Sherzada vs State

PESHAWAR HIGH COURT MINGORA BENCH

(DAR-UL-QAZA), SWAT

JUDICIAL DEPARTMENT

JUDGMENT SHEET

Cr.A.No....................................138/2014 Date of hearing 22.9.2014.

Appellant: (Sher zada) by Mr. Sher

Muhammad Khan, Advocate.

Respondents: ( the state & 1 another) by Mr. Shaibar Khan, Advocate & Mr.

Sabir shah AAG

ABDUL LATIF KHAN J.- Appellant, Sher Zada, filed this criminal appeal against the judgment dated 7.5.2014 passed by learned additional Sessions Judge/Izafi Zila Qazi, Shangla, Camp Court Swat, whereby he has been convicted and sentenced in Case FIR No. 52 dated 23.42013, registered at Police Station, Martoong, as under:-

(i). Under section 324 PPC to undergo seven years RI with fine of Rs. 2,00,000/- or in default thereof to undergo SI for one year.

(ii). Under section 337-F (vi) PPC to undergo two years R.I and also to pay daman

Rs. 50,000/- to the victim-cum- complainant,

(iii). Under section 337-F (iii) PPC to undergo RI for one year and to pay daman amounting to Rs. 30,000/- to the victim-cum- complainant.

(iv)Under section 337-A (i) and 337-F (i) PPC to pay Rs. 10,000/- each (total 20,000/-) to the complainant.

2.The background of the occurrence are that Mst. Chowara Bibi, complainant, lodged a report to the effect that on 23.4.2013 at 14.30 hours, her brother in law, Bashir Zada and his nephew Bakht Alam were quarreling each other and after separation, she took her brother in law to his house and when she was coming back to her house, in the meanwhile, Sher Zada, made firing at her with which she was hit on different parts of her body. The occurrence was stated to be witnessed by Sartaj and Bakht Ali shah. Motive for the offence was over domestic disputes. The report of complainant was reduced into writing in shape of Murasilla, posted as Ex PA/1, culminated in above referred FIR.

3.After completion of investigation, complete challan in the case was submitted. Learned trial court charge sheeted the accused to which he pleaded not guilty *Zafral*

and opted to face the trial. On commencement of trial, the prosecution produced eleven (11) witnesses in support of its case and on closure of prosecution evidence, accused was examined under section 342 Cr.P.C wherein he professed innocence and stated false implication in the case, however, he was neither ready to examine him on oath nor wished to produce evidence in defence. Learned trial court on conclusion of trial, convicted and sentenced the appellant, as stated above, vide the impugned judgment, hence, the present appeal by the appellant against his conviction.

4.Learned Counsel for appellant contended that there is three hours unexplained delay in lodging the report which is fatal to the prosecution case. He argued that there are material contradictions in statements of PWs besides dishonest improvements, which also makes the entire case doubtful. He argued that eyewitnesses are relative inter se and there is no independent corroboration.

He added that cross case was registered against the son of complainant for causing fire arm injury to the daughter of appellant but this fact has been suppressed by the PWs.

5.As against that, learned AAG appearing on behalf of the State and counsel for complainant *Zafral*

contended that the appellant has directly been charged by the complainant-cum-victim, which is supported by medical evidence as well as ocular evidence furnished by PW-3 and PW-4 coupled with recovery of empties from the spot, weapon of offence and FSL report.

6.I have considered arguments of learned counsel for parties and have gone through record of the case with their able assistance.

7.The record reveals that there is three hours delay in lodging of the report as the occurrence took place at 14.30 hours while report has been lodged at 17.30 hours but there is no explanation for such delay, which is fatal to the prosecution case. The Murasilla and statement of Amjad Khan SI, PW-6, reveals that it has been drafted in hospital and thumb impressed by Sartaj and Bakht Ali Shah but complainant negated the same and deposed that her report was recorded by police at Poranan and she herself had gone to Police Station for lodging report. She further deposed that she went for report all alone and no one was present with her at the time of report. She next deposed that no one had signed or thumb impressed her report except her which runs contrary to the contents of report and statement of PW-3 Sartaj.

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8.Presence of Sartaj and Bakht Ali Shah is doubtful because during investigation, two ladies, namely, Mst. Rohia Bibi and Zenat were introduced as eyewitnesses. The Investigating officer prepared the site plan at their pointation but strange enough to observe is that places of PWs Sartaj and Bakht Ali Shah were not shown to the police during spot inspection whereas according to report and statement of complainant Sartaj and Bakht Ali Shah were eyewitnesses of the occurrence.

Had PWs Sartaj and Bakht Ali Shah been present on the spot, their places would have been shown to the police by Mst. Rohia Bibi to the police at the time of spot inspection, which further makes the story of presence of PWs on the spot dubious.

9.There are also material contradictions in the statements of the PWs. Complainant deposed that at the time of occurrence her relatives were not present on the spot and after receipt of injury, her son Qurish came to the spot. She further deposed that the occurrence was only witnessed by Sartaj and Bakht Ali shah and except them none had seen the occurrence. Sartaj, PW-3, deposed that at the time of occurrence son of complainant was present who intended to give axe blow to Sher Zada but he took *Zafral*

the axe from him. He deposed that they had not gone to Police Station and straightaway went to the hospital. He next stated that at the time of shifting the complaint to hospital Mst. Hassan Zeba and Zenat were accompanied them. Mst. Rohia Bibi as PW-4 deposed that the accused was asked by his father in law for compromise and he came duly armed with dagger and intended to give blow to him but her mother in law separated them. She deposed that with dagger blow her father in law received injuries on his hand. She deposed that no lady had gone with the injured to the hospital, which creates doubts regarding truthfulness of the PWs.

10.Another damaging aspect of the case is dishonest improvement by the complainant in her statement during trial. Contents of report reveals that after separating Sher Zada and Bakht Alam, she was on the way back to her home in the meantime Sher Zada made firing at her with which she was hit on different parts of her body. She has not stated a single word regarding dagger blow and presence of her husband on the spot but when she appeared before trial court as PW-2 narrated different story just to in line her testimony with medical report because at the time of examination the doctor found a *Zafral*

crush wound on her right wrist, a blunt trauma on her left shoulder and a bleedy wound on her face below the left eye were found on her body. She during court statement introduced a new story and deposed that after separating Bashir Zada and Bakht Alam, she took Bashir Zada to her house where he took out dagger but she caught hold his hand as a result of which the dagger falls on the ground from him. She deposed that she was collecting fire wood in the meantime; accused made firing at her and after receipt of injuries her husband shifted her to hospital. The rule for safe administration of justice is that improvement made by eye-witness in order to strengthen the prosecution case, lose his credibility and evidentiary value and when a witness made contradictory statement or improvement changing his version to suit the situation, if found to be deliberate and dishonest, would cause serious doubt on his veracity.

11.Quite apart from the above contradictions and improvement, the complainant and PWs have suppressed the material facts form the court. The record reveals that during the occurrence daughter of appellant, namely, Jamil Zeba received fire arm injuries for which son of the complainant was charged and in this respect cross case *Zafral*

FIR No. 53 was registered in the same police station on the same date but the complainant during cross examination shown ignorance regarding such happening.

Sartaj PW denied the suggestion that Mst. Jamil Zeba, the daughter Complainant, received fire arm injuring during occurrence. Since the complainant and PWs have deliberately suppressed the material facts from the Court, which ultimately damaged their veracity and injured their integrity, which also shake the confidence of the Court and, as such, throw cloud regarding the trustworthiness of the witnesses.

13.Last but not the least, when there are cross cases arising out of the same incident, then it is incumbent upon the trial Court to try both the counter-versions side by side, and judgment is not to be pronounced until and unless both the cases are completed. The trial court before pronouncement of the judgments in the cases has to keep evidence in juxtaposition. Though, there is no absolute provision in the Criminal Procedure Code that cross-cases be tried by same Court and disposed of simultaneously but it is rule of prudence and propriety to avoid conflicting findings and further if both the cases are not tried side by side the trial Court would be deprived of better *Zafral*

appreciation of evidence. It is pertinent to mention here that testimony of witnesses of one case cannot be acted upon in other cases and judgments in both the cases are to be written separately. Thus, by practice, it has become a rule that all charges and counter-charges arising out from one incident be tried by the same Court and disposed of simultaneously. In the present case two FIRs were registered regarding the same occurrence. Two different versions were put forward by the parties against each other. The police forwarded both the challans on different dates to the court. The trial court on 11.7.2013 discharged the accused of the cross case registered vide FIR No. 53, in such a situation, the propriety demands that challans of both the cases should have been sent to trial Court simultaneously and the trial court was bound to place both the versions in juxtaposition, that which versions was correct or false and which of accused persons was responsible for the guilt.

In Muhammad Sadiq's case (PLD 1971 SC 713), it was observed that:-

"The Code of Criminal Procedure was silent with regard to the procedure to be adopted in trial of counter- cases arising out of the same occurrence. It was not Laid down anywhere in the Code as an absolute rule that all charges and counter charges must be tried by the same Court as held in A I R 1944 Bom. 1946. It was further held that it was a general practice to try the counter cases side by side by the same Court till their conclusion and to pronounce judgment in each case *Zafral*

simultaneously. It cannot be said that this is an absolute rule to be adhered to strictly in every case. The special facts and circumstances of a particular case may warrant a different procedure for the ends of justice."

It was further observed by the apex court in Abdul Rehman Bajwa's case reported in PLD 1981 S.C 522 at page 529 observed that:- " It may be mentioned here that the learned Judge in Chamber had relied on Muhammad Sadiq v. The State and another (3), to observe that since the Criminal procedure Code is silent with regard to the procedure to be adopted in the trial of cross cases, it was, therefore, not necessary to have required the two cross cases to be tried together by the same court. In the same authority, however, it has been observed that the practice generally adopted by courts is to try counter-cases side by side, by the same Court, till their conclusion and to pronounce judgment in each case simultaneously. No doubt the rule is not absolute and there could be cases in which the circumstances does not warrant that the said procedure must be followed, but the rule of propriety which is the basis of the general practice mentioned above is founded on sound principle because if two cross cases about the same incident between the same parties are tried by different courts there can be a serious possibility of a conflict in judgments resulting in two different courts given two diametrically opposite findings about the same incident.

12.The above improvement, contradictions and suppression of facts leads one to the conclusion that the occurrence has not taken place in the mode and manner as narrated by the complainant. Presence of complainant on the spot has, no doubt, been established as she is having stamp of injuries but does not stamp her to be a truthful witness. Honourable, the apex Court in a case Amin Ali and another vs. The State (2011 SCMR 323) has observed that presence of injured witness cannot be *Zafral*

doubted at place of incident merely because they had injuries on their persons but would not take the prosecution case any further. It is fundamental principle of jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful. For the aforesaid reasons, I am of the considered view that the prosecution has failed to prove the guilt against the appellant and the conviction recorded by the trial court cannot be maintained on the evidence available on record keeping in view existence of glaring contradictions, improvements and doubts and benefit of which would go to the accused person.

The apex Court of the country in a case titled Ayub Masih v.

The State (PLD 2002 SC 1048) has observed that if there be an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. Therefore, by extending the benefit of doubt, I accept the appeal filed by the appellant by setting aside his conviction and sentence and acquit him of the charges leveled against him. He be set free forthwith, if not required in any other case.

Announced.

Dated.22.9. 2014 JUDGE

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