearms Expert after its examination with the empties recovered from the spot by the I.O. would not lend any credence to the otherwise doubtful case of the prosecution.

11.The Murasila bears thumb impression of the deceased-complainant and signature of Abdul Mateen as rider, but the deceased- complainant was reportedly an educated person and government employee. This fact considered in the light of statement of scribe of the Murasila, Muhammad Rafique, IHC (PW-5) to the effect that narrations were conveyed to him by Abdul Mateen about the occurrence and that he obtained his signature as rider would point toward external prompting. There is no escape from judging the case in the light of past conduct of PW Abdul Mateen who remained involved even in a case of unnatural offence lodged against him by Usman whose father and father of the deceased-complainant are brothers inter se and thus Usman was the first cousin of the deceased-complainant. This fact

cannot be overlooked that PW Abdul Mateen did not sustain even a scratch despite alleged firing by the convict/appellant from a distance of twelve feet mentioned by PW Mateen in the site plan, which becomes more suspicious in the absence of any motive for the commission of the offence on the part of the convict/appellant and absence of blood either on the spot or anywhere else including shoulder of PW Abdul Mateen. All these facts, considered in the light of material available on record, creates serious doubts about the commission of the offence by the convict/appellant, the benefit of which should have been extended to the appellant by the learned trial Court.

12.Therefore, the judgment of the learned trial Court and conviction and sentence of the convict/appellant are based on wrong appraisal of evidence available on record, which ought to be set aside by extending benefit of doubt to the convict/appellant. Consequently, on the acceptance of the appeal, the judgment

resulting in the conviction and sentence of the convict/appellant is set aside; and the convict/ appellant is acquitted of the charge under section 302(b) PPC. Resultantly, the revision petition for enhancement of the sentence by the father of deceased-complainant is dismissed.

The appellant be set at liberty, if not required in any other case.

Announced.

Dt.03.05.2016.

JUDGE

JUDGE

*\M.S.Awan/*