1. ' EJAZ AFZAL KHAN, J.--- The petitioner has impugned the orders dated 6-10-2001 and 5-11-2001 passed by the learned Sessions Judge, Lakki in a case registered against him under sections 302/324/ 148/149, P.P.C. Vide F.I.R. No,204, dated 28-3-2001 in Police Station. Pezu, Tehsil and District Lakki Marwat by filing this petition under section 56L-A, Cr.P.C.
2. The facts forming the background of this case are that the petitioner obtained transitory pre- arrest bail from the Court of learned Additional Sessions Judge/Judge Special Court, Peshawar vide order dated 25-9-2001 wherein he was directed to appear before the learned Judge Special Court, Bannu on 29-9-2001. The petitioner on the date fixed somehow or the other did not appear before the said Court and instead proceeded to obtain transitory. Pre-arrest bail from the Judge, Special Court, Bannu, who vide order dated 29-9-2001 granted it and directed the petitioner to appear before the Court of learned Sessions Judge, Lakki Marwat on 6-10-2001. The petitioner again instead of doing the needful moved this Court through Criminal Miscellaneous No,188 of 2001 for the transitory pre-arrest bail on 6-10-2001 which was accordingly granted vide order dated 18-10-2001.
2. On 6-10-2001 when the petitioner failed to make appearance before the learned Sessions Judge, Lakki in accordance with the order of learned Sessions Judge, Bannu, the former proceeded to forfeit the bond and issued notice to the accused as well as his sureties vide order dated 6-10-2001.
3. Similarly, the learned Sessions Judge while taking notice of the failure of the petitioner to appear in his Court on 29-9-2001 in compliance with the order dated 25-9-2001 of the learned Additional Sessions Judge-I/Judge Special Court Peshawar proceeded to forfeit the bond and initiated proceedings against the petitioner and his sureties under section 514 Cr.P.C. Vide order dated 5-11- 2001.
3. The learned counsel for the petitioner contended that once the petitioner appeared in the Court of law and submitted another bond, the bond earlier submitted stood automatically discharged, as such no proceeding under section 514, Cr.P.C. Could be initiated against him and his sureties. He next contended that though the petitioner was directed by the learned Additional Sessions Judge Peshawar to appear in the Court of learned Sessions Judge Lakki Marwat on 29-9-2001, he could not appear in the Court for the reason that he apprehended that his application for pre-arrest bail shall be rejected as the learned Judge has already rejected a similar application of his co- accused in limine without summoning the record vide his order dated 21-9-2001.
4. In this background, learned counsel for the petitioner elaborated that the petitioner moved the Court of learned Sessions Judge Bannu and obtained an order up to 6-10-2001 and for this reason he again could not appear in the Court of learned Sessions Judge Lakki Marwat and, as such, deemed it safe to move this Court for obtaining the relief which was ultimately granted on 18-10- 2001. The learned counsel by concluding his arguments contended that the petitioner neither absconded nor defied the process of the Court, in fact he according to the exigencies and grave- ground realities approached one Court or the other to get relief which is permitted and not prohibited by any law, hence the proceedings initiated by the learned Sessions Judge Lakki Marwat are misconceived if not mala fide.
5. As against this, the learned Deputy Advocate-General while referring to section 514, Cr.P.C.
4. Contended that the impugned orders are perfectly in accordance with the law and spirit of section 514, Cr.P.C. And that no such order has been passed by the learned Sessions Judge as could result in the abuse of the process of the Court.
6. We have heard the learned counsel for the parties, perused the record and carefully considered their submissions in the light of the relevant law.
7. It is pertinent to note that nowhEre the petitioner tried to abscond or misuse the process of the Court. It is also palpable from the record that on the expiry of period of one order passed by one Court, the petitioner obtained another from another Court of competent jurisdiction, therefore. At no point of time he or his sureties violated the terms of the bond.
8. It is strange and even surprising to note that the learned Sessions Judge Lakki Marwat declined to grant the relief of pre-arrest bail to the accused/petitioner who approached it with outstretched hands for the purpose, without seeing the record and without giving him an opportunity to vindicate his position and justify his claim for the relief sought. This conduct of the learned Sessions Judge Lakki Marwat, we are constrained to observe, cannot be in harmony with the dignity and decorum of the Courts of law which sanctuaries are meant to protect the rights and liberties of the people and not to curb and curtail them by resorting to a process unbecoming of them.
9. For the foregoing reasons, we do not think that it is a case where any of the bail bonds was legally required to be forfeited and proceedings under section 514, Cr.P.C. Could be initiated against the petitioner and his sureties. Therefore, this petition is allowed and the impugned proceedings so initiated against the petitioner and his sureties are hereby quashed.
5. Petition allowed 2003 P Cr. L J 1205 [Quetta] ejore Amanuillah Khan Yasinzai and Ahmed Khan Lashari, JJ Haji NADIR KHAN and 2 others--- Appellants versus THE STATE---Respondent Criminal Appeal No,38 and Criminal Revision No,20 of 2001, decided on 12th March.
6. 2003.
7. Penal Code (XLV of 1860)--- ----S. 302(b)/34---Appreciation of evidence---Recovery of pistol and an empty from the place of incident could not be used as corroborative piece of evidence as both the said articles were not sent to Ballistic Expert for report, besides the attesting witness had also not supported said recovery---Complainant had not witnessed the incident and he did not disclose as to who informed him about the incident---Persons who had brought the dead body to house of complainant and the only witness who was shown an eye-witness, had not been examined--- Prosecution witnesses were introduced on fourth or fifth day of incident and their statements under S.161, Cr.P.C. Were recorded on the sixth day of the incident---Said prosecution witnesses whose conduct otherwise was improbable and unnatural, could not be relied upon especially when their presence at the place of incident was doubtful--- Prosecution witnesses had not given any account of incident in the manner, it took place and they had deposed generally that deceased was attacked by accused persons and contradictions existed in statements of said witnesses---Trial Court had erroneously relied upon statements of prosecution witnesses holding that their statements had received corroboration from medical evidence and recovery---Prosecution having failed to bring home charge to accused, they were acquitted giving benefit of doubt. [pp. 1209, 1210, 1211, 1212] A, B, C, D, E, F, G, H & I Muhammad Khan v.
8. Moula Bakhsh and another 1998 SCM R 570 ref. M. Aslam Chishti and Muhammad Zafar for Appellants.
9. Malik Sultan Mehmood, A.A.-G. For the State.
10. Date of hearing: 3rd March, 2003.
11. ' AMANULLAH KHAN YASINZAI, J.--- Appellants Haji Nadir Khan, Sher Khan, Fateh Khan sons of Bahadur Khan and Muhammad Siddique alongwith acquitted accused Muhammad Karim and Muhammad Naeem sons of Haji Nadir Khan, were challaned before the learned Sessions Judge, Loralai, under sections 302/34, P.P.C. For causing murder of deceased Paio Gul on 19-6-2000. On conclusion of trial, the learned Sessions Judge, convicted appellants vide impugned judgment dated 22-2-2001, under section 302(b), P.P.C. And sentenced them to suffer R.I. For life imprisonment and to pay fine of Rs,20,000 each and in default to further suffer R.I. For two years, whereas accused Muhammad Karim and Muhammad Naeem were acquitted of the charge.
12. ' Appellants have filed instant appeal against their conviction, whereas petitioner Mst. Aram Bibi, mother of deceased, has filed Criminal Revision No,20 of 2001, for enhancement of sentence, awarded to appellants. This judgment shall dispose of both the matters.
13. ' It is the prosecution case that, P.W.1 Pukar Khan lodged report (Exh.P/1-A) with the Assistant Commissioner, Dukki on 19-6-2000, with the allegations that, deceased on the even date at 7-00 a.m., went to Village Murpani to buy cigarettes. On his way back to his house. Appellants Nadir Khan, Sher Khan, Fateh Khan and Muhammad Siddique attacked him with Dandas. Fateh Khan was armed with a Pistol, who fired three shots at the deceased, who succumbed to the injuries, at the spot. The dead body of the deceased was brought to his house by Nauroz Khan and Dr. Hamid Khan. It is further stated that, Syed Shah was present at the place of incident and there was no previous enmity between the parties.
14. ' On receiving the said report same was incorporated in F.I.R. No,7 of 2000, registered by Levies Thana, Dukki. After registration of case, P.W.6 Kumail Ali, Assistant Commissioner, initiated the investigation, as Naib Tehsildar was out of station. He went to the house of complainant, took into possession the dead body of deceased vide memo.. Exh.P/2-A, he also went to the place of incident and recovered one empty, besides securing blood stained earth vide memo.. Exh.P/2-B. He prepared site plan (Exh.P/6-A) and thereafter handed over the papers to P.W.7 Amanullah Khan, Naib-Tehsildar for furiher investigation, who arrested the accused persons and recovered a licensed Pistol, at the instance of appellant Fateh Khan vide Memo.. Exh.P.2/C, and a Danda at the instance of appellant Sher Khan vide Memo.. Exh.P/2-D. On completion of investigation, he submitted challan Exh.P/7-A, before th learned Sessions Judge, Loralai.
15. ' Learned Sessions Judge, framed charge against appellant and acquitted accused, who denied the same and claimed trial. To prove its case, prosecution led evidence of following witnesses:--
(1) P.W. 1 Pukar Khan. He submitted application Exh.P/1-A, on the basis of which, F.I.R. Was lodged. He reiterated the Contents of the complaint. However, further deposed that incident was witnessed by Mazar Khan (P.W.4) Nasrullah Khan (not produced) Sarwar Jan (P.W.5) and Mst. Sheeren, sister of deceased (not produced).
(2) P.W.2 Ali Khan, Levies Hawaldar, is the attesting witness to. Memo. Exh.P/2-A whereby the dead body of deceased was taken into possession by the Assistant Commissioner and Exh.P/2-B, being recovery memo. Of empty and blood-stained earth. He is also witness to Exh.P/2-C. Being the recovery memo. Of pistol, recovered at the instance of appellant Fateh. Khan and Exh.P/2-D, recovery memo. Of Danda, recovered on the pointation of appellant Sher Khan.
(3) P.W.3 Dr. Muhammad Hayat. He examined the dead body of deceased in the house of complainant (P.W.1) and noted following injuries on his body and issued certificate Exh.P/3-A:--
(a) Gun shot circular wound on the left side of scalp (entrance).
(c) Exit wound on the right side of the scalp.
(d) Gun shot circular wound on the mid of forehead (entrance) (no exit wound).
(e) Lacerated wound 1-1/2 x 1-1/2 and skin deep on the middle side of scalp (above).
(f) Abrasion on the backside of the right shoulder.
(g) Abrasion on the left side of the abdomen.
(h) Multiple bruises all over the back of chest and lumber region.
(i) Abrasion and bruises above the nose.
(j) Swelling on the nose.
16. ' Cause of death: Injury on vital organ (brain)."
(4) P.W.4 Mazar Khan.
(5) P.W.5 Sarwar Jan.
(6) Statements of both the witnesses are identical. Both of them deposed that on the day of incident, they were going towards Bus Adda and when they reached at the lands of Bismillah, where Nasrullah was present, Mst. Shereen, sister of deceased came and informed them that a fight is going on between Piao Gul and accused party. They further deposed that, when they reached the place of incident, they saw the deceased lying injured and appellants decamped from the place of incident.
(7) P.W.6 Kumail Ali, Assistant Commissioner, who investigated the matter and thereafter handed over the papers to P.W.7 Amanullah, Naib Tehsildar, who completed the investigation and submitted challan.
(8) P.W.7 Amanullah Khan, Naib Tehsildar, is the second Investigating Officer who arrested the accused persons and after completion of investigation submitted challan Exh. P/7-A .
17. ' Appellants and acquitted accused were examined under section 342, Cr.P.C. Wherein they denied the prosecution case and pleaded innocence. However, they did not opt to give statement on oath, nor produced any defence.
18. ' On the conclusion of trial, learned Sessions Judge, vide impugned judgment, convicted and sentenced the appellants, whereas acquitted accused Muhammad Karim and Muhammad Naeem.
19. ' We have heard Mr. Muhammad Aslam Chishti, learned counsel for appellants, Mr. M. Zafar, learned counsel for petitioner in criminal revision and Mr. Sultan Mehmood, learned A.A.-G. For the State.
20. ' Learned counsel for appellants contended that;--
(A) P.W.1 Pukar Khan was not an eye-witness, he has not disclosed the source of his information, while lodging the report.
(B) As per the contents of report, Syed Shah was cited to have witnessed the incident, but he was not produced.
(C) Names of P.W.4 Mazar Khan, and P.W.5 Sarwar Jan were introduced after 4 to 5 days of the incident and their statements under section 161, Cr.P.C. Were also recorded after six days of the incident. Besides the conduct of said witnesses was also very improbable. Thus, it can be safely inferred that, their presence at the place of incident was doubtful. Additionally they were related to the deceased, therefore, they were interested witnesses.
(D) Mst. Shereen, sister of deceased, who as per showing of P.Ws. 4 and 5 had informed them about the fight between the deceased and appellants, has not been produced.
(E) P.W.2 Ali Khan, who is attesting witness to the recovery memo. Of pistol, had not supported the same. Besides the pistol was also not sent to Ballistic Expert, for opinion.
21. ' Mr. M. Zafar, learned counsel for petitioner argued that presence of witnesses was proved and they being independent witnesses, had also explained the delay in recording of their statements under section 161, Cr.P.C. As such, their statements were rightly believed by the trial Court.
22. ' Learned A.A.-G. Also opposed the appeal. However, he did not support the criminal revision, filed by complainant.
23. ' Before dilating upon the arguments of learned counsel for parties, it may be pointed out that, prosecution case, mainly rests on the statements of P.Ws.4 and 5, who are stated to be the eye- witnesses of the incident. The recovery of pistol and an empty from the place of incident cannot be used as corroborative piece of evidence, as both the articles were not sent to Ballistic Expert for report. Besides the attesting witness P.W.2, has also not supported the recovery, which will be discussed at a later stage.
24. ' Adverting to the first limb of argument of Mr. Muhammad Aslam Chishti, learned counsel, that complainant had lodged the report, without mentioning the source. Admittedly the complainant P.W.1 Pukar Khan, had not witnessed the incident. He did not disclose, as to who informed him about the incident and further as per his own showing, the dead body of deceased was brought to his house by Naruoz Khan and Dr. Hamid Khan, who have not been examined, for the reasons best known to prosecution. Besides, it is noted that, in the F.I.R., only Syed Shah has been shown as an eye-witness, but he has also not been examined.
25. ' Learned counsel Mr. Muhammad Aslam Chishti, argued with vehemence 'that, names of P.Ws. 4 and 5 were introduced on the fourth or fifth day of the incident and their statements under section 161, Cr.P.C. Were recorded on the sixth day of incident. It may be pointed out that, P.W. 6 Kumail Ali, Assistant Commissioner, after the incident went to the house of deceased alongwith Doctor and got the dead body examined in the house of P.W. Pukar Khan, and thereafter recovered an empty from the place of incident, secured blood-stained earth and prepared site plan. It is pertinent to point out here that in his cross-examination, he admitted that on the day of incident, no one claimed to be an eye-witness. Even he was confronted with the Daily Diaries after going through the same, he conceded that, case file was with him till 21st and none appeared before him claiming to be an eye-witness. P.W. 7 Amanullah Khan, Naib Tehsildar, who took over the investigation of case on 21-6-2000, deposed that till 24th, none came forward as an eyewitness of the incident. However, P.Ws. 4 and 5 as well as Mst. Shereen and Nasrullah, appeared before him and claimed to be the eye-witnesses of the incident and he recorded their statements. P.Ws. 4 and 5 admitted in their Court, that their statements were recorded on 24th June, 2000. They further admitted that from the day of incident till recording of their statements, they were very much present in the village. They did not bother to go to the Tehsildar for recording their statement. No explanation has come on record either from the Investigating Officer (P.W.7) or from P.Ws.4 and 5, as to why their statements were recorded after such a delay. For safe administration of criminal justice, considering the prosecution case in the light of above stated facts and circumstances, the prosecution witnesses cannot be relied upon. The source of information, not disclosed by the complainant, the eyewitness named in the report, not examined and the statements of P.Ws. 4 and 5 recorded after five days of the incident, without offering any explanation; such peculiar circumstances, renders the entire prosecution case doubtful and unreliable. It is settled that, statements under section 161, Cr.P.C. Recorded with delay, without giving any plausible explanation are to be ruled out of consideration. In this regard, reliance is placed on 1998 SCM R 570 Muhammad Khan v. Moula Bakhsh and another.
26. ' On minute scrutiny of the statements of P.Ws. 4 and 5, in our considered estimation, the conduct of the witnesses is improbable and unnatural. Both the witnesses deposed that, they witnessed the incident, but they did not intervene to save the deceased from the appellants, though they were closely related to deceased and further, after when the deceased was done to death, 'they did not even bother to take the dead body of deceased to his house. Inasmuch as, both the witnesses did not even care to see; whether the deceased was alive or dead, did not lodge the report. As per their own showing, they left the place of incident. Leaving the sister of deceased at the place of incident.
27. The statements do not inspire-confidence. It is very improbable and unnatural, at least after the fight was over, they could have taken the deceased to his house, but they, left him there and went away. Such attitude of the P.Ws. Does not appeal to a prudent mind. Thus keeping in view the principles of safe administration of criminal justice, their presence at the place of incident, is doubtful, making their veracity very unreliable.
28. ' Mr. Muhammad Aslam Chishti, learned counsel, further argued that P.Ws. 4 and 5 were only introduced, as they were related to the aeceased and had enmity with the appellant's party. It may be pointed out that, both the witnesses have not given any account of the incident in the manner, it took place. They deposed generally that deceased was attacked by appellants. There have not given a detail account of the F incident as to who attacked him first and many injuries were sustained by him. Both of them are silent about the bullet injury which further lends support to the argument of learned counsel, that presence of said witnesses at the place of incident is highly doubtful.
29. ' Learned counsel for appellants, also referred to material contradictions, in the statements of witnesses, such as, that P.W.5 stated that, when they reached at the place of incident, appellants had already fled away. Since we have not believed the statements of P.Ws. 4 and 5. Therefore, it would be of no use to further discuss the worth and credibility of their statements. In this regard, we are fortified by the dictum laid down in Din Muhammad v. The Crown 1969 SCMR 779, wherein following observations were made:-- "Further the evidence does not appear to have been appreciated by the learned Judges according to correct principles. To test the testimony of a witness, Courts should not consider, whether there is consistency in the narrative, but should also consider whether version is probable or not."
30. ' Coming to the last contention, regarding recovery of crime weapon at the instance of appellant Fateh Khan. Suffice it to observe that, we are inclined to disbelieve the recovery, as the same was not supported by the attesting witness (P.W.2 Ali Khan). He stated in cross- examination that, pistol was not recovered in his presence from the house of appellant. Besides the recovery of pistol, is of no use to prosecution, in absence of the report of Ballistic Expert.
31. ' Learned Trial Court, had erroneously relied upon the statements of P.Ws .4 and 5 and held that their statements, receive corroboration from the medical evidence and recovery. Suffice it to observe that violent death of deceased was not disputed by the defence and the appellants had only denied their involvement in the commission of offence.
32. ' In view of the above discussion, in our considered view, the prosecution has miserably failed to bring home the charge against appellants, thus by giving them benefit of doubt they are acquitted of the charge.
33. ' As a result, appeal filed by appellants is accepted and they are ordered to be released forthwith, if not required in any other case and the criminal revision filed by petitioner Mst. Aram Bibi, is rejected.