JUDGMENT DOST MUHAMMAD KHAN, J. Appellant, Sher Akbar, has been handed down life term prison in a double murder case vide impugned judgment dated 18-6-2009 by the learned Sessions Judge Swabi.
2. Arguments heard and record perused.
3. The complainant, Mst. Sajida, reported the crime on 19-8-1996 at 11-00 hours to Police Station Kalu Khan (Swabi), alleging that at about 10-00 hours, she was accompanied by her husband Zaman Khan (deceased), her son Ayaz Khan (deceased) and her brother-in-law Ajab Khan to get treatment from a local hospital as she was not feeling well. When they reached "Garhi Mor" of village "Takhta Band", the appellant along with Sahib Zar, both real brothers, and Kamal Khan absconder, duly armed, opened firing at her husband and son, both were hit fatally and died on the spot. Motive for the crime was that the accused had complained against Ayaz Khan, deceased, who was employed in Police Department and on the said complaint, his services were terminated.
The case was registered tide F.I.R. No.692, Exh. PA, by Police Station Kalu Khan.
4. Both the dead bodies were dispatched to the mortuary for autopsy along with injury sheets and inquest reports.
5. One Said Bostan Khan, the then A.S.-I., then left for the crime spot, wherefrom, he secured blood stained earth from the places of both the deceased,. Twenty (20) empties of 7.62 bore Exh.P-1 from the places of the appellant, Sher Akbar, and convicted accused Sahib Zar while five (5) empties of the same bore Exh.P-2 were collected from the place of Kamal Khan, absconder, vide memo. Exh.
P:W.4/1. He also prepared the site plan Exh.PB, secured the clothes of the two deceased vide memo Exh.P.W.4/2, recorded the statement of the P.Ws. All the accused went into hiding, therefore, they were proceeded against under sections 204 and 87, Cr.P.C. The crime empties were sent to The arms expert .For safe custody, vide application Exh.P.W.9/2. He is witnessed to the recovery 'memo Exh.P.W.6/1, through which a spent bullet, Exh.P-9, was taken into possession by the then S.H.O. The same was sent by the medical officer during autopsy on the dead bodies.
6. After arrest of convicted co-accused, namely Sahib Zar, charge-sheet was filed in the trial Court and after holding trial, he was convicted to life imprisonment by the then learned trial Judge and his appeal was dismissed by this Court vide judgment dated 21-1-2002.
7. The appellant was arrested on 18-6-2008 by Police Station Yar Hussain (Swabi) and was handed over to the local police. His police custody was obtained but, during ,interrogation, nothing was discovered, hence, he was remanded to Jail.
8. At the conclusion of investigation, charge-sheet was filed in the trial Court, where, the prosecution produced nine (09) witnesses in all.
9. Learned counsel for the appellant vehemently contended that there are visible indications on record, showing preliminary investigation having been conducted on the spot before lodging the F.I.R.; therefore, the entire evidence is required to be subjected to careful scrutiny. He urged that in view of the facts and circumstances, it was an unseen crime and being a job of single man, however, three (03) persons of the same family have been implicated, thus, the net has been thrown much wider. He further contended that the nature of the motive set-up would strongly suggest that in fact the grudge and ill will did lay with the complainant party/deceased and not the accused. While elaborating his point of view, he invited our attention to the testimony of P.W.2.
Namely Muhammad Zaman, the close relative of the two deceased. This witness has given a fatal blow to the prosecution's case because he has excluded the presence of the complainant namely, Mst. Sajida (P.W.8.) from the crime scene. He further argued that Jamdad (P.W.4.), the first cousin of Zaman Khan (deceased) and uncle of Ayaz Khan (deceased), has squarely admitted in his cross- examination that he heard the reports of fire shots thus, was attracted to the spot, where, he saw both the dead bodies lying there and he along with his other co-villagers took the same to the police station and from the police station, lie accompanied the police to the crime spot. He further added that, the empties were lying in the field of maize crop and that he signed the recovery memo at the instance of the Investigating Officer, as he was illiterate and did not know about the contents.
10. Learned counsel for the State and the complainant, however, were consistent in their view that because co-accused, Sahib Zar, has already been convicted on the strength of the same evidence, more so, when his conviction was upheld by this Court, therefore, on that score alone this appeal is liable to be dismissed. They added that it was a daylight occurrence, the ocular account is supported by recovery of crime empties, medical evidence and long abscondence of the appellant, therefore, his conviction is fully sustainable.
11. We have attended to the entire facts and evidence on record with extra degree of judicial care to see as to how far the prosecution has been able in proving guilt of the appellant.
12. Leaving apart the damaging statements given by Muhammad Zaman (P.W.2.) and Jamdad (P.W.4.), some vital aspects of the case escaped the notice of the trial Court. It has come in the evidence that Zaman Khan, deceased, was a serving "Patwari" at the fateful time, he was having a motorcar in his house. If, at all, his were Mst. Sajida was suffering from a type of an ailment where, her examination by the doctor and treatment in the hospital was essential then, why she was not taken in. The motorcar with comfort. Why she was subjected to a tiring journey on foot, from village to the hospital.
13. The sole reason, the complainant has made a base line of becoming companion of the two deceased was that because she needed medical treatment. Whether both the deceased were required to give company, besides the third one namely, Ajab Khan, when the job could be conveniently accomplished by a single, person, preferably by her husband. What type of disease the lady was suffering from, is still a begging question receiving no plausible explanation from any source.
14. A look at the site plan would show that both the deceased, the complainant and Ajab Khan were proceeding from north to south-east, while, all the three accused have been shown at points 5, 6 and 7, situated in the field of Kalu Khan having been shown uncultivated / vacant one, however, Jamdad (P.W.4.) in his deposition, has exposed the dishonesty of the Investigating Officer by stating that the crime empties were lying inside the maize crop. The concealment of such vital fact by the Investigating Officer, reinforces the defence plea that patent dishonesty has been committed at different successive stages of investigation.
15. The plea of the defence, that preliminary investigations were conducted before lodging the F.I.R., gets support from the fact that Bostan Khan (P.W.9.), the Investigating Officer has admitted that except the F.I.R., all the rest of the documents are in his handwriting. He could not offer any plausible explanation for not writing the F.I.R. With his on hand when he was not suffering from any infirmity or disability. In his examination-in-chief, he claimed to have recorded the report with his on hand but when he was confronted with the rest of his handwritings, like the site plan notes, the statements of P.Ws. Etc, he then admitted the above fact. This abnormal circumstance would lead one to an unescapable conclusion that the dead bodies were lifted and taken by Jamdad (P.W.4.), the first cousin of Zaman Khan (deceased) and uncle of Ayaz Khan (deceased) with the help of co- villagers. These were shifted to the police station, however, he being not an eye-witness and the complainant too was absent, therefore, Said Bostan Khan, A.S.-I., decided to conduct preliminary investigation at the spot, to procure and setup false eyewitness. This abnormal conduct and behaviour, the officer has displayed, clearly points towards extreme dishonesty and traditional police chicanery, pressed into service in an important case of double murder.
16. Medical Officer, Dr.Qaim Shah (P.W.3.) found fourteen (14) entry wounds with two (02) tearing and one (1) shattered wound, on the left side of the body of Zaman Khan, deceased, who has been shown at Point No.1 in the site plan while Ayaz Khan, deceased, was having three (3) fire arm injuries on left chest near auxiliary line and right lateral chest, the third one on the right flank. This picture would give rise, to two possibilities that either the deceased were tired at from two directions or it was a job of single man, who tired first at Zaman Khan, deceased, hitting him on his left, which, in the given situation, was impossible because all the three accused have been shown towards his right and right-front. The next possible inference might, be that after firing at deceased Zaman Khan, Ayaz Khan, deceased, probably turn back and got injuries on his front and right side.
Even' if both the possibilities are taken at part, the ocular account comes in conflict with the medical evidence. The clash appears irreconcilable; therefore, under the well settled principle of justice, the benefit of doubt shall go to the accused.
17. If the statement of Jamdad (P.W.4.), being close relative of the deceased, is accepted, who has sown standing maize crop near the places where the crime empties were lying then, this circumstance becomes fatal for the prosecution. The occurrence took place on 19-8-1996 when by then, the maize crop must be of a reasonable height and a man in sitting position, could conveniently conceal his identity therein. Again looked at from another angle, if at all, the appellant and the convicted accused were present at points 5 and 6 a vacant place/field, then they must have been visible to the two deceased, moreso, when they both were holding Kalashnikov rifles which could not be concealed, this fact being highly alarming one. The deceased perceiving dire threat to themselves must have taken immediate precautions but they proceeded ahead unmoved by a visible danger. This story is not appealing to prudent mind being unnatural. Such unnatural human behaviour, under no circumstances, could be endorsed keeping in view the provisions of Article 129 of the Qanun-e-Shahadat Order. In any case, in our view, the occurrence had neither taken place at the time, shown in the F.I.R., nor in the manner setup by the prosecution.
The plea of learned counsel for the complainant and the State that because co-accused has been convicted earlier, therefore, this appeal of the appellant shall be dismissed, is not sustainable in law. The law of the land has provided a right of fresh trial to each accused, surrendering subsequently and the Court of law is bound to apply its independent judicial mind while making appraisal of evidence against him, uninfluenced by the previous conviction or acquittal of co- accused. If such plea is allowed to prevail then, fresh trial of the subsequently arrested accused would become just a fancy trial- defeating the object of law and principle of justice.
18. In the present case, during the trial of convicted co-accused, the defence was unable to shatter the prosecution evidence by way of cross-examination thus, all the facts explained above, went undiscovered during his trial. These fresh - discoveries, highlighted above, if were available in the case of co-accused, he too would have not been convicted rather would have earned acquittal. In any case, keeping in view the statutory law and the principle of justice, case of each accused must be considered independently on the strength of evidence available against. Him..
19. In the instant case, two real brothers i.e. The convicted co-accused and the appellant have been charged beside, Kamal Khan, absconder, who too belongs to the same family. From the facts and evidence, the tragedy appears to be a job of a single person, as in the case of fully D automatic. Weapon like Kalashnikov rifle causing of such number of injuries was not impossible for a single man thus, in our view, besides an unseen crime, the net has been thrown much wider due to consultation and deliberation made before the registration of the case.
20. In a murder case, once a witness is found telling lie on one material aspect of the case then, ordinarily he/she shall not be
21. c believed with regard to the other aspects. Of E the case unless the testimony given is fully corroborated by strong independent corroboratory evidence which is not the case in hand.
22. At the trial of the appellant, one Ajab Khan, the first cousin of Zaman Khan (deceased) and uncle of Ayaz Khan (deceased), was abandoned being won over, however, he appeared as DW-1 and stated that the occurrence took place at 9-00 or 9-30 a.m.
As lie was informed in his house. He learnt, that some proclaimed offenders fired at the two deceased from inside the maize crop and that the complainant, Mst Sajida, arrived at the spot later. He F enquired from her about the culprits but she expressed ignorance about the occurrence and culprits both. He denied to be an eyewitness of the occurrence. He is remotely related to the appellant. We would have discarded his testimony, suspecting him favouring the appellant for ulterior consideration, however, his testimony is getting very strong support from that of the testimony of two important witnesses namely Muhammad Zaman (PW-2) and Jamdad (P.W.4.), therefore, the same could not be lightly ignored.
22. In support of our view that the incident appears to be the job of one man, we are guided by the rule laid down by the Hon'ble Apex Court in the case of "Farman and others v. The State" (PLD 1980 SC 201), where, three persons including, two brothers were charged but it was held that .32 bore pistol, a semi-automatic weapon would cause several injuries if fired by one man. It was further held that being a job of one man, the net was thrown wider. The Hon'ble Apex Court discarded even the Dying Declaration in that case.
23. Almost in similar circumstances, in the case of "Zaley Mir alias Zaley v. The State" (1997 PCr.LJ Peshawar 510) this Court while not taking into consideration the conviction of one Peer Muhammad, co-accused, earlier recorded and upheld by the High Court, held that the medical evidence was in conflict with the ocular account and that the only circumstance going against the appellant was his prolonged abscondence for about four (4) years, however, when the crime is held to be an unseen one then, abscondence by itself would carry no importance nor a person can be convicted on a capital charge on that account.
24. We have also found that in the injury-sheet of Zaman Khan, deceased, the penal section of law applied is only 302, P.P.C. In our view, this injury-sheet was prepared at the time when by then no report was lodged with the police.
25. In addition to the above, we are unable to believe that the lady and Ajab Khan both, belonging to a criminal rural district of Swabi, could not identify the crime weapons i.e. Kalashnikov rifles possessed by the accused because this formidable weapon was introduced into this region some thirty (30) years back and even a child of 7/8 years of the area would commit no mistake in identifying the same but in the F.I.R. The crime weapons attributed to the accused have been described in general terms as 'fire arms' without specifying its caliber. No effort was made to apply to the arms expert for opinion as to whether the empties were fired from a single rifle or more .Than one rifle of the same bore because under the cardinal principle of criminal justice it is imperative for the prosecution to prove the individual participation of each accused in the crime. This piece of evidence was deliberately suppressed from the Court of law with the view to deliberately lead it to a wrong conclusion.
26. The lonely eyewitness, whose presence on the spot is not established, has also made deliberate improvements, the Investigating Officer has also concealed established facts on record then, their testimony could not be relied upon without strong corroboration, coining from unimpeachable source. No such evidence is available in the case. Reliance in this regard is placed on the view held by the Hon'ble Apex Court in the case of "Kamal Din v. Muhammad Sharif" (1987 SCM R 1264).
Similarly, it has also been ruled by the Hon'ble Apex Court that a single doubt, found reasonable, would be enough for acquittal of accused and not a bundle of doubts. The case of "Riaz Masih alias Mithoo v. The State" 1995 SCM R 1730 may be referred. Our view also gets support from the view held by this Court in The case of "Younus Warind v. Nazir Ahmad Siddiqui" (1997 PCr.LJ ,Peshawar 549)
(at page 510) with regard to the non-examination of crime empties by the arms expert as to whether these were tired from one rifle or more than one, benefit of that doubt was given to accused.
27. Judged and considered from all the above aspects, we are of the considered view that the prosecution has miserably failed to prove the guilt of the appellant beyond any shadow of doubt, therefore, while extending him benefit of doubt, this appeal is allowed. Conviction and sentences of the appellant recorded by the learned trial Judge are set-aside and lie is acquitted of all the charges levelled against him. He be set free forthwith, if not required in any other case.
These are the detailed reasons for our short order of the even date.