CHAUDHARY KHALID RASHEED, J. The supra titled appeals and reference have been directed against the judgment passed by the learned District Court of Criminal, Jurisdiction, Rawalakot dated 14.01.2019, qua accused Bilal Javaid S/O Muhammad Javaid has been awarded death sentence as Qisas in offence under section 302-APC, 1 month imprisonment under section 341-APC, three years imprisonment along with fine of Rs.30,000/- under section 15(2) of the Arms Act, 1965 and was burdened to pay Rs.3,00,000/- as compensation to the legal heirs of deceased, whereas accused Irfan Ahmed has been acquitted of the charges by extending him the benefit of doubt.
Facts which culminated into filing of the captioned appeals and reference briefly stated are, complainant Faisal Hussain filed a written application Exh.PA at Police Station Rawalakot on 27.06.2015, wherein it was reported that on 27.06.2015, he along with Fahad (brother), Nasir and Danish were going to Hornamera via Hi-ace No.0307/PE driven by Sarfaraz, when at 5:27 p.m. the Hi-ace reached in middle of Raant and Hornamera, accused Bilal, Zulfiqar and Wan had blocked the road through stones, as soon as the van stopped, complainant, Fahad, Nasir and Danish get off the van, accused, Bilal Zulfiqar and Irfan started abusing. In the meanwhile, accused Bilal Javaid fired with 30 bore pistol by targeting Fahad which landed at the left side of his chest who dropped.
Accused Sohail Arif while standing at some distance fired with 30 bore pistol by targeting Nasir which hit him at his right leg who also collapsed. Accused Irfan started firing with Kalashnikov.
Injured Fahad succumbed to his injury consequently expired on the way to CMH Rawalakot. The motive behind the occurrence illuminated that in the morning time some altercation took place amongst Sarfaraz, Sadiq and Kamran on the timing of vans. The occurrence was stated to be witnessed by Nasir Nazir, Danish, Sarfaraz, Ali, Sohail Younus and Muhammad Nazir.
On this report an FIR No.220/2015 was registered at Police Station Rawalakot in offences under sections 302, 341, 324 and 34-APC on 27.06.2015. During investigation section 15(2-a) A.O. was inserted. Accused Zulfiqar was discharged under section 169 Cr.P.C., accused Sohail Arif stood absconded who was proceeded under section 512 Cr.P.C. and the other accused persons were sent to face the trial vide report under section 173 Cr.P.C. dated 30.09.2015. Charge was framed against accused Bilal Javaid and Irfan Ahmed under section 265-D Cr.P.C. on 29.12.2015, accused persons claimed innocence and refuted the allegations, whereupon the prosecution was directed to lead evidence in order to prove their guilt. Upon completion of prosecution evidence, the statements of accused persons under section 342 Cr.P.C. were recorded on 15.12.2018, they refuted the prosecution evidence, claimed innocence, however opted neither to produce evidence in defence nor to record their statements on oath under section 340(2) Cr.P.C. At the conclusion of trial, the learned Court below convicted the accused person by awarded them the sentences as mentioned in the preceding, paragraph, hence the captioned appeal.
The learned counsel for the complainant vehemently argued that prosecution has proved its case by producing eye-witnesses of the occurrence who fully supported the prosecution version but the Court below failed to appreciate the relevant ticklish evidence in its true perspective rather acquitted the accused Irfan Ahmed on the basis of minor discrepancies. The learned advocate further claimed that as per prosecution version Irfan Ahmed premeditated the whole episode and was master mind of incident which resulted into the death of Fahad and injuries to Nasir, hence was liable to be convicted under section 302/34-APC. The learned advocate also contended with vehemence that the instant case is a case of direct evidence, hence the value of incriminating material is secondary in nature, thus the Court below has wrongly acquitted the accused Irfan Ahmed by relying upon such evidence. The learned advocate also stated that the medical evidence further strengthened the prosecution version, hence the accused Irfan Ahmed is liable to be convicted under section 302-APC. He defended the impugned judgment to the extent of conviction of the accused Bilal Javaid. The learned advocate placed reliance on the following case laws:
1. 2024 PCr.LJ 1383;
2. 2014 SCR 822;
3. 2023 SCR 115;
4. 2009 SCR 72;
5. 2009 SCR 71;
6. 2020 SCR 520
7. 2014 SCR 893;
8. 2017 PCr.LJ 731;
9. 2017 SCR 1050;
10. 2012 PCr.LJ 452;
11. 2010 PCr.LJ SC (AJ&K) 1505.
12. PLD 2007 SC 249.
The learned counsel for the convict-appellant Bilal Javaid and acquitted respondent Irfan Ahmed vehemently argued that alleged eye-witness of the occurrence Sohail Younus negated the prosecution version and deposed during cross-examination that Irfan Ahmed did not perform any role in the occurrence, thus the Court below rightly acquitted the accused Irfan Ahmed. He further submitted that as all the eye-witnesses have not supported the prosecution version pleaded in the FIR, so the award of sentence of Qisas to convict Bilal Javaid is also not justified.
The learned AAG adopted the arguments advanced by the learned counsel for the complainant.
We have heard the learned Counsel for the parties, gone through the record of the case with utmost care and caution.
So far as the conviction- of convict Bilal Javaid is concerned, as per contents of FIR, the occurrence was witnessed by complainant, Nasir Nazir, Danish, Sarfaraz, Ali, Sohail Younus and Muhammad Nazir. According to FIR, accused Bilal Javaid fired with 30 bore pistol by targeting Fahad which landed at the left side of his chest who succumbed to his injury and expired on his way to CMH Rawalakot.
P.W. Muhammad Nazir got recorded his statement on 27.02.2016 and deposed that accused Bilal fired at Fahad.
Sohail Younus also appeared in the witness box got recorded his statement on 30.03.2016, wherein he deposed that he did not witness the injured persons by receiving firearm injuries however stating that he saw pistol in the hands of Bilal.
Kashif son of Noor Muhammad also appeared as prosecution witness who deposed that occurrence took place in his presence and accused Bilal fired at Fahad.
Nasir .Nazir, the prosecution witness got recorded' his statement on 14.06.2017 and deposed that accused Bilal Javaid fired at Fahad with 30 bore pistol, however this witness denied his statement recorded by the police under section 161 Cr.P.C.
The other alleged eye-witness of the occurrence Sarfaraz Khan also recorded his court statement on 20.04.2018 and deposed that accused Bilal fired at deceased Fahad.
The complainant Faisal Hussain also got recorded his statement and stated that accused Bilal Javed fired with 30 bore pistol by targeting Fahad, which landed at left side of his chest which resulted into his death on his way to CMH, Rawalakot, hence the prosecution has established its case that deceased Fahad died due to firearm injury caused by accused Bilal Javaid.
The place, time, mode of occurrence, presence of convict Bilal Javaid and deceased Fahad at the place of occurrence, death of deceased with firearm injury remained undisputed and defence despite lengthy cross- examination failed to extricate anything harmful to the prosecution version regarding place, time, manner of occurrence and the presence of convict appellant. The prosecution witnesses to the extent of role attributed to convict Bilal Javed remained stable during lengthy cross-examination.
The recovery of pistol/weapon of offence on the pointation of accused Bilal is also proved and as per report of PFSA, the pistol recovered on the pointation of accused Bilal was found to be on mechanical operating condition, functioning properly and the empty recovered from the place of occurrence was identified as having been fired from the same pistol.
The medical evidence also corroborated the prosecution version that deceased Fahad expired due to firearm injury, hence the Court below rightly convicted the accused Bilal Javaid. But there are sufficient mitigating circumstances which warrant lesser punishment to the convict Bilal Javaid because eye-witness of the occurrence Sohail Younus, an independent witness, though not denied that deceased Fahad received injury due to fire of accused Bilal Javaid but deposed that he did not see accused Bilal Javaid firing at Fahad. It is bedrock precept of criminal justice that when the eye-witnesses took two different versions, the one favourable to the accused has to be followed.
The statements of other prosecution witnesses, as discussed above, are also not of high prestige that the same can be made basis for award of extreme penalty of Qisas. Furthermore, the bullet recovered from the body of deceased Fahad was not sent for chemical examination. The witnesses produced by the prosecution are close relatives of complainant and only independent witness Sohail Younus has not fully supported the prosecution version thus the accused was liable to be awarded lesser punishment.
As far as the case of Irfan Ahmed is concerned, as per contents of FIR, he did indiscriminate firing with Kalashnikov however during trial the prosecution witnesses made improvements in their statements to his extent and deposed that lib fired with 30 bore pistol. Neither Kalashnikov nor empties of Kalashnikov were recovered from the place of occurrence and one of the prosecution witnesses Sohail Younus deposed in his Court statement that Irfan Ahmed did not perform any role in the occurrence, hence the case of the prosecution to the extent of accused Irfan Ahmed is shrouded in mystery. The premeditation on behalf of Irfan Ahmed has also not been proved. An accused cannot be convicted merely on the basis of his presence at the place of occurrence, particularly when a specific role has been attributed to him but not substantiated. The prosecution witness Nasir Nazir deposed in his court statement that accused Irfan Ahmed and deceased Fahad were together in Rawalakot Bazaar on the day of occurrence and there was no enmity between them, hence the acquittal of accused Irfan Ahmed by the Court below is deserves to be sustained sine any blemish. Moreso, it is also a well settled precept of law that for recalling an acquittal order passed by court of competent jurisdiction by giving solid reasons some concrete and extraordinary grounds or circumstances are always expected in the way that the impugned judgment is perverse, arbitrary, fanciful or based on sine any cogent evidence. No such eventuality has been found in the instant case rather the prosecution witnesses have improved their version during Court statements to the extent of accused Irfan Ahmed.
The crux and epitome of the above debate is, the appeal filed by complainant Faisal Hussain for conviction of accused Irfan Ahmed is hereby dropped for having no essence whereas the judgment of the Court below to the extent of conviction of Bilal Javaid is hereby modified by awarding him life imprisonment under section 302(b)-APC for the murder of deceased Fahad while the rest of sentences passed by the Court below are hereby sustained. The reference sent by the trial Court is hereby trashed.