JUDGMENT LIAQAT ALI SHAH, J.--- Muhammad Hakeem son of Khan Muhammad (hereinafter referred to as the appellant), has assailed the judgment of learned Additional Sessions Judge/JSC- VI, Peshawar dated 16-4-2009 while convicting him under section 302(b), P.P.C. Has sentenced him to life imprisonment with compensation of Rs.3,00,000 payable to the legal heirs of the deceased according to their Shari Shares, under section 544-A, Cr.P.C, recoverable as arrears of land revenue, in default R.I for one year with benefit of section 382-B, Cr.P.C.
2. Facts, forming the background of this appeal, are that Mst. Saleha complainant (P.W.1) were of Abdul Manan, on 13-5-2004 at 21-30 hours made a report to the local police on the spot, which was recorded in the shape of murasila (Exh.PA/1), to the effect that on the eventful day she along with her deceased son, Abdul Hanan, was present on the spot when in the meanwhile the appellant along with acquitted co-accused Sahar Gul son of Umar Gul and Farooq Ahmad son of Amir Ahmad, duly armed with fire-arms, came there and on the command of acquitted co-accused, the appellant fired at her son. The firing proved effective and her son got injured. Accused decamped after the commission of offence. The deceased, then injured, was being taken in Rickshaw to the hospital but in route he succumbed to the injuries. The occurrence was stated to have been witnessed, besides her, by her son Mumtaz and one Nisar Milk seller. Motive for the offence was an altercation because of eunuch between the accused and deceased 3/4 days prior to the occurrence. The murasila was recorded at 22-00 hours.
The murasila was sent to the Police Station for registration of the case where F.I.R. No.341 (Exh.PA) was registered at 22-30 hours.
3. During spot inspection two empties of .30-bore were recovered vide memo. Exh.P.W.9./1 and sealed into parcel P-1. Similarly blood was also taken into possession vide memo. Exh.P.W.9/2. The blood stained shirt and Shalwar of deceased were taken into possession vide memo. Exh.P.W.9/3. A spent bullet, sent by the doctor extracted from the dead body of the deceased during postmortem examination, was taken into possession vide memo. Exh.P.W.9/4. The house of the appellant was raided by Shafiullah S.H.O. According to recovery memo (Exh. P.W.9/5) a .30-bore pistol along with 33 live rounds, bandolier and charger were recovered from the appellant and case F.I.R. No.343 dated 13-5-2004 under section 13 A.O, Police Station Gulbahar was separately registered. The above articles were taken as case property in the instant case. Copy of F.I.R. 343 under section 13 A.O. Was brought on record as Exh.P.Z./2. The same were produced to the Investigating Officer by Gul Muhammad HC which was sealed into parcel. The site plan (Exh.PB) was prepared at the instance of complainant and eye-witnesses and later on some points were added on the pointation of Abdul Manan and Salem. Father and brother of deceased respectively.
4. The pistol recovered from the appellant was sent to the FSL along with two empties. According to the FSL report Exh. P.W.9/8, one empty marked C-2 was fired from .30-bore pistol No 290690 k4 whereas the other empty C-1 was not fired from the same pistol. The inquest report is Exh.PK/1. In the column of identifier initially the name of Abdul Hanan was written, however, subsequently it was substituted by Yousaf son of Khan Muhammad and the other identifier is Muhammad Nisar son of Sultanat Khan who was examined as P. W.2. The PM report is Exh.PM. During postmortem examination the following injuries were found: -
(1) F. A entry wound on right back upper arm, 0.5cm in diameter, 22 cm from shoulder and 12 cm above the elbow.
(2) F.A exit wound on the inner aspect of right upper arm 1.5 x 1 cm in size, 7 cm below the exila, and 17 cm above the elbow.
(3) F.A re-entry wound on right outer chest 1.0 x 8 cm in size, 16 cm below the right nipple and 13 cm below the Texila.
In the column pertaining to "Stomach and its contents" it is mentioned "healthy and having semi- digested food".
5. After completion of investigation the accused was sent to face trial. At the trial the prosecution produced 10 witnesses and thereafter statement of the appellant was recorded under section 342, Cr.P.C. The appellant denied the allegations and professed innocence.
6. Complainant Mst. Saleha was examined as P.W.1. She reiterated the same version as was given by her to the police and recorded vide murasila Exh.PA/1. She stated that at the time of occurrence the accused came to the spot in a motor car from Shah Dhand side and fled away from the spot after the commission of offence in the said motorcar which was parked at some distance. She stated that at the time of inspection of the spot by the I.O. She was present, however, at the time of preparation of the site plan she was in the house. She further stated that her deceased son was standing in the street along with his father and she went after them for calling them to take meal.
She denied the suggestion that the deceased was done to death in her house by some one else.
She denied the suggestion that she had not shown the presence of her husband in the report. She admitted that at nine p.m. There is always dark. She further stated that the Rickshaw was arranged by her son Mumtaz in which the deceased, then injured, was put and was being taken to the hospital. She has further stated that after the report she went to her house whereas the dead body of the deceased was taken to the Police Station and P.W. Mumtaz accompanied the dead body of the deceased.
Mumtaz was examined as P.W.2. According to his statement he was present near the shop of P.W.
Nisar milk seller when he noticed the appellant firing at his deceased brother and that after the commission of the offence the appellant fled away from the spot and that he chased the appellant and on return to his home he found that his brother was hit from the firing and was removed from the place of occurrence to his house by P. Ws. Salim and Nisar and that he also followed them to the hospital and thereafter shifted the dead body of the deceased from the hospital to the Police Station. In cross-examination he admitted that he was charged by one Farooq son of Qaiser Khan for firing at him effectively on 3-10-2004 and that the motive for that offence was that the witness was suspecting Farooq for the murder of his deceased brother Abdul Hanan. The witness further stated that the report was made by them in Police Station Gulbahar and that it was made by himself and his mother. He was confronted with his statement under section 161, Cr.P.C. And he stated that it is incorrectly recorded in his statement that he had not seen any person while firing at the deceased.
Shafiullah Khan DSP was examined as P.W.3. This witness was posted as S.H.O. Police Station Gulbahar during the relevant days. According to him he was on patrol duty when he received information that a murder has taken place and on such information he rushed to spot and found the complainant Mst. Saleha who reported the matter to him which was recorded in the shape of murasila Exh.PA/1. He prepared the injury sheet and inquest report of the deceased Exh.PK and Exh.PK/1 respectively and dispatched the dead body to the mortuary for PM examination under the escort of Amir Taus HC. He then raided the house of acquitted co-accused Sahar Gui and Farooq and they were apprehended. Similarly he also raided the house of the appellant and arrested him from his house. From the possession of the appellant a pistol (the crime weapon) was recovered and a separate F.I.R. No.343 under section 13 Arms Ordinance was registered. During cross- examination he admitted that he had received information about the murder only. He admitted that the arms and ammunitions recovered by him were not sealed. He further admitted that the distance between the house of acquitted co-accused and the appellant would be one Kilometer.
He also admitted that he had not prepared the site plan in case under Section 13 A.O.
Yousaf Ali son of Khan Muhammad was examined as P.W.4. He is identifier of the dead body. In cross- examination he stated that he accompanied the dead body of the deceased from Police Station to the mortuary.
Shamroz HC No.1131 was examined as P.W.5 who is marginal witness to the recovery of blood stained garments of the deceased and spent bullet sent by the doctor.
Amir Taus Khan IHC was examined as P.W.6. He accompanied the dead body of deceased.
According to his cross-examination the dead body was taken to the mortuary by him from the Police Station.
Badshah Gul A.S.-I. Was examined as P.W.7. This P.W. Had registered the F.I.R. (Exh.PA) on receipt of murasila. He confirmed that the F.I.R. Was in his handwriting and was signed by him. In his cross- examination he admitted that F.I.R. Exli.D.W.7/1 was also in his hand-writing and that F.I.R. Was registered at the instance of Muhammad Farooq son of Qaiser Khan against Mumtaz son of Abdul Hanan and that it was a case of effective firing.
Dr. Sheryar Nadeem was examined as P.W.8 who confirmed the postmortem report. According to his statement the postmortem was conducted at 8-00 a.m. On 14-5-2004 and the postmortem lividity and rigor mortis were fully developed. He found the injuries which have already been mentioned herein above. He admitted that casualty chit Exh. P.W.8/2 was visibly tampered about the time of arrival. He also confirmed that Exh.P.W.8/1 the inquest report was also signed by him and likewise Exh.PK and that the casualty chit was also signed by him.
Jinab Dad Khan S.-I. Was examined as P.W.9. This witness has conducted investigation. According to him he had made addition in the site plan at the instance of the father of the deceased, Abdul Manan, which is. Exh. PB/1. Accordingly to his statement he had recovered two shells Exh.P1 and the same were taken vide memo. Exh.P.W.9/1. He has also taken into possession the blood stains from the spot vide memo. Exh.P.W.9/2, the garments of the deceased vide memo. Exh.P.W.9/3, one spent bullet Exh.P5 sent by the doctor vide memo. Exh.P.W.9/4, one .30-bore pistol Exh. P6 along with 33 rounds of the same bore Exh.P7, one bandolier Exh.P8 and one charger Exh.P9. The above articles were produced by Badshah Gul Moharrir to him and he took the same vide memo. Exh.P.W.9/5. This witness had sent the blood stained garments as well as the pistol and empties to the FSL and brought on record the result of the same as Exh.P.W.9/8. He had recorded the statements of P.Ws.
Under section 161, Cr.P.C. In cross examination he admits that point 1-A is inside the house and that no blood trail between point 1 and 1-A and similarly no blood was found at point 1. He had not verified the motive. The statements of Nisar and Mumtaz, recorded under section 161, Cr.P.C. Were exhibited as Exh.D and Exh.D1 respectively. The addition in the site plan was in respect of presence of Abdul Manan father of the deceased and Saleem on 17-5-2004. According to him Abdul Manan and Saleem are not the eye-witnesses and they appeared before him on 17-5-2004.
Gohar Ali was examined as P.W.10. He is witness to the recovery memo Exh.P.W.9/2. According to him the blood was taken from inside the house of complainant.
7. Learned counsel for the appellant argued that the time of occurrence and time of report is apparently incorrect as under no circumstances it could have been reported within 30 minutes.
Elaborating his submission he stated that it is not the case of the prosecution that the Rickshaw was readily available rather it has come in evidence that it was arranged and the arrangement of Rickshaw and then placing the deceased, then injured, and taking him to the LRH and then again bringing him to the spot would have definitely consumed much more time and the dishonesty on the part of the S.H.O. Is evident from this fact alone. Next contended that the same S.H.O. Claims to have recovered the pistol from the possession of appellant, is highly doubtful for the reason that none of the witnesses has been produced to substantiate the fact that any such like recovery was effected in their presence nor their names are mentioned. He next submitted that except for the copy of F.I.R. Exh.PZ/2 no other document including the recovery memo. Has been brought on record to establish that the pistol was in fact recovered from the appellant. He next contended that the spot is highly disputed as no blood was found on point-1 assigned to the deceased whereas the blood is shown to have been recovered from point 1-A which is situated inside the house of the complainant and this fact lends ample support to the plea that deceased was done to death by someone in his home. He next contended that the complainant has shown her presence for the reason that she had gone to call her son and husband for meals. He submitted that normally the people go to their homes themselves when it is time to take meal but this fact has been introduced simply to create a justification for presence of the complainant on the spot. He next submitted that this version of the complainant is otherwise negated by the medical evidence which suggests that the deceased had already taken meal as according to the relevant column at the time of postmortem semi-digested food was found in the stomach. He next submitted that the fact that matter was reported on the spot by itself is highly doubtful as the identifiers as well as the witnesses, who had accompanied the dead body to the mortuary, have stated that the dead body was identified in the Police Station and was taken to the mortuary from the Police Station. Next submitted that the eyewitnesses have contradicted' each other on material points i.e. The complainant has stated that the accused had come in a motorcar whereas in the statement of P.W.2. No reference whatsoever has been made to the motorcar. In the same sequence the learned counsel contended that complainant has stated that the accused had come to the spot in a motorcar and fled away in the same motorcar whereas P.W.2. Had stated that he noticed the appellant firing at his deceased brother and after the commission of the offence he fled away from the spot and that he chased the appellant. While referring to the contradiction between the two statements, the learned counsel stated that complainant had stated that the acquitted accused and the appellant came there in a motor car whereas P.W.2 has mentioned only the appellant and has not uttered a single word about the acquitted accused. The learned counsel further submitted that it is strange enough that initially when the site plan was being prepared at the instance of eye-witnesses, the presence of Abdul Manan is not given whereas it was on 17-5-2004 that at the instance of Abdul Manan points 8 and 9 were added where the presence of Abdul Manan and his other son Saleem has been shown. He next contended that neither Abdul Manan was examined during the trial nor Saleem brother of the deceased. It was also submitted by the learned counsel for the appellant that the motive has not been established and when it is not established then the statement of witnesses are to be scrutinized with great care and caution, more particularly when the witnesses are highly interested. Reliance was placed on 2010 SCM R 97. The learned counsel further submitted that the statement of PW2 to the effect that he was charged for effectively firing at Farooq son of Qaiser Khan and the motive for that offence was that the witness was suspecting the said Farooq for the murder of his deceased brother Abdul Hanan. He lastly argued that it appears to be an unseen occurrence.
8. Learned counsel for the complainant argued that the appellant is charged in a promptly lodged F.I.R.; that he is the only accused who has been assigned the effective role; that the crime weapon was recovered from his possession and when sent with the empties recovered from the spot, the report of the FSL confirmed that one empty was fired from the pistol recovered from the appellant; that the statements of P. Ws. Are consistent and the medical evidence supports the prosecution's case.
9. Learned Additional Advocate-General also supported the impugned judgment on variety of grounds.
10. We have considered the arguments of learned counsel for the appellant, learned counsel for the complainant, learned Additional Advocate General for the State and gone through the record.
11. We would first examine the statements of .The two eye-witnesses i.e. P.Ws. 2 and 3. Both 'the witnesses materially contradict each other. P.W.2 had stated that three accused had come in a motorcar and after commission of the offence they left in the same motorcar whereas P.W.3 stated that he saw the appellant firing at his brother and he gave chase to him as well. These two versions can, in no manner, be reconciled. It is the case of the complainant that her deceased son was standing in the street along with his father and she had gone to bring them for meal. P.W.2 has not uttered a single word about the presence of his father along with the deceased at the relevant time. The complainant has not mentioned the presence of her husband in the F.I.R. The complainant states that the deceased was taken from the spot to the hospital whereas P.W.2 states that after chasing the accused when he came back, the deceased, then injured, was shifted to his house.
12. The fact that the matter was reported on the spot is also open to serious doubt.
P.W.1 had stated that after the report on the spot, the dead body was taken to Police Station.
Similarly P.W.2 also stated that after hospital the dead body was shifted to Police Station. When injury sheet and inquest report were prepared on the spot and dead body was sent to hospital, what for it was taken to the Police Station. When the deceased was taken to the hospital for PM examination and the PM was also conducted on 14-5-2004 at 8-00 a.m., why the said two P.Ws.
Had stated that the dead body was taken to the Police Station.
Amir Taus (P.W.6) in his cross-examination had stated that the dead body was taken to the mortuary by him from the Police Station. Similarly, Yousaf Ali (P.W.4) is identifier of the dead body.
He stated that he had accompanied the dead body of the deceased from the Police Station to the mortuary whereas according to Shafiullah (P.W.3) the then S.H.O., after recording the murasila on the spot, he prepared the injury sheet and inquest report of the deceased and dispatched the dead body under the escort of Amir Taus HC who contradicts P.W.3. When the two witnesses have categorically stated that the dead body was taken from the Police Station, that would create serious doubt about the report made on the spot. Here we would like to refer to the statement of doctor as well who, in view of the nature of the injuries caused to the heart and both lungs, has opined that the death was caused immediately after receiving the injuries. In view of the above statements of the eyewitnesses and two other witnesses, referred to above, coupled with the opinion of the doctor, we entertain doubt "about the place of report and the submission of the learned counsel for the appellant appears to be well founded that the dead body was brought to the Police Station and thereafter the S.H.O. Had gone to the spot and told about the death of the deceased to the complainant and recorded the report at her instance in the shape of murasila by giving 30 minutes time between the time of occurrence and time of report.
It is not the case of the complainant that after the occurrence the deceased, then injured, was taken to home rather she had stated that the deceased, then injured, was taken in a Rickshaw to the LRH from the spot. If it was so, then how blood was found in the house of the complainant.
We also entertain doubt about the spot. No blood was found on the spot though there was inlet as well as exit wounds and heart was damaged along with both lungs and injuries to either of the two, would cause excessive bleeding. In such circumstances, when no blood was found on the spot or on the point assigned to the C deceased or for that matter close to that point, the venue of the occurrence, as is claimed by the complainant, is also not free from doubt. We would like to refer here to the fact that the occurrence had taken place on 13th of May, 2004.
The admission of P.W.2 that he was charged by one Farooq for effectively firing at him and the motive behind that was that the said PW was suspecting Farooq for the murder of his deceased brother, is also a circumstance, creating doubt in the prosecution case.
The submission of the learned counsel for the complainant as well as the learned Additional Advocate General that in case of single accused substitution is rare phenomenon is not a rule of universal application. Each case has its on facts and is to be decided on those facts. About the positive FSL report, we may observe that no witness has been produced to establish that the crime pistol was in fact recovered from the appellant by P.W.3 in his presence. Even this report, otherwise too, also do not support the prosecution's version for the reason that the witnesses have charged one person i.e. The appellant for firing whereas two empties were recovered and according to the FSL report only one empty was fired from the pistol allegedly recovered from the appellant and in such a situation the firing would have been made by two persons and not by one.
Yet another aspect cannot be over looked. The acquitted accused as well as the appellant, all the three were arrested on the very day of occurrence that too from their houses. Normally when someone commits an offence, involving capital punishment, he would try to avoid his arrest but in this case the appellant was found present in his home that too along with crime weapon which also cast serious doubt about the charge as well as the recovery of pistol.
13. For what has been discussed above, we are of the view that the case against the appellant is not free from doubt and, as such, while extending him the benefit of doubt, we accept this appeal, set-aside the conviction and sentence of the appellant and acquit him of the charge. He be set free forthwith, if not required in any other case.