ABDUL JABBAR and another vs The STATE

MANZOOR AHMAD MALIK, J.---Being dissatisfied with the outcome of investigation of case FIR No, 138 dated 18.11.2003, offence under sections 302/34, 109, P.P.C., registered at Police Station Shah Nikdar, District, Sargodha, the complainant Safdar Ali instituted a private complaint under the same penal provisions of law as were in the FIR. The learned Additional Sessions Judge, Sargodha consolidated the State case and the private complaint instituted by Safdar Ali, complainant (as is reflected from Para 2 of the judgment of the learned trial Court) and indicted appellants Abdul Jabbar and Akhtar Abbas along with their co-accused Ata Muhammad, Ghulam Shameer and Salehoon under sections 302/34 and 109, P.P.C. to face trial. On conclusion of trial, the learned trial Court, vide its judgment dated 31.08.2004, convicted the appellants under section 302(b)/34, P.P.C. and sentenced both of them to death for committing the murder of Ijaz Hussain. They were also directed to pay compensation of Rs,50,000/- each to the legal heirs of deceased under section 544-A, Code of Criminal Procedure, in default whereof to undergo SI for six months each. Through the same judgment, the learned trial Court while extending the benefit of doubt acquitted co- accused Salehoon, Shameer and Ata Muhammad. Being aggrieved of their conviction/sentence, the appellants filed a criminal appeal before the learned Lahore High Court, Lahore, whereas a murder reference was sent by the learned trial Court for confirmation of sentence of death of appellants or otherwise. Safdar Ali complainant also filed Crl. Appeal No, 509 of 2005 against the acquittal of Ata Muhammad, Salehon and Ghulam Shameer. All these matters were heard together and through the impugned judgment, the learned High Court dismissed the criminal appeal filed by the appellants with the modification that sentence of death of appellants was converted into imprisonment for life. The murder reference was accordingly answered in the negative. The criminal appeal filed by the complainant against the acquittal of afore-mentioned co-accused was also dismissed. Thereafter, the appellants Abdul Jabbar and Akhtar Abbas filed a criminal petition and a jail petition respectively, wherein leave to appeal was granted by this Court on 21.05.2012 in the following terms:- "It has inter alia been contended by the learned counsel for the petitioner in Criminal Petition No, 396-L of 2010 that the High Court had itself observed that the FIR in this case had been lodged with a noticeable delay for which there was no justification; the statement made by the deceased under section 161, Cr.P.C. before his death was sharply in contrast with the FIR lodged by the complainant; the High Court had itself concluded that the produced eye-witnesses were not present at the place of occurrence; the High Court had itself observed in the impugned judgment that the above mentioned factors created an "irreparable dent in the prosecution case"; the recoveries effected from the present petitioners had been discarded by the High Court; and while throwing out the entire evidence of the prosecution the High Court had gone on to reduce the petitioners' sentences rather than acquitting them.

2. The contentions noted above need consideration. Both the above mentioned petitions are, therefore, allowed and leave to appeal is granted therein after condoning the delay in filing of Jail Petition No, 147 of 2010."

2. The prosecution case as divulged from the contents of FIR as well as private complaint is more or less the same. It is alleged by the complainant that on 18.11.2003 at about 4.30 p.m., he along with Ijaz Hussain Shah, Sajjad Hussain, Imtiaz Hussain, Alam Sher were cutting the peddy crop, when appellants Akhtar Abbas armed with a revolver, Atta Muhammad Fauji armed with rifle and Abdul Jabbar (not named in the FIR) armed with pistol .30 bore came there. Lalkara was raised by appellant Akhtar Abbas who then made two fire shots with his revolver which hit at the knee of Ijaz Hussain Shah (deceased). Abdul Jabbar (unknown accused in the FIR) made three pistol shots which hit on the foot and knee of Ijaz Hussain Shah (deceased). Atta Muhammad co-accused kept on raising Lalkara Ijaz Hussain Shah later on succumbed to the injuries in the hospital.

3. Akhtar Abbas, appellant is not represented here. Therefore, in the larger interest of justice, we have heard learned counsel for the appellant (in Cr 1. Appeal No, 107-L of 2012), learned Additional Prosecutor General and learned counsel for the complainant (in both appeals) at length and have perused the available record with their assistance.

4. The occurrence in this case, as per prosecution case, took place on 18.11.2003 at 4.30 p.m., the matter was reported to police at 06.35 p.m., whereas formal FIR was registered on the same evening at 08.05 p.m. The distance between the police station and the place of occurrence is 15 kilometers. Though the complainant has tried to explain in the FIR, in the private complaint (Ex.PE) and before the learned trial Court that after the occurrence, he (complainant) along with other PWs took his injured son Ijaz Hussain to Sillanwali Hospital for medical aid and that the police, on report of incident, reached at the hospital and recorded his statement, but the statement of deceased Ijaz Hussain Shah (Ex.CW1/C) recorded by the police before his death negates the claim of the complainant regarding his presence at the spot at the relevant time inasmuch as Ijaz Hussain 'Shah (deceased) stated that after the occurrence, nobody was present beside him at the spot except his brother Sajjad; that after the occurrence, the accused persons ran away from the place of occurrence; that he (deceased) sent his brother to his home; that the latter informed his uncle Falak, who then took the deceased to the hospital. It has been observed by us that the learned appellate court, while reappraising the evidence available on record, concluded in Para 12 of the impugned judgment qua delay in lodging the FIR as under:- "12. Admittedly the FIR in this case was lodged after delay of 4 hours for which no explanation has been furnished by the prosecution. Although the inter se distance between the place of occurrence and the police station is 15 kilometers, but according to the record the statement of the complainant (PW5) was recorded in Civil Hospital Salanwali at 6:30 p.m. If this is the situation, then the prosecution has failed to render any legal and just explanation for the delay in lodging of FIR which aspect of the case is resolved in favour of the defence." (Emphasis supplied)

5. The prosecution, in order to prove its case against the appellants relied on the ocular account furnished by Alamsher (PW3), Sajjad Ahmed (PW4) and complainant Safdar (PW5), who claimed to be present at the spot at the relevant time. However, if the statements of these eyewitnesses are tested against the statement made by Ijaz Hussain Shah (deceased) under section 161, Code of Criminal Procedure before his death (Ex.CW1/C), it becomes crystal clear that neither the complainant Safdar (PW5) nor Alamsher (PW3) were present at the place of occurrence at the relevant time. The, learned appellate court, while reappraising the evidence available on record, made the following observations qua the presence of eye-witnesses at the place of occurrence at the relevant time:- "...........Although the complainant and prosecution witnesses had tried to furnish occurrence with exactitude to the extent that their statements are coincide each other on the salient features of the prosecution case, but at the same time, the statement of injured PW was recorded on the following day i,e, on 19.11.2003. The story narrated by the injured PW who subsequently succumbed to the injuries is contrary to the version advanced by the complainant. The most alarming aspect of the case is negation of presence of prosecution witnesses at the relevant time. The complainant categorically mentioned the names of Allah Yar Macchi and Abdul Rashid Mangla, who were working at the distance of 1 kanal attracted when the injured raised hue and cry, therefore, if these two versions of the prosecution were advanced one by the complainant, while the other by the injured PW himself then it is established that the prosecution witnesses were not present at the place of occurrence. Both the witnesses namely Allah Yar Machhi and Abdul Rashid Mangla, who were claimed to be present at the place of occurrence by the injured PW were not cited by the complainant nor they appeared before the 1.0. during the course of investigation. All these factors qua the prosecution version create irreparable dent in the prosecution case...."

(Emphasis supplied).

6. It is the case of the prosecution that one accused had muffled his face during the occurrence and his name was not mentioned by the complainant in the FIR. Abdul Jabbar was first time introduced by the complainant Safdar in his supplementary statement recorded by police on 18.11.2003, wherein he stated that he got information that the accused who had muffled his face was Abdul Jabbar. Alam Sher (PW3) in his statement recorded by police on 18.11.2003 also named Abdul Jabbar and assigned specific role to him. Interestingly the statement of Ijaz Hussain Shah (deceased) before his death was recorded on 19.11.2003, wherein he did not name Abdul Jabbar as the accused who had muffled his face and was accompanying Akhtar Abbas. Dealing with this aspect of the matter, the learned High Court in the impugned judgment observed as under:- "....As far as the identification of Abdul Jabbar appellant is concerned, undoubtedly the injured PW has not named him while making statement on 19.11.2003, but the prosecution witnesses while making statements under section 161, Cr. P. C. introduced him with full particulars. Similarly, during the course of trial, all the three prosecution witnesses have categorically identified him.

7. As per eye-witnesses, during the occurrence, appellant Akhter Abbas fired twice, which fires hit Ijaz Hussain Shah (deceased) on his right knee, whereas Abdul Jabbar fired thrice, which fires hit deceased Ijaz Hussain Shah on his left foot and left knee. Conversely, Ijaz Hussain Shah (deceased) in his statement recorded by the police on 19.11.2003 stated that Akhtar made a fire with his revolver, which hit him on his right elbow; that Akhtar and the accused with muffled face made fires repeatedly and the other fire hit deceased on his left foot. It is strange to note that the narration of facts by the eye-witnesses and the deceased himself is not in line with the injuries observed by Dr. Asif Masood (PW8) on the person of deceased Ijaz Hussain Shah at the time of his medical examination in injured condition. The doctor observed four entry wounds: one on the right kneecap; second on the right knee just in the centre of kneecap; third on outer upper side of left foot and fourth on the inner side of lower part of left thigh. The doctor also observed six exit wounds: first on right side of right knee; second on inner side of right knee; third on the sole of left foot; fourth going deep on front of upper part of left tibia below the left kneecap; fifth (three wounds of exit measuring 1 cm x 1/2 cm) on outer and upper part of left tibia just below the kneecap; and sixth on lower part of outer side of left thigh. Considering this aspect of the matter, the learned appellate court reached the conclusion that the ocular account was belied by the medical evidence.

Relevant portion of the observation of the learned appellate court in this context is as under:- "...........The injuries ascribed to the appellants are on non vital part of the body. They are four in numbers showing the entry wounds while six injuries on the person of the body are declared exit wounds by the Doctor, but only 3 empties of pistol .30 bore were recovered from the place of occurrence, while no empty of .32 bore revolver was found from the place of occurrence. In this way the ocular account is belied by the medical evidence........." (Emphasis supplied)

8. So far as the recovery of pistol and revolver at the instance of appellants and three empties secured by the investigating agency from the spot are concerned, the learned Appellate Court concluded in Para 13 of the impugned judgment as under:- "Apart from stated above only three empties were recovered from the place of occurrence which were taken into possession on 18.11.2003. The appellant Abdul Jabbar as well as Akhtar Abbas were arrested on 24.11.2003 and the recovery of their respective weapons i,e, pistol .30 bore and revolver .32 bore were affected on the same day, but due to inefficiency of local police, the empties which were recovered on 18.11.2003 were sent to the Forensic Science Laboratory on 03.12.2003. Till then recovery from the appellants was already effected, therefore, such a lapse at the part of the investigating officer had made the recovery from the appellants ineffective and of no consequence. The benefit of the same is surely to be extended in favour of the appellants...."

(Emphasis supplied)

9. The prosecution in this case alleged a specific motive which, as per prosecution, became cause of the occurrence. It has been alleged that a few days prior to occurrence, exchange of abuses took place between Akhtar Abbas appellant and deceased Ijaz Hussain Shah. The deceased Ijaz Hussain Shah in his statement recorded by police before his death, however, gave a different version of motive as against the one set out by the prosecution in the FIR. The deceased (before his death, in his statement Ex.CW1/C) stated that once Baloch Hakim Khan and Akhtar Abbas had a scuffle and he (deceased) separated them and that apart from this, he had no enmity with the appellants. In these circumstances, the motive set out by the prosecution remained far from being proved. Qua the motive behind the occurrence, the learned appellate court observed as under:- "..........As discussed above, we are of the view that though the prosecution has established its case beyond any reasonable doubt, but the dents available on the record coupled with the unproved, almost non existence of motive brings the case of the appellants within the ambit of mitigation..........." (Emphasis supplied)

10.It has further been observed by us that the learned appellate court, during the scrutiny of evidence available on record, apart from the observations/conclusions, alluded to in the preceding paragraphs, reached a definite conclusion to the following effect:- "......The ocular account, which is coming from the source, which is interested and related the sentence of death would be considered by us to be harsh. It is settled principle of law that whenever two versions are spelling out from the prosecution case, the courts are always hesitant to award maximum punishment. This aspect is squarely available in this case, therefore, ' it creates a reasonable dent in the prosecution version...." (Emphasis supplied)

11.Having concluded in such a manner, the learned High Court still went on to maintain the conviction of the appellants under section 302(b)/34, P.P.C. while converting their sentence of death into imprisonment for life. We are afraid this approach of the learned High Court is a complete departure from the principles settled for administration of justice in criminal cases. It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused. At the cost of reiteration, it has been observed by us that, in a case, where the learned appellate court, after reappraisal of entire evidence available on record, has reached the conclusion that there is unexplained delay in lodging the FIR; the presence of eye-witnesses is not established; there are irreparable dents in the case of the prosecution; the recovery is ineffective and is of no consequence; the ocular account is belied by the medical evidence; the motive behind the occurrence is far from being proved and almost non-existent, the said Court fell in gross error in maintaining the conviction of the appellants particularly on a capital charge. In these circumstances and after an independent evaluation of evidence available on record, we have no manner of doubt in our minds that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt.

12. For what has been discussed above, both these appeals are allowed. The impugned judgments of the learned Courts below to the extent of appellants Akhtar Abbas and Abdul Jabbar are set aside. Appellants Akhtar Abbas and Abdul Jabbar are acquitted of the charge(s) framed against them. Appellant Abdul Jabbar is present in Court with his learned counsel after suspension of his sentence from the learned High Court. His sureties are ordered to be discharged from the liability of bail bonds. Learned counsel for the appellant Abdul Jabbar, under instructions from appellant Abdul Jabbar, stated that the other appellant Akhtar Abbas was also released on bail by the learned High Court after suspension of his sentence. If this is so, his sureties are also ordered to be discharged from the liability of bail bonds. However, if Akhtar Abbas appellant is still in jail (in this case), he shall be released forthwith, if not required to be detained in any other criminal case.