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*M.Siraj Afridi P.S. D
1
JUDGMENT SHEET
IN THE PESHAWAR HIGH COURT, PESHAWAR
(Judicial Department)
Cr.A. # 690-P/2011
Date of hearing: 25.09.2014
Appellant (s): Fazal Muhammad by Barrister
M.Zahoor ul Haq, Advocate.
Respondent(s) : State by Mr. M.Sohail Assistant A.G.
and Zia ul Haq complainant by Mr.
Ishtiaq Ibrahim, Advocate.
JUDGMENT
ASSADULLAH KHAN CHAMMKANI, J.- This criminal
appeal calls in question the legality and propriety of
judgment dated 24.11.2011, rendered by learned
Additional Sessions Judge Lahore, District Swabi,
whereby he convicted appellant Fazal Muhammad
under section 302 (b) PPC for committing the
murder of Rahat Ullah deceased and sentenced him
to undergo imprisonment for life as Ta’azir and to
pay Rs.1,00,000/-, as compensation to LRs of
deceased in terms of section 544-A Cr.P.C. or in
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default thereof, to undergo 06 months S.I. further.
He was further convicted under section 324 PPC for
attempting at the lives of complainant Zai ul Haq
and PW Aman Ullah and sentenced to undergo
rigorous imprisonment for seven years on two
counts and to pay a fine of Rs.20,000/- on each
count or in default thereof to undergo 03 months
S.I. further on each count. Benefit of section 382-B
Cr.P.C. was extended to him.
2. The prosecution case as unfolded in First
Information Report is that, on 20.05.2010 at 1920
hours, no sooner complainant Zia ul Haq (PW.7)
alongwith his brother Rahat Ullah deceased and
father Aman Ullah (PW.8), came out, after offering
evening prayer in Qadar Baba mosque, accused
Fazal Muhammad (appellant-convict herein)
alongwith absconding co-accused Fida Muhammad
an Wisal Muhammad, duly armed with firearms,
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standing there opened fire at them, as a result,
Rahat Ullah was hit and died on the spot, while
complainant and his father luckily remained
unscathed. Motive behind the occurrence is stated
to be that, few days prior to the incident accused by
virtue of some domestic disputes, were outlawed by
the complainant from participating in the “Fatiha
Khwani” of his deceased mother. In addition to
complainant, the incident is stated to have
witnessed by his father Aman Ullah (PW.8) and his
uncle Hidayat Ullah (abandoned PW). Report of the
complainant was incorporated in to FIR Exh.PA by
Pir Jamal S.I. (PW.10). He also prepared injury sheet
and inquest report of deceased Exh.PM/1 and PM/2
and referred the dead body for postmortem
examination.
3. Dr. Syed Asghar Ali Shah (PW.6)
conducted autopsy on the dead body of the
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deceased and found the following injuries on his
person:-
1. Firearm entrance wound on right side
scalp on occipital area about ½ x ½ cm.
2. Firearm exit wound on right orbital area,
the right eyewitness missing, size about 4
x 4 cm.
3. Firearm entrance on left arm about ½ x ½
cm
4. Firearm exit wound on left side chest
above the nipple size about 0.6 x 2 in
length.
5. Firarm entrance wound on the right HC,
size about ½ x ½ cm.
6. Firearm exit wound on back of right
lumber region about 6 cm in dimension.
In his opinion the death of the deceased
occurred due to firearm injuries to vital organs like
brain, liver, lung, leading to hemorrhage, shock and
death.
4. Tariq Saeed ASI (PW.9) conducted
investigation in the case. During spot inspection he
secured bloodstained earth Exh.P.1 from the place
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of the deceased vide recovery memo Exh.PW. 5/1,
three empties of 7.62 bore Exh.P.2 from the place of
the appellant/convict vide recovery memo
Exh.PW.5/2, five and three empties from the places
of absconding co-accused Fida Muhammad and
Wisal Muhammad, respectively, vide recovery
memo Exh.PW.5/3. Vide recovery memo
Exh.PW.5/5, he took into possession the last worn
bloodstained garments of the deceased, prepared
site plan Exh.PB on the pointation of eyewitnesses,
sent the bloodstained articles to the FSL and
received report thereof Exh.PK. He also sent the
recovered empties to Firearms Expert, initiated
proceedings under sections 204 and 87 Cr.P.C.
against the accused and on completion of
investigation, handed over the case file to Sher Afsar
Khan SHO, who submitted challan in terms of
section 512 Cr.P.C. against the accused.
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5. On arrest of the appellant/convict,
supplementary challan was submitted against him
before the learned Trial Court, where he was
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 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 as his
own witness under section 340 (2) Cr.P.C. or to
produce evidence in defence. On conclusion of trial,
learned Trial Court, after hearing both the sides,
convicted and sentenced him, as mentioned above,
hence, this appeal.
6. Learned counsel for the appellant argued
that impugned judgment of the learned Trial Court is
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based on misreading and non-reading of evidence
available on record; that both the alleged
eyewitnesses, who are close relatives of the
deceased have badly failed to establish their
presence on the spot, therefore, their testimony
which otherwise is suffering from material
contradictions, discrepancies and dishonest
improvement, getting no corroboration from the
site plan, medical evidence as well as other
circumstances of the incident, cannot be made basis
for recording conviction; that peculiar facts and
circumstances of the case strongly suggest that the
alleged eyewitnesses were procured, later on,
because none of them being in close proximity with
the deceased, has sustained a single scratch with the
alleged indiscriminate firing of three accused. He
further argued that let off the alleged eyewitnesses
by the accused with whom they had a common
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motive, is highly improbable; that PW Hidayat Ullah
who is real uncle of the complainant has been
abandoned for no good reason, which amounts to
withholding of best available evidence and in the
circumstances, adverse inference within the
meaning of Article 129-G of the Qanun-e-Shahadat,
Order, 1984 would be drawn against the
prosecution; that keeping in view the locale and
dimension of injuries on the person of the deceased,
the occurrence seems to be the doing of single
person; that general role of firing has been
attributed to three accused but no FSL report/Fire
Arms Expert report is available on file qua the
recovered empties so as to determine as to whether
these empties have been fired from one or more
than one weapon and in such circumstances,
vicarious liability of the accused on mere oral
assertion without supporting evidence, cannot be
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determined; that site plan and medical evidence
contradict the ocular account; that statement of the
complainant is suffering from dishonest
improvements; that in absence of substantive
evidence mere abscondence of the appellant, which
otherwise, he has been denied in his statement
under section 342 Cr.P.C., would not be sufficient for
recording conviction. He contended that
prosecution case is pregnant of doubts, benefit of
which is to be extended to the appellant not as a
matter of grace or concession but as a matter of
right and he be acquitted.
7. Conversely, learned counsel for the
complainant contended that appellant along with his
co-accused is directly charged for the occurrence in
a promptly lodged report; that role of firing has
been attributed to all the three accused so it would
be immaterial as to whose fire shot proved fatal
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because under section 34 PPC, each of the accused
is vicariously liable for the act done by his
co-accused; that on the basis of mere close
relationship of the eyewitnesses, their
straightforward, confidence inspiring testimony,
corroborated by medical evidence as well as
recoveries from the crime spot, cannot be
discarded; that prosecution has failed to create any
dent in the ocular account; that prosecution has
successfully proved the guilt of the appellant
through cogent and confidence inspiring evidence.
He contended that the impugned judgment of the
Trial Court being based on proper appraisal of
evidence is not open to any interference.
8. Learned A.A.G. while supporting the
impugned judgment of the learned Trial Court,
sought dismissal of the appeal.
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9. We have considered the exhaustive
submissions of learned counsel for the parties and
perused the record with their able assistance.
10. The ocular account of the occurrence has
been furnished by Zia ul Haq (PW.7), and Aman
Ullah (PW.8), who are real brother and father,
respectively, of deceased Rahat Ullah. True that on
mere close relationship of a witness with the
complainant or deceased, his testimony cannot be
discarded provided the same is trustworthy,
confidence inspiring and corroborated by other
strong circumstances of the incident. Similarly, for
believing and relying upon the testimony of an
eyewitness, the eyewitness who claims his presence
at the spot must satisfy the mind of the court
through some physical circumstances or through
some corroborative evidence in support of his
presence at the spot.
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11. Keeping in mind the above principles, we
would like to evaluate the ocular account furnished
by PWs Zia ul Haq and Aman Ullah. In his report
complainant Zia ul Haq (PW.7) stated that the
accused were armed with firearms, who on sighting
them, opened fire at them, as a result, deceased
Rahat Ullah was hit and died on the spot, but in his
court statement while making dishonest
improvement to bring in line his testimony with the
recovered empties from the spot, he deposed that
the accused were armed with machines. Recovery of
7.62 bore empties has been effected from the spot,
which means that the deceased was done to death
with Kalashnikov. A look over the site plan Exh.PB
reveals that complainant (PW.7) has been shown at
point No.2 while the accused at points No.5, 6 and 7.
The distance inter-se the complainant and the
accused as shown in the site plan is 12, 8 and 7
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paces. Kalashnikov or 7.62 bore rifle is a common
weapon in the society, particularly this part of the
country, which can be recognize easily even from a
sufficient distance. In the instant case, when the
accused were in close proximity with the
complainant, how he could not identified and
recognized the weapons they were allegedly
holding. Complainant and PW Aman Ullah have been
shown at a distance of 5 and 7 paces from the
deceased. The occurrence allegedly took place in
front of Qadar Baba mosque. Both, complainant and
PW Amanullah have charged the accused for
indiscriminate firing at them as well as the
deceased. It is not the case of the PWs that they at
the time of firing took shelter some where. Aman
Ullah PW.8 in cross-examination deposed that in all,
about 80/90 shots were fired by the accused
including aerial firing, but none of the PWs has
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sustained a single scratch what to say of any firearm
injury despite they being in close proximity with the
deceased and at the mercy of the accused. The
escape of the PWs from such heavy firing of the
accused or their let off by the accused having
common motive with them, is highly improbable.
No spent bullet has been recovered from the spot.
Though, the I.O. has observed some bullet marks on
the wall of the mosque but he has not given any
explanation whether these were fresh or otherwise.
Besides, the numbers of recovered crime empties do
not commensurate with the number of fire shots as
stated by PW Aman Ullah. It is not the case of the
PWs that some body removed the empties from the
spot. Both the PWs have admitted in their cross-
examination that the dead body of the deceased
was picked up by them and was put on a cot, in
which process their hands and clothes smeared with
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the blood of the deceased, but none of them has
produced the bloodstained clothes to the I.O. so as
to establish their presence on the spot. The stance
of PW Aman Ullah has been contradicted by
complainant PW.7, according to him 2/3 shots were
fired upon him and same was the case of his father
PW Aman Ullah. PW Aman Ullah was also
confronted with his statement under section 161
Cr.P.C. wherein he has not stated about the kind of
weapon but in his cross-examination he deposed
that he had mentioned Kalashnikovs as weapon of
offence. Both the alleged eyewitnesses have made
number of dishonest improvements just to bring in
line their testimony with other circumstances of the
case, which would be fatal for the prosecution case.
Complainant in his cross-examination admits
presence of “Kaptan Mosque” in his Mohallah and
that Qadar Baba mosque is situated in other
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Mohallah. Both the PWs have not given any
plausible explanation about their presence/offering
prayer in Qadar Baba mosque, leaving the mosque
of their own Mohallah. This aspect of the case also
creates doubt in the prosecution case.
12. Medical evidence negates the ocular
account and the site plan prepared at the pointation
of the alleged eyewitnesses. In the site plan the
deceased has been shown at point No.1 whereas the
appellant-convict at point No.5 towards his left.
Perusal of autopsy report of the deceased reveals
that deceased had received all the entrance wound
from right side except wound No.3. Similarly, the
dimensions of all the entrance wound is 1/2
centimeter, which strongly suggest the occurrence
to be the doing of single accused, but not in the
mode and manner by the alleged eyewitnesses
rather in some other mode which shrouded in
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mystery. It has been held by the apex court in
plethora of judgments that contradiction in medical
evidence and ocular evidence would make the
prosecution story doubtful and it can be held as if
eyewitnesses had not seen the incident.
13. As regard the argument of learned
counsel for the complainant that in case of role of
general firing to accused, it would be immaterial as
to whose fire shot proved fatal because under
section 34 PPC, any criminal act done by several
persons, in furtherance of their common intention,
each of them would be liable for that act in the same
manner as it were done by him alone. No doubt,
section 34 PPC embodies common sense principle
that if two or more persons intentionally did a thing
jointly, it was just the same as if each of them had
done individually, but at the same time, the
prosecution is also bound to prove the overt act on
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the part of each accused done in furtherance of
common intention. To attract the provisions of
section 34 PPC, there must be some proof of overt
act on the part of each accused done in furtherance
of common intention. In the case in hand, though,
according to the I.O. empties of 7.62 bore, recovered
from the spot, had been sent to Firearms expert, but
no such report is available on file, from which it
could be determined as to whether the recovered
empties had been fired from one or more than one
weapon. No crime weapon has been recovered from
direct or indirect possession of the
appellant/convict. He has not made any discovery
nor confessed his guilt before the competent court
of law. Thus, in absence of all these material pieces
of evidence, how participation of the
appellant/convict and his vicarious libility can be
proved. Mere recovery of crime empties from the
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place assigned to appellant would not advance the
case of the prosecution as the same cannot be a
substitute of direct evidence. Rather, such like
evidence is always considered as corroborative piece
which is taken into consideration alongwith direct
evidence. As stated earlier, the direct evidence of
the alleged eyewitnesses is highly improbable and
suffers from material discrepancies creating serious
doubts about their presence on the spot and about
the mode and manner of the occurrence as alleged
by them. 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”
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(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.
Same view has been expressed by the apex Court in
Saifullah’s case (1985 SCMR 410).
14. Besides, Hidayat Ullah mentioned in the
FIR as eyewitness of the occurrence, has been
abandoned by the prosecution for no good reason.
In the circumstances, adverse inference within the
meaning of Article 129-G Qanun-e-Shahadat Order,
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1984 would be drawn against the prosecution that
had he been produced in the witness box, he would
not have supported the prosecution version. In this
respect reliance can be placed on Master
Muhammad Saddique’s case (2003 MLD 1774).
Master Muhammad Saddique’s case (2003 MLD
1774.
15. So far as the only circumstance against
the appellant/accused i.e. his abscondence is
concerned. He has denied the same in his statement
under section 342 Cr.P.C. Moreso, abscondence
alone, cannot be a substitute for real evidence. It has
been observed by the apex Court in Farman Ali and
others’ case (PLD 1980 SC 201) that abscondence by
itself would be of no avail to prosecution in absence
of any other evidence against the absconding
accused. Mere abscondence of accused would not
be enough to sustain his conviction. Wisdom in this
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regard may be derived from case titled,
“Muhammad Vs Pesham Khan (1986 SCMR 823).
Since there is no credible evidence to support the
prosecution version, so abscondence, itself, would
not be sufficient to prove the guilt of appellant.
According to golden principle of benefit of doubt,
one substantial doubt would be enough for acquittal
of the accused. In the instant case, the prosecution
evidence is highly discrepant and full of infirmities
and as such has created a genuine doubt in our mind
regarding the participation of the appellant in
commission of the crime.
16. It is cardinal principle of administration
of criminal justice that prosecution is bound to
prove its case beyond any shadow of doubt. If any
reasonable doubt arises in the prosecution case,
benefit of the same must be extended to the
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accused not as a grace or concession, but as a
matter of right. Basically, it is the principle enshrined
in Islamic jurisprudence, fourteen hundred years ago
that “it would be better to acquit hundred culprits
than convicting one innocent soul.” Which has now
been transformed into the form of the principle
that, “acquitting by error would be better than
convicting by error”.
17. In wake of our above discussion, we
have reached to an irresistible conclusion that the
prosecution has miserably failed to establish the
guilt of the appellant through cogent and
confidence inspiring evidence of unimpeachable
character, the statements of the alleged
eyewitnesses are pregnant of doubts and suffering
from material contradictions and dishonest
improvements which escaped the notice of the
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learned trial Court and thereby reached to a wrong
conclusion by holding the appellant guilty of the
offence. Resultantly, this appeal is allowed. The
conviction and sentence of the appellant recorded
by learned Trial court are set aside and he is
acquitted of the charge leveled against him. He be
set at liberty forthwith, if not required in any other
case.
18. These are reasons of our short order
of even date, which is reproduced below:-
“For reasons to be recorded later, we
allow this appeal, set-aside the
conviction and sentence of the
appellant Fazal Muhammad awarded
to him by learned Trial
Court/Additional Sessions Judge Lahor
Swabi, vide impugned judgment dated
24.11.2011, in case FIR No.630, dated
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20.05.2010, registered under sections
302/324/34 PPC, at Police Station
Lahor, District Swabi, and hereby
acquit him of the charges leveled
against him in the aforementioned
case. He be set at liberty forthwith, if
not required in any other case”.
Announced.
25.09.2014
J U D G E
J U D G E