Fazal Rahim vs State etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

Cr.A. No. 90/2011 Date of hearing...21.1.2015

Fazal Rahim Vs The State & others.

Appellant(s) by Sahibzada Asadullah Advocate Respondent(s)/complainant by Mr. Rehman Ullah Advocate, Mian Arshad Jan AAG for the State.

ABDUL LATIF KHAN, J:- Through instant criminal appeal, the appellant has challenged the impugned judgment dated 25.1.2011, passed by learned Additional Sessions Judge-IV, Swabi, whereby the appellant involved in case FIR No.672 dated 26.8.2009, u/s 302 PPC, P.S.

Swabi, was convicted u/s 382-B PPC and sentenced to undergo life imprisonment (R.I) alongwith compensation of Rs.1,00,000/- u/s 544- A Cr.PC and in default thereof to further undergo Six months SI. Benefit of Section 382-B Cr.PC was also extended to the appellant/convict.

2.As per prosecution case, the

complainant Afsar Ali alongwith his cousin

Tauseef were going to the Clinic of Dr.

Muhammad Iqbal for bringing medicine for his aunt Mst.Nasreen and when they reached to the place of occurrence, there the appellant/convict duly armed was standing who on seeing the complainant party, started firing at Muhammad Tauseef as a result of which he was hit and died on the spot. The appellant after the occurrence decamped from the spot while complainant took the dead body of deceased to the P.S, where on the basis of his report FIR mentioned above was registered against the appellant/convict.

3.After completion of investigation, initially challan u/s 512 Cr.PC was submitted however after arrest of appellant, supplementary challan was submitted against him in the trial Court where in order to prove its case, the prosecution examined the following 12 PWs:- PW.1 Muhammad Ishfaq FC, arrested the appellant and produced him to the I.O; PW.2 Mushtaq Ali, identified the dead body of deceased being his brother before the local police as well as before doctor at the time of P.M.

examination; PW.3 Akbar Khan ASI is marginal witness to recovery memo Ex.PC vide which the garments of deceased as well as a sealed bottle containing a spent bullet recovered from the dead body of deceased; PW.4 Gohar Ali is marginal witness to recovery memo Ex.PC/1 vide which the blood stained pebbles were taken into possession by I.O, from the spot; PW.5 Meharda Ali Khan SHO registered the case vide FIR Ex.PA on the basis of report of complainant and prepared injury sheet ExPM and inquest report Ex.PM/1 of deceased and sent the dead body to the mortuary for P.M. examination; PW.6 Dr.Noorul Wahab conducted autopsy on the dead body of deceased and submitted P.M. report Ex.PM/2; Iftikhar Ali Shah DFC (PW.7) executed the process u/s 204 & 87 Cr.PC issued against the appellant; The ocular account was furnished by PW.8 Afsar Ali (complainant) and Mir Nawas (PW.9), who narrated the whole story about the mode, manner and place of the occurrence; PW.10 Fazlullah Khan SI has conducted investigation in the instant case; PW.11 Raza Khan ASI is marginal witness

to pointation memo Ex.PW.10/7 vide which the appellant has made pointation of the spot to the I.O; PW.12 Wahid Zaman FC had escorted the dead body of deceased to the mortuary and after conducting P.M. examination the doctor handed over to him the garments alongwith P.M.

documents and spent bullet recovered from the dead body, which he handed over to the I.O, in presence of marginal witnesses;

At conclusion of trial the learned trial Court vide impugned judgment convicted and sentenced the appellant, hence the instant Criminal appeal has been filed by the appellant.

Arguments heard record perused.

4.The prosecution case hinges upon the statements of complainant Afsar Ali (PW.8) and Mir Nawas (PW.9/eye witness) who were allegedly present on the spot with the deceased at the time of occurrence though the presence of PW.9 has not been mentioned in the initial lines of report of complainant in which he has only mentioned that he alongwith deceased were going for bringing medicine when the occurrence took

place but lateron he was spotted in the lower part of report to be the eye witness. Both the witnesses failed to justify presence of PW.9 at the time of occurrence as he resides in village Mari Payan, which is at a distance of 4/5 Kilometers from the spot. They failed to convince the Court as to what the PW.9 was doing at the time of occurrence nor any special occasion has been mentioned in the houses of complainant or deceased due to which PW.9 had come to the house of deceased being relative of complainant party, meaning thereby that he was a chance witness and in order to strengthen the prosecution case, he was inserted as eye witness though he was not companion of the complainant & deceased right from the house but accidently he was spotted in the FIR, therefore, keeping in view his status and being relative of complainant party, and also nature of motive, his testimony is to be appreciated with an extra degree of judicial care and caution. PW.9 being close relative of deceased, is living in a different village situated at about 4/5 kilometers and his stance about coming to the house of

deceased due to illness of his maternal aunt Mst.

Nasreen, is not established by him nor the complainant has mentioned this fact in his report that he was accompanying the complainant party for bringing medicine. In this respect statement of said Mst. Nasreen has also not been recorded so that the stance of alleged eye witness could be affirmed. Hence the eye witness was not only close relative of deceased but a chance witness and his presence near the deceased at the time of occurrence, being highly doubtful, his statement could not be whole-heartedly relied upon by without independent corroboration, which was not available.

5.There are also material contradictions in the statements of prosecution witnesses as according to PW.9, on the day of occurrence he had come to the house of deceased Tauseef but the complainant (PW.8) has not mentioned this fact in the FIR which is fatal to the prosecution case. As per FIR, the report was made by complainant at 19.45 hours but according to PW.2, he identified the dead body of deceased at

7.45/8.00 PM on the spot whereas according to doctor (PW.6) the time of P.M. examination has been shown as 8.15 PM which are serious contradictions regarding time, place of report and other proceedings by the police, creating doubt in the prosecution case. According to PW.9, his statement was recorded by the I.O, in the P.S. at 7.45 PM whereas according to PW.10 (I.O) he recorded statement of eye witness (PW.9) at 9.30 PM on the spot which is a serious contradiction in their statements, damaging the foundation of prosecution case. According to I.O, the PW.9 had also not disclosed the object of his presence on the spot to him nor the medicine prescription etc were produced to him by the complainant which creates serious doubt in the prosecution case.

6.Admittedly the injury sheet and inquest reports were prepared by the reporting officer (PW.5) after registration of the case but even then both the referred documents do not bear the FIR number, showing that the report was lodged after consultation and deliberations. The father of deceased has also not been examined either by

the I.O, or before the Court even to the extent of charging the appellant for committing murder of his son nor any prescription or chit for bringing medicines were produced to the I.O, which could confirm the version of complainant about bringing of medicine for Mst.Nasreen.

7.The medical evidence is also in conflict to the ocular account as according to medical report the deceased was hit from his back showing the direction to be Western side as per site plan but according to PW.9, the deceased was proceeding towards North, which is side of the deceased meaning that the deceased was hit from side and not back, which is also a serious contradiction damaging the prosecution case.

Besides no empty has been recovered from the spot though as per complainant (PW.8) the appellant was armed with a shotgun, so if the version of complainant is considered to be true, then some pellets must have been recovered from the spot or from the dead body as after firing from a shot guns, its pellets (Charay) spreads in the air and in case of hitting the deceased, several pellets

have to be recovered from the dead body but as per medical evidence as well as I.O, only one spent bullet was recovered from the dead body of deceased which is also contradicting the version of PW.8 that appellant was armed with shotgun.

The I.O, was also unable to disclose as to whether the ‘Goli Sikka’ recovered from the dead body of deceased by the doctor, was bullet or pellet and that he has also not sent the same to the FSL for ascertaining the truth as to whether it was fired from an ordinary rifle or shotgun or any other weapon which shows negligence on the part of Investigation Officer, who was required to conduct the investigation with great care, caution and honestly but he failed to do so, showing lack of his interest towards the investigation. Besides, both the alleged eye witnesses have not told the police about description of crime weapon used in the commission of offence. Even a layman and small child could identify such crime weapon moreso, when used in a day light. This omission is the intriguing part of the prosecution’s case.

8.So far as the motive is concerned, no evidence to this effect has been brought on record as to whether any altercation had taken place between the deceased and petitioner prior to the occurrence nor to this effect any independent witness has been examined in order to confirm the version of complainant party regarding previous altercation.

9.So far as contention of defence that being single accused, the appellant has been rightly charged by complainant for the single shot at the deceased is misplaced, as merely being single accused nominated would not support the prosecution case. The criminal cases involves life and death problem of a citizen and the fate of citizen is to be decided by carefully analyzing and scrutinizing the evidence adduced by prosecution.

The time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of accused beyond reasonable doubt, a conviction cannot be passed on the accused. A criminal Court cannot afford to

deprive an accused of his life without having at least a reasonable level of certainty that he was the real culprit. The eye witness account regarding committing of crime by appellant does not have sufficient corroboration from the medical evidence, site plan, motive and other circumstantial evidence; hence appellant is liable to be given the benefit of doubt. It is also a well established principle that each criminal case has to be proved on its own facts and circumstances.

10.Apart from the above, there are lot of loop holes and material contradictions in the prosecution, the mentioning of which would be a futile exercise as the grounds discussed above are sufficient to observe that the prosecution has failed to prove its case against appellant beyond any shadow of doubt, the benefit of which must go to the appellant. It is established law that for giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt is sufficient for the acquittal of an accused but the trial Court has failed to

appreciate the evidence brought on record by convicting the appellant which is against the law.

11.For aforesaid reasons, this Criminal appeal is allowed and the impugned judgment of conviction and sentence dated 25.1.2011, passed by learned trial Court is set aside and the appellant/convict is acquitted of charges leveled against him. He is in custody, be released forthwith if not required in any other case.

The above are reasons of our short

order of even date.

Announced.

Dt.21.01.2015.

JUDGE

JUDGE

“A.Qayum”