' QALANDAR ALI KHAN, J--- ' This criminal appeal by both the convicts/ appellants, Khaliq Dad and Safeer Ahmad, is directed against the judgment/order dated 28.07.2012 of the learned Sessions Judge, Abbottabad, whereby, the appellants were convicted under section 302(b), P.P.C. Read with section 34, P.P.C. And sentenced to life imprisonment with fine of Rs,50,000/- each payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof to further six months R.I. The amount of compensation was ordered to be recovered as arrears of land revenue. Accused Safeer was also convicted under section 337-F(iv), P.P.C. And sentenced to one year R.I and fine of Rs,20,000/- as 'Daman' to the injured complainant. Benefit of section 382-B, Cr.P.C. Was extended in favour of the accused with order of all the sentences to run concurrently.
2. The case under sections 302/ 337-A(ii)/34, P.P.C. Was registered in Police Station Mir Pur, Abbottabad, vide FIR No,487 dated 21.06.2010 on the report of Professor Begum Rashida Sahibzada, who reported to the police on the spot at 05.15 hours on 21.06.2010 that her husband Sahibzada Latif woke up in the morning at 0400 hours and went to the washroom and returned after sometime and asked her at about 04.30 hours to prepare tea for him. She stated that when she was going to prepare tea for her husband, the main door of the house was open and in the meantime, two persons entered the house, out of whom one was recognized by her as Khalid Tailor son of Umar Zardad who had remained her tenant and the other person was his brother-in-law who used to reside with him. After entering the house, they pushed her and when she tried to resist their entry the said Khalid aimed his pistol on her and pushed her back and he opened fire on her husband Sahibzada Abdul Latif with his pistol which hit him on his neck and the brother-in-law of accused Khalid also caused her injury with blows of butt of the pistol. She raised alarm which attracted her neighbor Muneer but her husband had succumbed to the injuries. Therefore, the complainant charged accused Khalid and his brother-in-law for the Qatl-i-Amd of her husband and causing injuries to her. She revealed that the accused were her tenants to whom her house and shop were given on rent but they committed theft, therefore, they were evicted from both the house and the shop. The complainant claimed that PW Muneer was the first to reach the spot followed by other residents of the Mohallah.
3. After reducing into writing report of 'the complainant in the shape of Murasila, Ishtiaq Hussain ASI prepared injury sheet and inquest report of the deceased showing firearm injury on the neck and forehead along with signs of resistance and marks of violence on the body of the deceased. The postmortem examination of the deceased revealed the following:-- External examination Extremely pale looking old man with good physique lying in supine position on autopsy table with extensive bleeding from neck and chest wound. No rigor mortis or lividity developed.
INJURIES I. Lx 1 cm would with blackening at the base of the neck in the middle with blood pouring out.
An exit wound 2x2 CM left posterior chest at the level of angle of scapula along with posterior auxiliary fold with blood and clots pouring out.
3. Left eye with swelling and ecchymosed with bleeding from the lower eye lid.
Similar wound with lacerated margins 2"-3" inches above the middle of the forehead THORAX ' Fracture 6th and 7th ribs along posterior auxiliary fold left side.
PLEURAE. Pleurae damaged with shattered left lung and about 2 liters of blood in the pleurae cavity left side.
LEFT LUNG.
' Shattered and collapsed. PERICARDIUM AND<./u> HEART. Damaged.
BLOOD VESSELS.
Pulmonary vessels of the left side torn.
ABDOMEN Stomach and its contents: Intact and residual food particles.
MUSCLES, BONES AND JOINTS. Already discussed in thorax. Opinion: In the opinion of Medical Officer, death of the deceased occurred due to massive haemorrhage in the neck and left side chest due to damage of pulmonary vessels and collapsed lung, secondary to FAI entering from neck passing down to left lung, pulmonary vessels and passing out of chest, (left side) resulting in hypovolemic shock, and cardio pulmonary arrest. Probable time that elapsed between injury and death: 0- 30 minutes and between death and postmortem 3 to 4 hours.
4. The injured complainant was also got examined through Lady Doctor Nusrat Ara, Medical Officer, DHQ Hospital, Abbottabad, who found the following:-- "There is a deep lacerated wound on the skull with fresh bleeding 2 CM behind anterior hair line and 3 CM lateral to midline of the skull. Size of wound is 1-1/2 x 2-1/2 CM. Bone is exposed, resulted from hard sharp object. Some 4 to hours old. Advice X-Ray skull AP and Lateral view and report from Radiologist."
5. The complainant also recorded her supplementary statement under section 161, Cr.P.C. On 29.11.2010 wherein she narrated almost the same story with the addition that Khaliq Dad son of Muhammad Zardad who was previously her tenant and his brother-in-law namely Safeer Ahmad son of Muhammad Sultan who also used to reside with Khaliq Dad entered the house and committed the offences. She, therefore, charged both the convict/appellants for the offences.
During investigation, the I.O. Inspected the spot and during spot inspection on the day of occurrence i,e, 21.06.2010, the I.O. Secured blood stained bed sheet, blood stained pillow cover and a .30 bore empty giving fresh smell of discharge from the places assigned to the deceased and convict appellant Khaliq Dad, respectively, in the site plan. The report of the chemical examiner with respect to the bed sheet, pillow cover and garments of the deceased and the injured was received in the affirmative. The convicts/appellants were arrested and after completion of investigation, complete challan in the case was submitted on 16.07.2010, leading to commencement of trial and framing of charge against both the convicts/appellants under sections 302/337-A(ii) read with section 337- F(iv) and section 34, P.P.C., to which they pleaded not guilty and claimed trial.
6. In support of its case, the prosecution led its evidence comprising sixteen P.Ws, namely, Doctor Ashfaq Ahmad SMO BBS Hospital, Abbottabad (PW-1), Khalid Mehmood SI CC Branch SP Office, Abbottabad (PW-2), Muhammad Shakeel No,865 Police Post Mangal P.S. Mir Pur (PW-3), Ishtiaq Hussain A.S.I. Police Post Mangal P.S. Mir Pur (PW-4), Abdur Rehman (PW-5), Sahibzada Muhammad Arif (PW-6), Sahibzada Azhar son of Sahibzad2 Abdul Latif deceased (PW-7), Naseer Ahmad A.S.I.
Police Station Cantt. (PW-8), Muneer Ahmad (PW-9), Abdul Qayyum A.S.I. Police Post Pohar (PW-10), Fazal ur Rehman Khan Inspector P.S. Mir Pur, Abbottabad (PW-11), Safeer Ahmad son of Faqir Muhammad (PW-12), Rafaqat LHC/ Moharrar Police Post Kohala P.S. Bakot (PW-13), Lady Doctor Nusrat Ara, Medical Officer, DHQ Hospital, Abbottabad (PW-14), Mst. Rashida Begum widow of Sahibzada Abdul Latif, complainant (PW-15) and Abdul Maroof S.H.O. P.S. Phulra, Mansehra (PW- 16).
7. After prosecution closed its evidence, statements of both the convicts/ appellants were recorded under section 342, Cr.P.C., wherein, they refuted the allegations of the prosecution and Gul Nawaz (DW-2), Kaleem Akhtar (DW-3) and Tahir Iqbal (DW-4) were produced as defence witnesses by Khaliq Dad convict/ appellant besides himself appearing as DW-1 and recorded his statement on oath under section 340(2), Cr.P.C. On conclusion of trial, the learned Sessions Judge, Abbottabad, rendered judgment dated 28.07.2012, which is impugned herein.
8. Arguments of learned counsel for the convicts/appellants and learned Assistant Advocate General assisted by learned counsel for the complainant heard, and record perused.
9. In the FIR, the complainant charged Khalid Tailor son of Umar Zardad and his unnamed brother- in-law who statedly was residing with Khalid when he was her tenant, for the Qatl-i-Amd of her husband Sahibzada Abdul Latif by firing at the deceased with pistol while attributing the role of firing at her deceased husband to the said Khalid and injuries on her head with butt of his pistol to the said brother-in-law of Khalid. The occurrence allegedly took place at 04.30 hours which was obviously, early morning prayer time on the eventful day i,e, 21.06.2010 and since the occurrence was shown to have taken place inside the house the complainant was the sole eye-witness and PW Muneer and other residents of the Mohallah were later attracted to the spot when she raised alarm after commission of the offence by the accused named in the FIR. After more than five months of the occurrence, on 29.11.2010, the complainant charged the convict/appellant Khaliq Dad by correctly mentioning his name as Khaliq Dad son of Muhammad Zardad instead of Khalid son of Umar Zardad, mentioned in the FIR and also mentioned the name of his brother-in-law as Safeer Ahmad son of Muhammad Sultan. PW Muneer Ahmad, mentioned in the FIR stated in his statement before the Court that names of both the convicts/ appellants were mentioned to him by the complainant as Khaliq Dad and Safeer when he arrived at the spot after the occurrence.
10. The intriguing aspect of the case is that names of both the convicts/appellants were correctly mentioned as Khaliq Dad and Safeer Ahmad in the site plan prepared by the I.O. On the day of occurrence i,e, 21.06.2010, and they were also arrested after few days of the occurrence but their actual names were withheld by the complainant for sufficient long time for the reasons best known to her and to the prosecution.
11. Obviously, it was still dark when the occurrence took place but neither the location of source of light was mentioned in the site plan nor bulb lit on the spot at that time was taken into possession to prove availability of electricity facilitating identification of the accused by the complainant.
12. The postmortem report showing entry wound at the neck of the deceased with blackening and exit wound at left posterior chest at the level of angle of scapula along with the posterior auxiliary fold would not only suggest firing from a close range but also the bullet travelling downwards, which would certainly raise some questions about the body position of the deceased at the time of occurrence. The assertion of the complainant with respect to the main door of the house remaining open at the odd hours thus facilitating the entry of the convicts/appellants into the house during those early hours would also add to this confusion. The deep lacerated wound on the skull of the complainant, resulting from hard sharp and exposing bone also tend to raise question about alleged use of pistol butt by convict/appellant Safeer Ahmad for causing injury on the head of the complainant. Additionally, the wound on the forehead of the deceased and fracture of his 6th and 7th ribs along posterior auxiliary fold left side tell a different story.
13. Although there was exit wound on the body of the deceased but no spent bullet was recovered from the room where the occurrence allegedly took place. The evidence available on the record, particularly the site plan, indicating the residence of one Zaheer Ahmad situated in the immediate neighbourhood of the scene of occurrence as compared to PW Muneer Ahmad would also give rise to questions about absence/omission of the name of the said Zaheer Ahmad from the list of P.Ws.
And inclusion of the name of Muneer Ahmad not only in the FIR but also as a PW in the list of P.Ws, moreso, when PW Safeer Ahmad, residing across the road, also arrived at the spot after being informed of the occurrence. In the circumstances, the sole ocular account furnished by the complainant, replete with improvements on certain material points, and receiving no independent corroboration such as recovery of weapon of offence or confessional statements of the convicts/appellants, hardly provided a valid justification for their conviction and sentences awarded to them in the light of discrepancies in the case of the prosecution, pointed herein above, creating reasonable doubt in the case against the convicts-appellants.
14. In the light of above discussion, the conviction and sentences awarded to the convicts- appellants vide impugned judgment of the learned trial Court/Sessions Judge, Abbottabad, dated 28.07.2012, are not sustainable under the law. Therefore, on the acceptance of this appeal, the conviction and sentences awarded to the convicts-appellants are set aside and they are acquitted of the charges levelled against them, and they be set at liberty, if not required in any other case.