RAJA SAEED AKRAM KHAN, A.C.J.--- Through the appeals (supra), the common judgment of the Shariat Appellate Bench of the High Court (High Court) dated 10.10.2019, has been called in question, whereby the appeals filed by both the parties have been dismissed. As the titled appeals are outcome of one and the same judgment and the matter , hence, these are being disposed of through this single judgment.
2. The facts necessary for disposal of these appeals are that or a written report of the complainant, Muhammad Asghar , a case in the offences under sections 34, 302, 324, 337-F and 506, A.P.C. read with section 13 of the Arms Act, 1965, was registered against the convict-appellant and the co-accused at Police Station Rawalakot on 08.10.2008. It was reported that he is resident of Green Town Rawalakot, he owned a piece of land in village Trar near the house of Master Azhar . On 08.10.2008, he along with his brothers, Mush taq Khan and Abraiz Khan went to visit the spot at about 2:30 pm, meanwhile, the accused, Atif Anwar , Arshad Anwar and Touseef Anwar , sons of Muhammad Anwar accompanied by 4 other unknown persons arrived at the place of occurrence. Atif Anwar , Touseef Anwar and Arshad Anwar armed with rifles raised lalkara that no one would go alive today . The accused, Atif Anwar fired a shot which landed at the back of Abraiz Khan, who fell down on the spot and succumbed to the injuries. Touseef Anwar , also fired a shot with rifle which hit at the leg of Mushtaq Khan, whereas, the convict- appellant, herein, fired at complainant who survived fortunately . The other unknown persons by boarding the accused in the vehicles, fled away from the scene of occurrence. On hue and cry and noise of firing Muhammad Munir , Muhammad Javed and other inhabitants of vicinity arrived at spot, witnessed the occurrence and carried the injured to CMH Rawalakot. The motive behind the occurrence was the dispute over a piece of land.
3. On the registration of the case, the police apprehended the convict-appellan t, whereas, the other accused absconded themselves and later on proceeded under section 512, Cr.P.C. On the completion of the investigation, the challan' was presented in the District Court of Criminal Jurisdiction Rawalakot on 24.12.2008 and later on the file was made over to the Additional District Court of Criminal Jurisdiction for disposal under law. The trial Court after necessary proceedings vide its judgment dated 04.07.2017, convicted the appellant and awarded him sentence of 10 years' imprisonment unde r sections 302 and 34, A.P.C. and also awarded him the sentence of 5 years' imprisonment under section 13 of the Arms Act, 1965. Feeling aggrieved from the judgment of the trial Court both the parties filed appeals before the High Court. The learned High Court vide impugned judgment dated 10.10.2019, dismissed both the appeals. Now the convict-appellant filed appeal for acquittal, whereas, the complainant filed appeal for enhancement of the sentence.
3. Raja Muhammad Hanif Khan, Advocate , the learned counsel for the convict-appellant argued that the impugned judgment is against law and the facts of the case. He contended that the only allegation levelled against the convict-appellant is that he fired a shot with Kalashnikov at the complainant which could not hit him. He submitted that the appellant is the brother of the main accused and is an Advocate by profession; the main object to enrope the appellant in the case is to restrain the accused party to prosecute the case . The recovery of Kalashnikov allegedly made on the pointation of the convict-appellant is fake and even the recovered weapon and the empties recovered from the place of occurrence were not sent to the Forensic Science Laboratory (FSL) to clarify whether the alleged Kalashnikov was in working condition and the empties recovered from the sport were fired with the same or not. He further contended that in the FIR, it has been reported that a huge number of persons of the locality witnessed the occurrence but none of them has been produced as witness and only the related witnesses have been produced which create doubt in the prosecution story . He submitted that the prosecution failed to prove the case beyond reasonable doubt, therefore, the trial Court was not justified to convict the appellant mere on the ground that he has taken the plea of alibi and failed to prove the same and the learned High Court has also failed to consider this aspect of the case. The learned Advocate added that the statements of the prosecution witnesses
(PWs) are not consistent with the story established by the prosecution. While referring to the statement of a PW, Muhammad Asif, he submitted that the. trial Court during the course of cross-examination has observed that the Kalashnikov is not in working condition at present. In such state of affairs, in absence of the report of FSL, the reliance could not be placed on the recovery . He lastly submitted that the case against the convict-appellant is highly doubtful and it is settled principle of law that a single doubt is sufficient to acquit the accused of the charge.
He referred to and relied upon the cases reported as Haji and 3 others v. The State [1976 PCr.LJ 69], Muhammad Khan and another v. The State [1999 SCMR 1220 ], Din Muhammad and 9 others v. Ahmad and another [2008 YLR 396], Muhammad Shah v. The State [2010 SCMR 1009 ], Syed Amanullah Shah v. The State [2013 YLR 110], Shaman alias Shamoo and 3 others v. The State [2013 PCr.LJ 1829], Raja Zamin Abbas and another v. Sultan Mubashar and another [2014 SCR 1678] Kabir Shah v. The State through Advocate '
General Khyber Pakhtunkhwa and another [2016 YLR 1291 ] and Iftikhar Ahmed and another v. The State and another [2016 PCr .LJ 228] and prayed for acquittal of the convict-appellant.
4. On the other hand, Barrister Hamayun Nawaz Khan and Sardar Abdul Hameed Khan, Advocates, while appearing on behalf of the complainant strongly controverted the arguments advanced by the learned counsel for the convict-appellant. They submitted that the prosecution has proved the case against the convict-appellant beyond reasonable doubt, therefore, there was no occasion to award the lesser punishment. They contended that from the revenue record produced in evidence, it is clear that the accused were aggressors and they attacked the complainant party to get the possession of the land. It is a preplanned occurrence which was committed in a broad daylight and there was no possibility to substitute the real culprits. The convict-appellant was the master mind of the occurrence and he also actively participated in the occurrence. They added that the statements of all the PWs are consistent with the prosecution story and despite lengthy cross-examination the defence failed to shake the confidence of the witnesses. They furthe r added that the convict-appellant while recording his statement under section 342, Cr.P.C. has taken a specific stance that at the time of occurrence he was not present at the spot but he failed to prove this version. Under celebrated principle of law when the accused took the plea of alibi the burden is shifted on him' but the Courts below have not considered this aspect of the case in a legal manner . The whole occurrence took place on the instigation of the convict-appellant and the allegation against him has been proved by producing strong evidence, therefore, by accepting the appeal capital punishment may kindly be awarded to the convict-appellant. They referred to and relied upon the cases reported as Sardar Khan v. The State [PLD 2005 Pesh. 166], Muhammad Ashraf and 2 others v. The State [2008 YLR 1808 ], Shah Nawaz and another v. The State [2008 YLR 2449 ], Muhammad Ilyas and others v. The State [2011 SCMR 460], Ikramullah v. The State [2011 PCr .LJ 1584] and Raj Muhammad v . State and 4 others [2014 YLR 2612 ].
5. Raja Ayaz Ahmed, Assistant Advocate- General adopted the arguments advanced by the learned counsel for the complainant.
6. We have heard the arguments, perused the record with due attention and considered the case law referred to and relied on by the learned counsel for the parties. In the case in hand, the allegation levelled against the convict- appellant is that at the time of occurrence he along with co-accused attacked the complainant party; he was armed with Kalashnikov; he instigated the other accused for the commission of offence and fired shots on the complainant but fortunately he remained safe. The trial Court awarded the sentence of 10 years' imprisonment the convict- appellant under sections 302/34, A.P.C. and 5 years' imprisonment under section 13 of the Arms Act, 1965 and the learned High Court upheld the sentence recorded by the trial Court. As the allega tion of such firing, which did not cause any injury to the persons of the rival party , is attributed to the convict-appe llant; therefore, in our view, the recovery of crime weapon is the only evidence which can play the vital role in the case of the convict appellant to ascertain the true picture. The perusal of the record shows that recovery of crime weapon on the pointation of the convict has been made after a considerable delay from his arrest on the very last day of remand on 22.10.2008. The recovery witness, Nayyer Ashraf, stated in his statement that the barrel of the Kalashnikov produced in the open Court was in the same condition as was at the time of recovery . The relevant portion of his statement is reproduced here which reads as under: - {{URDU TEXT}} The other recovery witness, Asif Hussain stated in his statement that at the time of recovery the Kalashnikov was in working condition. The trial Court has noted in the B statement that at present the rifle is not in working condition.
The relevant note is reproduced as under: - The record also show that the Kalashnikov recovered on the pointation of the convict and the empties recovered from the spot were not even sent to the FSL to verify; whether this weapon was used in the occurrence or not. So, in such state of affairs, it can be said that a strong mitigation in respect of the recovery , which in view of the role attributed to the convict is of vital importance as well as the active participation of the convict, is available in the case.
7. The learned counsel for the complainant stressed that the convict-appellant while recording his statement under section 342, Cr.P.C. has taken the plea of alibi; therefore, the burden of proof was shifted upon him. The record shows that the Courts below have already rejected the plea of alibi; therefore, this argument is not of worth consideration. We may observe here that even if the defence has not led evidence to prove its plea of alibi but at least the already available supra discusse d evidence is sufficient to create mitigation in the case to the extent of the role attributed to the convict-appellant. It is also a celebrated principle of law that the prosecution has to stand on its own evidence and it is duty of the prosecution to prove his case beyond reasonable doubt. In the instant case, such firing was attributed to the convict-appellant which did not cause any injury to the persons of the opponent party; therefore, to prove the active participation of the convict-appellant in the occurrence the report of FSL, in respect of the crime weapon recovered on the pointation of the convict and empties recovered at the spot, was required, but regrettably the prosecution failed to discharge its duty as the same have not been sent to FSL for verification. We agree with the argument of the learned counsel for the complainant that mere relationship of witnesses with the complainant is not sufficient to discredit their testimony if otherwise such witnesses are found to be the witnesses of truth; the learned counsel for the convict-appellant has also not pointed out any major contradictions in the statements of the witnesses, thus, in view of the peculiar facts of the case, we do not entirely brush aside the direct evidence, but at the same time the mitigation discussed hereinabove also cannot be ignored lightly . After scrutinizing the record, we have arrived at the conclusion that although, it is not a case of acquittal, but the evidence collected by the prosecution to prove the active participation of the convict-appellant in the occurrence is also not of such standard on the basis of which the major penalties can be awarded to him. The convict has already served out the major portion of the sentence awarded to him by the trial Court. In presence of the mitigating factor discussed in the preceding paragra phs, there hardly remains any need to discuss the other points involved in the matter as the findings on any of the points, will not change the fate of the case.
Thus, for the forgoing reasons, we partly accept the appeal filed by the convict-ap pellant and while modifying the impugned judgments convert the sentences awarded to the convict-appellant, into the sentences already undergone. He shall be released from the custody forthwith if not required to be detained in connection with any other case. The cross appeal filed for enhancement of the sentences having no substance stands dismissed.