AWAIS and others Vs The STATE and others

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Peshawar high court
Peshawar high court

AWAIS and others—Appellants

Vs

The STATE and others—Respondents

Criminal Appeals Nos.9/J and 12/J, PSLA No.28, Criminal Revision No.30 of 2016 and Murder Reference No.491 of 2015, heard on 13th December, 2018.

Before Shehram Sarwar Ch. and Farooq Haider, JJ

(a) Penal Code (XLV of 1860)—

—-S. 302(b)—Qatl-i-amd—Appreciation of evidence—Benefit of doubt—Prosecution case was that accused party armed with deadly weapons made firing upon the complainant party, due to which one person succumbed to the injuries at the spot—Motive of the occurrence was that accused had committed murder of eleven persons of the complainant party and whoever came forward as complainant or witness of those cases, accused persons committed his murder—Ocular account consisted of statements of two witnesses including complainant who had claimed themselves to be the eye-witnesses of the occurrence—Admittedly, both the said witnesses were not residents of the place of occurrence, neither they had any property nor any business/job over there—Said witnesses even could not offer or establish any valid reason for their presence at the time and place of occurrence—Complainant had claimed that they had gone to the place of occurrence because they had some work in NADRA office but neither NADRA office had been shown in the site plan nor any detail/nature of work had been disclosed the witnesses—Complainant had claimed that on the day of occurrence, they proceeded to the office of NADRA on his Dala (vehicle) but said Dala had neither been shown in the site plan nor it had been produced before the police—Witness had clearly stated that they had gone in his car at the place of occurrence which was being driven by the complainant—Neither the said car had been shown in the site plan nor produced before the police—Said witnesses had contradicted each other on that material point—Admittedly, both the said witnesses were also inimical to the accused persons—Evidence of such chance and inimical witnesses could not be relied in circumstances—Parentage and other particulars of co-accused were not given in the FIR and during entire investigation said fact was not disclosed by the complainant or any other prosecution witness—Record showed that four persons with the name of co-accused resided in the village—Identification parade, in circumstances, could have been safe mode which had not been done—Material and history available on record showed that both the said eye-witnesses were having grudge/ enmity against accused persons—If they were available at the place of occurrence in presence of accused persons, who were allegedly armed with lethal weapons like Kalashnikov then they both would have been first target of the accused persons—Record showed that complainant had also filed private complaint in the case and in his statement recorded under S. 200 Cr.P.C., he introduced two more accused persons in the case—Complainant during his examination under S. 200 Cr.P.C. had stated that one of the accused fired at them with intention to commit their murder—Complainant while appearing as witness had omitted the name of said two accused—Ocular account, in circumstances, was neither believable nor confidence inspiring and both the eye-witnesses were not truthful—Circumstances established that prosecution had failed to prove its case against the accused—Appeal was allowed in circumstances and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

Mst. Shazia Parveen v. The State 2014 SCMR 1197; Muhammad Rafique v. The State 2014 SCMR 1698; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Arshad Khan v. The State 2017 SCMR 564 and Rohtas Khan v. The State 2010 SCMR 566 rel.

(b) Penal Code (XLV of 1860)—

—-S. 302(b)—Qatl-i-amd—Appreciation of evidence— Medical evidence—Prosecution case was that accused party armed with deadly weapons made firing on the complainant party, due to which one person was hit and succumbed to injuries at the spot—Complainant had stated that deceased received firearm shots from the distance of five feet but no blackening was found on any wound in the post-mortem report—Medical evidence had contradicted the ocular account and falsified the presence of the eye-witnesses at the place of occurrence, in circumstances.

(c) Penal Code (XLV of 1860)—

—-S. 302(b)—Qatl-i-amd—Appreciation of evidence—Delay in lodging the FIR—Scope—Complainant’s version was that the occurrence took place at 3.00 p.m.—Post-mortem report showed time of death as 1.00 p.m.—Post-mortem had been performed after about delay of nine hours for which no plausible reason had come on the record—Said fact showed adverse to the claim of prosecution that FIR was promptly recorded rather it was an un-witnessed occurrence—Time had been consumed by the prosecution for engaging and procuring witnesses and then after consultation and deliberation, version had been concocted and incorporated in the record of the case.

Haroon Shafique v. The State and others 2018 SCMR 2118 rel.

(d) Penal Code (XLV of 1860)—

—-S. 302(b)—Qatl-i-amd—Appreciation of evidence—Recovery of weapon of offence from accused—Reliance—Scope—Record showed that Kalashnikov was recovered on the pointation of co-accused—Said recovery was of no help to the case of prosecution because the Kalashnikov as per report of Forensic Science Agency had not matched with the empties allegedly secured from the alleged place of occurrence.

(e) Criminal trial—

—-Abscondance—Scope—Abscondance was only a suspicious circumstance and it could not cure the defect of substantial nature of the case of prosecution—If ocular account had been disbelieved then abscondance being corroboratory piece of evidence was of no help to the case of prosecution.

Rohtas Khan v. The State 2010 SCMR 566 rel.

(f) Penal Code (XLV of 1860)—

—-S. 302(b)—Qatl-i-amd—Appreciation of evidence—Motive, not proved—Motive of the occurrence was that the accused had committed murder of eleven persons of the complainant party and whoever came forward as complainant or witness of those cases, accused persons committed his murder—Complainant did not produce anything to prove the same—Accused persons produced and got exhibited the FIR, which showed that same could not be considered as motive for committing murder of deceased but was the reason for false implication of the accused persons in the peculiar circumstances of the case.

Tariq v. The State 2017 SCMR 1672 rel.

Faisal Shahzad Gondal for Appellant No.1.

Ms. Saika Javed for Appellant No.2.

Tariq Javed, District Public Prosecutor for the State.

Syed Zahid Hussain Bukhari for the Complainant.

Date of hearing: 13th December, 2018.

JUDGMENT

FAROOQ HAIDER, J.-–Through this single judgment Criminal Appeals Nos.9/J and 12/J of 2016 filed by Awais and Arshad Ali (hereinafter called as appellants) against judgment dated 10.12.2015 passed by learned Addl. Sessions Judge, Ferozewala, whereby they have been convicted and sentenced under section 302(b), P.P.C. to death each on account of committing qatl-i-amd of Bilal Hassan with payment of compen-sation Rs.1,00,000/- each to the legal heirs of deceased under Section 544-A, Cr.P.C. and in default thereof to further undergo six months S.I; P.S.L.A. No.28/2016 filed by the complainant against the order of acquittal of Adnan-ul-Haq and Khadija Bibi; Crl. Revision No.30/2016 filed by the complainant for enhancement of compensation, payable by each convicts and Murder Reference No.491/2015 sent by learned trial Court under Section 374, Cr.P.C. for confirmation of death sentence awarded to appellants through the impugned judgment, are being decided together because all these matters have arisen out of one and same judgment.

2. Brief facts, as per application (Ex.PA) presented by Malik Shabbir Hussain (hereinafter referred as complainant) to police officer are that on 13.01.2012 at 03:00 p.m, complainant alongwith Imran Raza, Bilal Hassan and Sakhawat Ali was proceeding to Identity Card Office and when they reached in front of Rachana Shopping Center, accused Khadija Bibi, Awais armed with Kalashnikov, Arshad Ali Bhatti armed with Kalashnikov, Adnan armed with pistol, Husnain Shah alias Qaimi Shah armed with pistol came there; Khadija Bibi raised lalkara that they be taught a lesson for pursuing the cases and killed, upon which, the accused persons started firing upon them; accused Awais made fire with his Kalashnikov which hit at the head of Bilal Hassan whereas Arshad Ali made fire with his Kalashnikov which hit at the abdomen of Bilal Hassan, due to which Bilal Hassan fell down on the ground and succumbed to the injuries at the spot; complainant and his companions entered in Rachana Shopping Center for saving life; meanwhile, a police van passed on road, on seeing the same, accused persons while making firing fled away from the place of occurrence.

Motive of the occurrence was mentioned as that earlier the accused have committed murder of eleven persons of the complainant party and whoever comes forward as complainant or witness of those cases, accused persons commit his murder. Bilal Hassan deceased of the case was an injured witness in case FIR No.352/2006 registered under Section 302, P.P.C., Section 7 of Anti-Terrorism Act whereas Malik Shabbir Hussain was also the complainant in case FIR No.689/2010 registered under Sections 302, 148, 149, P.P.C., Section 7 of Anti-Terrorism Act, and he is complainant of almost ten cases. Apart from complainant, Sakhawat Ali and Imran Raza witnessed the occurrence.

On application (Ex.PA) case vide FIR No.41/2012 dated 13.1.2012 under Sections 302, 148, 149, P.P.C. was registered at Police Station Ferozewala, District Sheikhupura (Ex.PA/1). After registration of the said case, police declared some of the accused persons as innocent, so feeling dissatisfied with it, complainant filed the private complaint (Ex.PB) before the learned Judicial Magistrate which was entrusted to learned Additional Sessions Judge, Ferozewala, in which the appellants and their co-accused persons were summoned and charge sheeted, to which, they pleaded not guilty and claimed trial. Thereafter complainant produced four prosecution witnesses and also tendered reports of Chemical Examiner and Serologist, then Court also examined twelve Court witnesses. Thereafter, statements of the accused were recorded under Section 342, Cr.P.C. in which they refuted the allegations levelled against them and in reply to question that why this case against you and why the PWs deposed against you?, the appellants stated as under: –

Awais

“This case was got registered by the complainant against me due to previous enmity and to grab the land owned by us in our village. Complainant of this case and PWs Sakhawat Ali are close relative, therefore, PWs Sakhawat and complainant have given false evidence against me to procure conviction. In fact Bilal Hassan deceased was the resident of Lahore but he used to live with the complainant party. The complainant party himself had murdered the said Bilal Hassan and I was made the scape-goat in this case for ulterior motive. The complainant party has severe enmity with different people of area as number of FIR were existed against the complainant party including murder cases by the different people and I am innocent in this case”.

Arshad Ali

The complainant has falsely been implicated to me in this case. The witnesses have deposed falsely against me. All the witnesses are co-related”

However, they did not opt to appear under Section 340(2), Cr.P.C. but opted to lead evidence in their defence. Appellant Awais produced Qaiser Mehmood as DW-1 and Tariq Mehmood as DW-2.

3. The learned trial court after conclusion of the trial convicted and sentenced the appellants as mentioned above while acquitted accused Khadija Bibi and Adnan-ul-Haq vide impugned judgment dated 10.12.2015.

4. Learned counsel for the appellants submitted that ocular account is comprising upon chance witnesses, who could not prove their presence at the place of occurrence; ocular account is contradicted by the medical evidence; after thorough investigation, Awais appellant was found as “not involved in the occurrence” and his name was placed in coloumn No.2 of the report prepared under section 173, Cr.P.C.; impugned judgment is against the law and facts and result of misreading and non-reading of the evidence, therefore, the same is liable to be set aside and appellants deserve acquittal.

5. Conversely learned District Public Prosecutor assisted by the learned counsel for the complainant has supported the impugned judgment to the extent of appellants. Learned counsel for the complainant in support of petition for special leave to appeal has submitted that order of acquittal of Khadija Bibi and Adnan-ul-Haq accused persons is against the law and facts; same is result of misreading and non-reading of evidence; complainant has proved his case against them up to hilt; and thus sought leave to appeal. Whereas in support of criminal revision for enhancement of compensation, learned counsel for complainant has contended that compensation awarded by the learned trial Court is not adequate and same may be enhanced.

6. After hearing learned counsel for the parties and going through the record, it has been observed that ocular account in the case is comprising upon the statements of Shabbir Hussain complainant/PW-1 and Sakhawat Ali PW-2. They both claimed themselves to be the eye-witnesses of the occurrence. It is admitted fact that both of them are not resident of the place of occurrence, neither they have any property nor any business/job over there; both of them even could not offer or establish any valid reason for their presence over there at the time and place of occurrence. So much so they remained contradictory on material points in this regard, it was claim of the complainant/PW-1 that they had gone to the place of occurrence because they had some work in NADRA Office but neither NADRA Office has been shown in the site plan nor any detail/nature of work has been disclosed by him. During cross-examination, complainant/PW-1 stated that they had no work in the office of NADRA and took another somersault that they had to see someone but neither his name was disclosed nor he was produced during investigation or trial. Similarly PW-2 Sakhawat Ali stated that they came for NADRA office, however during cross-examination said that I cannot tell distance between Rachana Shopping Center (i.e. place of occurrence) and office of NADRA. It was claim of complainant PW-1 that on the day of occurrence, they proceeded to office of NADRA on his “Dala” but said “Dala” neither has been shown in the site plan nor it has been produced before the police; furthermore, its model, make, registration number, colour or any other feature could not be provided by the complainant, whereas PW-2 Sakhawat Ali has clearly stated that they had gone in his car at the place of occurrence which was being driven by Malik Shabbir Hussain complainant/PW-1; but neither said car has been shown in the site plan nor produced before the police; even registration number, make, model or any other feature of said car has not been provided. Therefore, both these witnesses have contradicted each other on this material point. Admittedly both these witnesses are also inimical against the appellants and other accused persons. Evidence of such chance and inimical witnesses cannot be relied in the circumstances of the case. Reliance is placed upon the case of “Mst. Shazia Parveen v. The State” (2014 SCMR 1197), “Muhammad Rafique v. The State” (2014 SCMR 1698), “Mst. Sughra Begum and another v. Qaiser Pervez and others” (2015 SCMR 1142) and “Arshad Khan v. The State” (2017 SCMR 564). Relevant portion from Arshad Khan case (supra) is being reproduced:–

“Both the eye-witnesses produced in this case, i.e. Zahid Khan complainant (PW8) and Muhammad Sadiq (PW9) were very closely related to Mst. Naheed Akhtar deceased and they were admittedly chance witnesses. The said witnesses had maintained before the trial Court that at the relevant time they were proceeding towards a mosque in order to offer Fajar prayers but a bare look at the site-plan of the place of occurrence shows that the houses of the said eye-witnesses were not situated close to the house of occurrence and they were situated so far away that they could not find any mention in the site plan of the place of occurrence at all. No mosque near the house of occurrence had been shown in the said site-plan and, thus, the stated reason for presence of the said eye-witnesses near the place of occurrence never stood established on the record through any evidence whatsoever”

It is also not out of place to mention here that in the application Ex.PA parentage and other particulars of Arshad Ali appellant were not given and even during entire investigation this fact was not disclosed by the complainant or any other prosecution witness. It has come on the record through Ex.DE that four person with the name of Arshad Ali resides in his village and in this state of affairs identification parade could have been safe mode but the same has not been done.

As per material and history available on record, these both eye-witnesses i.e. Malik Shabbir Hussain PW-1 and Sakhawat Ali PW-2 were having more grudge/enmity than Bilal Hassan with the accused persons, hence if they were available at the place of occurrence in presence of accused persons, who were allegedly armed with lethal weapons like Kalashnikov then they both would have been first target of the accused persons; furthermore Sakhawat Ali PW-2 was also witness in the same FIR No.352/2006 i.e. Ex. DF/4 (which has been stated as motive of this occurrence) and also in so many other cases of similar nature against the accused persons including case arising out of FIR No.301/2005 (Ex.DF/1) wherein PW-2 Sakhawat Ali was injured witness; similarly complainant Shabbir Hussain was also complainant against accused party in ten other cases as well, hence if for any said reason, there was some need to kill someone then those would have been Shabbir Hussain PW-1 and Sakhawat Ali PW-2; hence on this score too, testimony of these both witnesses is not reliable. Reliance is placed upon the case of “Rohtas Khan v. The State” (2010 SCMR 566) and relevant portion thereof is reproduced:–

“10. The alleged motive was against the complainant, but it is noted that the appellant did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P.Ws. were not present at the place of occurrence.

It has also come on the record that Bilal Hassan did not appear in that case in which he was statedly witness and in this regard, statement of PW-2 Sakhawat Ali PW-2 is being reproduced for ready reference: –

“Bilal Hassan deceased did not record his statement in criminal case FIR 352/2006”

Perusal of above mentioned statement makes it crystal clear that there was absolutely no reason with accused persons for committing murder of Bilal Hassan, hence motive stands negated. Moreover when Bilal Hassan has not appeared as a witness in that case against the appellants, then complainant party i.e. PW-1 Shabbir Hussain and PW-2 Sakhawat Ali might had grudge, disliking and motive against Bilal Hassan.

Complainant PW-1 also filed private complaint in this case and in his statement recorded under Section 200, Cr.P.C., he introduced two more accused persons in this case namely Zakir Ali and Aslam and so much so he also stated on oath during his examination under Section 200, Cr.P.C. that accused Aslam fired at them with intention to commit their murder, but then subsequently appearing as PW-1 during the trial he again took somersault and omitted their name, and he was duly confronted with his statement Exh.DA in this regard, in order to prove dishonest improvement and then material omission. So ocular account is neither believable nor confidence inspiring, and we have reached at the conclusion that both aforementioned eye-witnesses are not truthful witnesses, hence cannot be relied upon.

PW-1 Shabbir Hussain in his statement before the Court has stated as under:–

“The injury of abdomen entered from right side and exited from left side whereas the head injury entered from left and exited from right side”

However, if we go through the postmortem report Ex.PE and statement of Doctor Abid Abbas (PW-3), entry wound on abdomen of the deceased is from left side; whereas entry wound on head is from right side, hence ocular account qua locale of injuries narrated by Shabbir Hussain PW-1 have been clearly contradicted by the medical evidence. It is the case of the complainant/prosecution that deceased received firearm shots from the distance of five feet but there is no blackening found on any wound in the postmortem report so medical evidence has contradicted the ocular account and falsified the presence of the eye-witnesses at the place of occurrence.

Postmortem examination over dead body of Bilal Hassan was performed by Dr. Abid Abbas PW-3 at 10.00 p.m. on 13.1.2012. As per version of the complainant occurrence took place allegedly at 3.00 p.m. In the postmortem report (Ex.PE) time of death has been mentioned as 1.00 p.m., therefore, postmortem has been performed after about delay of nine hours, for which, no plausible reason has come on the record, which fact speaks adverse to the claim of prosecution that FIR was promptly recorded rather it signals that it was an un-witnessed occurrence, this time has been consumed by the prosecution for engaging and procuring witnesses and then after consultation and deliberation, version has been concocted and incorporated in the record of the case i.e. police papers. Reliance is placed upon the case of “Haroon Shafique v. The State and others” (2018 SCMR 2118)

In column of date and hour of death in the postmortem report, doctor has mentioned 1.00 p.m. as time of death, which is quite contrary to the time given by the complainant in application Ex.PA, FIR Ex.PA/1 and private complaint Ex.PB. This postmortem report has been itself relied by the complainant and he has annexed the same with his complaint and got exhibited the same as Ex.PE during trial of the case and also got examined doctor as his witness (PW-3) and never challenged validity or veracity of said content of postmortem report i.e. time of death at 1.00 p.m. before any Medical Board, medical hierarchy and in complaint (Ex.PB). Even otherwise, if we see the time mentioned in the postmortem report by the doctor between the death and postmortem, same has been given as 8 to 10 hours, it coincides with the time of “death given by the doctor in the postmortem report i.e. 1:00 p.m. and examination of dead body at 10:00 p.m.”, which becomes nine hours; but if the time given in the FIR regarding death i.e. 3:00 p.m. is compared with time of post-mortem i.e. 10:00 p.m., it becomes seven hours, which is contradicted by the time given by the doctor i.e. 8 to 10 hours. So, this situation clearly points out that occurrence has not taken place at the time as alleged by the complainant rather at the time mentioned in the postmortem report.

7. As far as question of recovery of Kalashnikov at the pointing out of Arshad Ali appellant is concerned, same is of no help to the case of prosecution because the Kalashnikov as per report of Punjab Forensic Science Agency Ex.PD, has not matched with the empties allegedly secured from the alleged place of occurrence.

8. Coming to the question of abscondance, it is important to mention here that prosecution has to prove each limb of its case beyond shadow of doubt. We have gone through the proclamations of both appellants, i.e. Ex.PM, which pertains to Arshad Ali and Ex.PP, which is regarding Awais, these both do not contain the period within which accused were asked to surrender before the Court rather said column in both proclamations are blank, hence the mandatory requirement of the proclamation has not been fulfilled. So these proclamations are of no help to the case of prosecution. Furthermore abscondance is only a suspicious circumstance and it cannot cure the defect of substantial nature of the case of prosecution.

When ocular account has been disbelieved, then abscondance being corroboratory piece of evidence is of no help to the case of prosecution. Reliance is placed on the case of “Rohtas Khan v. The State” (2010 SCMR 566)

Although complainant did not produce copy of the FIR of motive case to prove the same yet appellants produced and got exhibited the same as Ex.DF/4, which shows that same cannot be considered as motive with appellants for committing murder of Bilal Hassan but same is reason for false implication of the appellants in the peculiar circumstances of the case. In this regard, guidance can be sought from the case of “Tariq v. The State” (2017 SCMR 1672) and relevant portion whereof is being reproduced:–

“The motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity, being double edge, could be reason for false implication of the appellant”

9. In view of above, we have found that prosecution has failed to prove its case against the appellants, hence, there is no need to discuss defence version.

10. Nutshell is that prosecution could not establish its case against the appellants, resultantly Crl. Appeals Nos.9/J and 12/J of 2016 filed by appellants are allowed, impugned conviction and sentence awarded to the appellants through the impugned judgment are hereby set aside. Appellants are acquitted of the charge. They shall be released from jail immediately, if not required in any other case. Murder Reference No.491/2015 is answered in negative and death sentence is not confirmed. Crl. Revision No.30/2016 also stands dismissed for the above reasons.

Now adverting to PSLA No.28/2016, filed by the complainant, for the reasons mentioned above coupled with the fact that no injury has been allegedly caused by Khadija Bibi and Adnan-ul-Haq respondents of this petition and their role is even otherwise, prima facie, not appealing to the common prudence as effective for the occurrence, thus, we have not found any perversity or illegality in the order of their acquittal rather same is quite in accordance with law and based upon reasons borne out from the record of the case. Even otherwise, after acquittal, accused attains double presumption of innocence and same can only be disturbed if some perversity, capricious or arbitrary phenomena is found in the same but nothing like that is available in the order of acquittal of respondents. Reliance is placed upon the case of “Haji Paio Khan v. Sher Biaz and others” (2009 SCMR 803). Hence, PSLA No.28/2016 is dismissed and leave is refused.

JK/A-76/L Appeals allowed.

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