CHAUDHARY KHALID RASHEED, J. The captioned appeal has been preferred against the judgment recorded by learned District Court of Criminal Jurisdiction Poonch/Rawalakot dated 27.04.2019 whereby, appellant Sajid Akram has been convicted in offences under section 458/34-APC by awarding 14 years simple imprisonment along with fine of Rs.50,000/-. He was also ordered to pay compensation amount of Rs.5,00,000/- to the legal heirs of deceased under section 544(2) Cr.P.C., in case of failure to pay compensation he has to undergo for further six months simple imprisonment.
Facts of the case which culminated into the captioned appeal briefly stated are, complainant Abdul Jalil filed a written application Exh.PA at Police Station Datote on 13.09.2009 qua it was alleged that on 12.09.2009, he along with his brother Muhammad Ghazan reached back to their home after offering Tarawee prayer, at 11:00 pm his niece Mst. Mehwish Nawaz went to bathroom, after a while, Mehwish raised hue and cry whereupon he along with Muhammad Ghazan, Mst.
Naseem Akhtar (wife of complainant), Mst. Manshad Begum (sister in law of complainant) and other children went out and saw that one veiled person caught hold of Mehwish Nawaz from her hairs while armed with Kalashnikov whereas two other veiled persons also loaded with Kalashnikovs was standing nearby, warned to refrain to raise any noise, taken then in a room, beaten the complainant and his brother with the butt of Kalashnikov, snatched two mobile phones.
One veiled person stood there as a watchman while two other persons went to the other rooms for search, they took away Rs.1,00,000/- cash, three set of gold ornaments, 12 bore rifle, identity card and other documents, thereafter the veiled person stood as guard was caught hold by his brother Ghazan and shut the door whereupon two other veiled persons started firing with Kalashnikov from outside the room, resultantly, Mst. Naseem Akhtar and Mst. Manshad Begum sustained serious injuries consequently sister in law of complainant Mst. Manshad Begum succumbed to her injuries.
Veiled person who caught hold was Zohaib son of Noor Muhammad. From two other veiled persons one was identified as Niaz alias Babu. It was contended that the accused committed the occurrence in connivance with Sayyab Abbasi.
On this report FIR No.66/2009 was registered at Police Station Datote in offences under sections 17(3,4) EHA, 337-A(i), F(i), D(i), E(iii), 109, 34, 458 APC and 13/20/65 Arms Ordinance. After investigation the police submitted its report under section 173 Cr.P.C, on 04.01.2010 against accused Zohaib whereas, convict-appellant was shown as absconder. On arrest of convict-appellant he was investigated and challan to his extent was presented before the trial Court on 30.05.2014. The statement of convict-appellant under section 265-D Cr.P.C. was recorded on 07.07.2014, accused pleaded innocence, whereupon the prosecution was required to produce evidence in order to prove the guilt of the accused. Upon completion of prosecution evidence, the statement of convict appellant was recorded under section 342 Cr.P.C. on 18.02.2019 who again claimed innocence, however opted neither to produce evidence in defence nor to record his statement under section 340(2) Cr.P.C, The learned trial Court after hearing pro and contra, convicted the accused appellant in offence under section 458/34-APC by awarded fourteen years simple imprisonment along with fine of Rs.50,000/- vide its impugned judgment dated 27.04.2019, hence, the captioned appeal to assail the conviction recorded by the Court below.
The learned counsel for the convict-appellant vehemently argued that appellant has been convicted under section 458-APC, however the offence under section 458-APC is not attracted because the complainant himself stated in the FIR that they allowed the accused persons to enter into the house, hence the question of lurking which is sine qua non for an offence under section 458-APC does not arise. It was further submitted that main accused Babu has died in police encounter whereas the other accused Zohaib is still absconder. The learned advocates further claimed with vehemence that neither house trespassed by the convict-appellant has proved nor any recovery has been effected from the accused persons. Moreover no medical report of injuries alleged to be inflicted to the complainant or his inmates from the hands of convict-appellant is available on the record. The learned counsel alleged that the convict appellant has been involved in the case merely on the statement of co-accused Zohaib and there is nothing more to involve him in the alleged occurrence. They also stated that the convict-appellant is not nominated in the statements recorded under section 161 Cr.P.C. They pressed into service that complainant during his Court statement made improvement and ascribed role to the convict appellant but the Court below has miserably failed to appreciate the relevant evidence by wrongly convicted the appellant on the basis of a contradictory statements of prosecution witnesses, hence, conviction of the appellant is liable to be brushed aside. They referred following case laws:
1. 2003 PCr.LJ 1778;
2. 1976 SCMR 236;
3. 1985 SCMR 1684;
4. 1993 SCMR 550;
5. 2005 PCr.LJ 22.
The learned AAG supported the impugned judgment on all counts by submitted that the prosecution has proved the case against the convict appellant beyond shadow of reasonable doubt, thus has rightly been convicted by the Court below.
We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.
The prosecution pleaded in FIR that three veiled persons came to the house of complainant at the night of occurrence, one of them caught hold of the niece of the complainant Mehwish Nawaz from her hairs and two others were standing nearby and all of the them were veiled. It is further submitted that when they succeeded to caught hold one of accused and unveiled him, he was Zohaib whereas they identified one other trespasser as Niaz alias Babu. It is also an admitted position that convict-appellant has been involved in the case in view of the statement of co- accused Zohaib who is absconder whereas no one from the complainant or his inmates identified him, though it was sine qua non for the prosecution to conduct the identification parade of the convict appellant but admittedly no identification parade has been conducted. The co-accused Zohaib also nominated some other persons as accused but all of them were discharged under section 169 Cr.P.C. by the police during investigation except the convict-appellant, thus the statement of co-accused by involving convict appellant becomes highly doubtful and was required to be corroborated by other reliable evidence but in the instant case it is apparent from the available record that the statement of co-accused Zohaib to the extent of involvement of convict-appellant has not been corroborated by any other piece of evidence.
As per the contents of FIR, all three accused persons were armed with Kalashnikov but neither any recovery of Kalashnikov has been effected on the instance of convict-appellant nor any other alleged snatched article was recovered on the pointation of the convict-appellant, this reality alone ipso facto shrouded the prosecution version into a mystery to the extent of appellant.
It is pertinent to mark that no prosecution witness has nominated convict-appellant in their statements recorded under section 161 Cr.P.C. whereas the complainant has made improvement in his Court statement by deposing that accused Babu and Sajid went to the other rooms of the house for search whereas in the FIR, no specific role was attributed to the convict appellant. The complainant also deposed in his Court statement that he knew convict-appellant before the occurrence thus, he can nominate the convict appellant in the FIR if was involved.
After going through the entire prosecution evidence and record of the case, we are of the considered view that there is nothing on record to connect the appellant to the alleged occurrence because the guilt of the appellant has not been proved to the hilt. The statement of co accused Zohaib on the basis of which the convict-appellant was taken to custody and investigated is not corroborated by any other reliable piece of evidence rather flagrantly doubtful for the reason that during investigation, he also involved some other persons in the occurrence who were discharged by the police during investigation under section 169 Cr.P.C.
As per medical report, Mst. Manshad Begum expired due to a firearm injury, however as stated earlier no firearm weapon has been recovered on the pointation of convict-appellant.
So far as the prime argument advanced by the learned counsel for the convict-appellant that the offence under section 458-APC is not attracted is concerned, it may be stated that in the site plan the location of bathroom where the accused caught hold of the niece of complainant Mehwish Nawaz has not been mentioned rather Mehwish Nawaz is shown at place No.3 along with Abdul Jail Khan, Muhammad Ghazan Khan, Mst. Naseem Akhtar, hence even it cannot be opined that the said bathroom was located within the premises of house qua the convict-appellant forcibly entered into the house. Lurking generally means to wait or move in a secret way, often with negative connotations like waiting to attack or do something wrong. Though the location of bathroom has not been illuminated in We site plan but as per prosecution story She accused persons committed lurking house trespassed because when Mehwish Nawaz went to bathroom they were already waiting to attack and do something wrong like robbery and thereafter forcibly on gunpoint entered into the house of the complainant and committed the occurrence, hence in the circumstances of the case the alleged offence under section 458-APC is apparently attracted, however it has not been substantiated from any angle or stretch of any evidence that the convict-appellant was involved in the case and committed the offence of lurking house trespass into the premises of the complainant. Since the prosecution story is a bunch of uncertainty to the extent of convict- appellant as nothing has been found in the record to connect the accused with alleged occurrence. During the course of arguments, the learned AAG was also confronted to refer the relevant evidence/record which may escort the appellant to the alleged occurrence but he remained unsuccessful. The Court below has convicted the accused on the basis of conjectures and surmises while it is a. well settled precept of law that for conviction of an accused, the prosecution has to substantiate its stance beyond shadow of a reasonable doubt in order to bring the guilt to the hilt and if a slightest doubt is observable in the prosecution version, the benefit of the same has to be extended in favour of accused as a matter of right and not grace which must be resolved into his acquittal but the Court below has passed the impugned judgment in deviation and violation of the bedrock norms of criminal justice. The case laws referred to and relied upon by the learned counsel on behalf of appellant are of divergent facts, hence not applicable.
It is also pertinent to mark that complainant Abdul Jalil has got recorded his statement that he has compromised with the convict-appellant and has no objection if the convict-appellant is acquitted of the charge but his compromise is of no legal value firstly for the reason that offence under section 458-APC with which the accused has been convicted is non-compoundable, secondly the complainant is not among the legal heirs of deceased, thus has got no right to forgive the convict-appellant. Furthermore, Mr. Imtiaz Hussain, brother of deceased and Muhammad Ghazan Khan, husband of the deceased (legal heirs) got recorded their statements that they have not compromised the convict-appellant, thus the compromise on behalf of complainant has no sanctity in the eye of law.
The nub and substance of the above discussion is the appeal stands accepted consequently the convict- appellant is hereby acquitted from all the charges and shall be released forthwith if not required in any other case or offence.