LAL JAN KHATTAK, J.---Through this judgment, we shall also decide Cr.A. No, 783-P of 2016, Cr.R.No,102-P of 2014 and Cr.R.No,6-P of 2017 as all the four matters have emanated from same FIR bearing No,1054 dated 10.08.2012 under sections 302/324/34, P.P.C. of Police Station, Lahor District Swabi albeit from different judgments.
2. Brief facts of the case are that on 10.08.2012, complainant Syed Ali Raza Shah (PW-6) reported to S.I. Saleh Muhammad Khan (PW-10) in Kunda Hospital to the effect that on the day of occurrence, he, his father Syed Akbar Ali Shah (PW-7), his brother Syed Hussain Ali Shah and relative Sufaid Khan (both deceased) were negotiating a matter with accused Saleem etc regarding the landed property given by them to the accused side on sharecropping. Complainant alleged in his FIR that during negotiation, accused Saleem, Wali Muhammad and Zahir Rehman got infuriated and by entering into the baithak fired at them with lethal weapons with which his brother Syed Hussain Ali Shah and relative Sufaid Khan were hit and died on the spot while they escaped unhurt. Motive given in the FIR was stated to be a dispute over landed property given by the complainant's side to the accused on rent.
3. In the first round, appellant Zahir Rehman was arrested and put to face the trial who, after conclusion of the trial, was found guilty of the charge vide judgment dated 11.07.2014 and on conviction was sentenced to imprisonment for life as Tazir (on two counts) with fine of Rs,2,00,000/- payable as compensation to the legal heirs of both the deceased NN ithin the meaning of section 544-A, Cr.P.C. or in default whereof to further suffer 6 months' S.I. Benefit under section 382-B, Cr.P.C. was extended to him.
4. Appellant Zahir Rehman has impugned his conviction through his appeal bearing No, 467-P of 2014 while complainant Syed Ali Raza Shah has filed criminal revision for enhancement of the sentence awarded to the convict.
5. After conviction of accused Zahir Rehman, accused Wali Muhammad and Saleem were arrested, who were then indicted for the crime to which they pleaded not guilty and claimed trial. On conclusion of the trial, both the accused were found guilty of the charge by the learned trial court vide judgment dated 10.12.2016 and on conviction sentenced them to imprisonment for life on two counts under section 302(b), P.P.C. with direction to pay compensation of Rs,5,00,000/- payable to the legal heirs of both the deceased or in default whereof to further suffer 6 months S.I. They were also convicted under section 324/34, P.P.C. and sentenced to 3 years R.I. with compensation of Rs,50,000/- to complainant Syed Ali Raza Shah and PW Syed Ali Akbar Shah. Benefit under section 382-B, Cr.P.C., was given to them.
6. The convicts have impugned their convictions through their joint appeal bearing No,783-P of 2016 while the complainant too has sought enhancement of the sentence. As all the four matters have emanated from same FIR albeit from two different judgments, therefore, as stated earlier, are being decided through this single judgment.
7. Learned counsel for the appellants-convicts in both the appeals contended that the prosecution has miserably failed to prove its case against the appellants through reliable and confidence inspiring evidence, therefore, the convictions, being bad in law, be set aside and the appellants be acquitted.
8. As against the above, learned counsel for the complainant assisted by the learned AAG submitted that the ocular account qua commission of the crime by the convicts, as furnished by the eye-witnesses, is duly corroborated and supported by medical evidence of both the victims and other circumstantial aspects of the case, therefore, the convictions are in accordance with law.
9. We have heard arguments of learned counsel for the parties and with their assistance gone through the case record.
10. Perusal of the record would show that in support of the prosecution's case, complainant of the case, namely, Syed Ali Raza Shah appeared as PW-5 while his father testified as PW-6. Both have reiterated the allegations as contained in the FIR (Ex.PA). According to the evidence furnished by both the eye-witnesses, they and the deceased had been in the tobacco barn of the appellants in order to settle the dispute relating to the landed property given by the formers to the latter on sharecropping when in the meanwhile, as per their version, the appellants got infuriated and started firing at them with which Hussain Ali Shah and Sufaid Khan were hit and died on the spot while they escaped unhurt.
11. Noticeable aspect of the case is that as both the eye-witnesses are closely related to both the deceased, therefore, we would appreciate their evidence with utmost care and caution so as to see whether the evidence furnished by them is nothing but the whole truth. No doubt, evidence given by a related witness cannot be discarded by the mere fact of his being related to a victim but it has been held umpteenth times by the superior courts that if the testimony of a related witness is not supported by circumstantial evidence of the case, then no credence could be attached to it.
12. In the context of the above, if we look at the evidence of both the eye-witnesses, it hardly provides a true account of the occurrence. According to site plan of the case (Ex.PB), both the eye- witnesses have been shown at points Nos,1 and 4 while the deceased are at points Nos, 2 and 3 whereas the accused are at points Nos,5, 6 and 7. Inter se distance between the complainant and appellant Zahir Rehman is 4 paces. Same distance of appellant Zahir Rehman has been shown with eye-witness Syed Akbar Ali Shah. According to the site plan, inter se distance between appellant Wali Muhammad and complainant is 5 paces and 9 paces with the eye-witness.
Likewise, inter se distance between appellant Saleem and complainant is 9 paces while with the eye-witnesses is 11 paces. The detail qua distances between the appellants and the eye-witnesses in the site plan would show that all the three appellants and the eye-witnesses are standing in close proximity with each other and in such like situation, if a group of three fires indiscriminately at the eyewitnesses and that too with lethal weapons, then there would hardly be a chance of missing the target. Ibid aspect of the case has led this court to believe that both the eye-witnesses were not present on the spot when the occurrence had taken place. Had they been present on the spot at the time of firing, they must have received some firearm injuries on their bodies, therefore, for the safe administration of justice, we exclude their evidence from consideration.
13. After discarding the evidence of PWs-5 and 6, there is left no ocular account with the prosecution to prove its case against the appellants but the matter does not end here keeping in view the FIR lodged by appellant Zahir Rehman bearing FIR No,1055 dated 10.08.2012 under sections 324/34, P.P.C. against complainant Syed Ali Raza Shah and others for their effective firing at him (Ex.PW 7/X-1). According to the contents of the ibid FIR, appellant-complainant, Zahir Rehrnan had reported to Muhammad Sareer Khan SI in DHQ Hospital, Swabi to the effect that he and his cousin Liaqat Ali were present in their Tobbaco barn, when in the meanwhile Abu Talib, Ali Raza and Hussain Bacha came there duly armed with lethal weapons and started firing at him with which he was hit on his chest and abdomen. Motive for the firing was given by him a dispute over land.
Above-mentioned case proceeded against Syed Ali Raza Shah etc but they were acquitted vide judgment dated 11.07.2014, whereagainst appellant Zahir Rehman has preferred his appeal bearing No,468-P of 2014, which is also being decided today.
14.In the above case registered by appellant Zahir Rehman, he has suffered the following injuries on his person:--
1. Firearm entry wound lx1 cm on back side chest.
2. Firearm exit wound lx1 on chest left side (front).
3. Firearm entry wound lx1 cm on left axilla with no exit wound.
4. Firearm entry wound lx1 cm on left buttok.
5. Firearm exist wound 3x3 cm on lower abdomen. Abdominal contents seen out of the wound. No charring mark seen. Injured was conscious and oriented, statement recorded. First aid given and referred to LRH, Peshawar for management. Nature of injuries: Dangerous caused with firearm.
15. The nature of injuries sustained by appellant Zahir Rehman would show that same are not self- inflicted. When so, then the question would arise that how both the incidents occurred, who was aggressor and who was aggressed upon. In order to determine the above aspect of the case, we put both the FIRs in juxtaposition to each other so that to get a clear picture of the incidents, wherein, two persons lost their lives and one was critically injured.
16. Record shows that three things are common rather admitted in both the cases, (1) time of occurrence (2) the crime spots and (3) motive for the occurrence. Admittedly, the complainant side of FIR No,1054 had come to the Tobbaco barn of the appellants in order to settle a land dispute and during the negotiation proceedings the parties lost their temperaments and resorted to firing resulting into casualties from both sides but it would not be out of place to mention here that both the parties have suppressed material facts of the incidents. Neither complainant Syed Ali Raza Shah reported the incident as it had happened nor appellant Zahir Rehman disclosed the whole truth. Though the defence version taken in the first case is that the two deceased had died of the firearm injuries caused to them by their own comrades but said version is not correct keeping in view the nature of injuries sustained by both the deceased.
17. From perusal of the material of both the cases, we have drawn a conclusion that there was a sudden fight, wherein, the victims present on the spot resorted to firing at each other leaving casualties from both the sides. However, there is no worth reliable and convincing evidence on the I record, which could show that the occurrence, which took the lives of two, was the job of three persons as alleged and deposed by complainant Syed Ali Raza Shah and his father Syed Akbar Ali Shah, which aspect of the case casts doubt on the participation of appellants Wali Muhammad and Saleem in the crime. On the other hand, presence of appellant Zahir Rehman is established on the spot not because that he has sustained firearm injuries on his person but being complainant of the cross case. However, the question for determination is that who amongst the victims had opened the firing? Whether both the deceased had unleased the firing first or appellant Zahir Rehman, in order to save himself, had resorted to fire at the deceased prior to his receiving injuries.
Record is silent to highlight the above complexed aspect of the case.
18. Objective perusal of the record relating to both the cases has led this court to believe that the appellant Zahir Rehman had acted in the exercise of his right of private defence by resorting to firing at the deceased when both the warring factions all of a sudden took arms in their hands and opened firing. After holding so, the next question would then be whether the appellant-convict had acted within his limitation or had exceeded his right of private defence. Answer to the above question is that as both the deceased had emerged on the Tobacco barn whereafter firing ensued, therefore, there was no time for him to weigh the limit of his right of private defence with any scale.
It is held time and again by the superior courts that right of private defence cannot be weighed in a golden scale and even in absence of bodily injury in a given case, such right may be upheld if there is a reasonable danger or apprehension to the life of a person, which right was rightly exercised by the appellant in the attending circumstances of the case as both the .deceased had been in his Tobacco barn and attacked him with firearms.
19. Though it is not the case of appellant Zahir Rehman that he had fired at the deceased while exercising his right of private defence but it is well settled that in a given case it will be open to court to take into account the plea of private defence, even if the accused has not taken it provided surrounding circumstances of a particular case establish that such plea was available to him.
20.Thorough and careful examination of the entire case record would show that the prosecution has not proved its case against the appellants through worth reliable and confidence inspiring evidence. It is a century old principle of criminal law that in order to bring home guilt to an accused, the prosecution must prove its case beyond any shadow of doubt and in case any slightest doubt occurs in the prosecution's case, then its benefit must be given to the accused. The learned trial court has failed to appreciate the case evidence in its true perspective for which its judgment is not sustainable.
21.For what has been discussed above, we accept both the appeals of the convicts and, on setting aside the impugned judgments, acquit them of the charges levelled against them. They shall be freed forthwith if not required to be detained in any other case.
22. Above are the reasons of our short order of even date, which reads as under:- "For the reasons to be recorded later, this appeal is allowed, conviction and sentence of the appellant recorded by learned Additional Sessions Judge, Lahor (District Swabi) vide impugned judgment dated 11.07.2014 delivered in case FIR No,1054 dated 10.08.2012 under sections 302/324/34, P.P.C. of Police Station Lahor (Swabi) are set aside. The appellant is acquitted of the charges levelled against him and he be set free forthwith, if not required to be detained in any other case". revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.