PLJ 2007 Cr.C. (
Present: Tariq Shamim, J.
AHMAD KHAN and another--Appellants
versus
STATE--Respondent
Crl. Appeal No. 1272 of 2004,
heard on 19.9.2006.
----Ss. 302(b) & 148--Conviction and sentence
recorded against accused by trial Court--Assailed--Held: Recovery of weapon of
offence was not proved on the record as neither the empties recovered from the
spot nor the weapon of offence were sent to the Forensic Science Lab for expert
opinion--Medical evidence also did not corroborate the eye-witness account to
the extent of the injury--Order accordingly. [P.
100] A
Mr. Shahid Azam,
Advocate for Appellants.
Mr. Rab Nawaz
Khan Niazi, Advocate for Complainant.
Ch. Nazir Ahmed, Advocate for
State.
Date of hearing: 19.9.2006.
Judgment
This judgment will dispose of Crl.
Appeal No. 1272 of 2004 filed by Ahmad Khan and Behram
Khan appellants and Crl. Appeal No. 1173 of 2004
filed by Ikram Ullah
appellant who were convicted under Section 302(b) PPC read with Section 149 PPC
and sentenced to life imprisonment each as Tazir with
further direction to pay Rs. 50,000/- each as
compensation to the legal heirs of the deceased, in default whereof to further
undergo six months S.I. each. All the three appellants were also convicted
under Section 148 PPC and sentenced to undergo two years R.I. each. Both the
sentences were ordered to run concurrently availing the benefit of Section
382-B Cr.P.C. vide judgment dated 26.6.2004 rendered
by the learned Addl. Sessions Judge Mianwali. Ehsan Ullah Khan complainant has also filed Crl.
Revision No. 699 of 2004 for enhancement of the sentences awarded to the
appellants, which is being dealt with through this judgment.
2. Briefly stated
the facts of the case as per FIR Ex. PV lodged by complainant Ehsan Ullah Khan PW-12 are that
on 3.6.2003 at about 6 p.m. while he, alongwith Khizar Hayat, Maryam
Khatoon (deceased), Ikram Ullah, Abdullah Khan, was on his way to his house Wandha Dalili Wala
from Musa Khel City
suddenly Muhammad Riaz, Irshad
Khan, (both absconders), Ahmad Khan, Behram Khan all
armed with rifles, Shah Jahan armed with .12 bore
gun, Khizar Hayat, Safdar Khan armed with rifles, Amir,
Amir Abdullah armed with .12 bore guns alongwith two unknown accused armed with fire-arms emerged
arising Lalkara that they had come to take revenge
for the murder of their mother. Ahmad Khan accused fired with his rifle hitting
on the left foot of Khizar Hayat.
Muhammad Riaz fired rifle shot hitting Khizar Hayat on the left side of
head who succumbed to the injuries then and there. Mst.
Maryam Bibi his mother
rushed towards Khizar Hayat
to save him whereupon Muhammad Irshad accused fired
at her hitting her left arm and flank. The other accused also started firing. Maryam Khatoon mother of the
complainant while taking towards hospital in injured condition also expired in
the way, hence the present case.
3. The motive for
the occurrence as alleged was that in the year 1999 the mother of Khizar Hayat (since P.O.) was
murdered and two other persons were injured, so due to that grudge, the accused
persons while sharing common object attacked upon the complainant party to take
the revenge.
4. Tariq Ahmad S.I. (PW 14) took over the investigation who
after registration of the case reached the place of occurrence, prepared injury
statement Ex. PN/1, inquest report Ex. PQ of Khizar Hayat deceased and blood-stained earth was taken into
possession vide memo Ex. PW and sent the dead body under the escort of Nawab Khan constable for postmortem examination to DHQ
Hospital Mianwali. He also collected blood stained
earth from the place where Maryam Bibi
received the injuries and took the same into possession vide recovery memo Ex.
PX. He also took into possession 14 empties vide memo Ex. PY, Ex. PZ and Ex.
PAA. After necessary proceedings he went to DHQ Hospital Mianwali
and prepared injury statement Ex. PB and inquest report Ex. PC and sent her
dead body to the mortuary under the escort of Sher Bahadur Constable. On 4.6.2003 he also recorded the
statement of Shah Jahan accused as complainant in the
cross version Ex. PCC and registered a cross case. He also prepared the injury
statement of Mst. Hadayat Khatoon who was admitted in the hospital and went to the
place of occurrence the same day and secured the blood-stained earth from the
place where Mst. Hadayat Khatoon received the injuries and recorded her statement
under Section 161 Cr.P.C. On 7.6.2003 he received the
information about the death of Mst. Hadayat Khatoon. He arrested the
accused persons and got Muhammad Irshad and Muhammad Riaz co-accused declared as proclaimed offender. During
investigation Behram Khan and Ahmad Khan appellants
got recovered 7 mm rifles and Ikram Ullah accused also got recovered a rifle. He investigated
the case in presence of both the parties and found the cross version of the
accused side false. He also declared Safdar, Muhammad
Amir, Amir Abdullah alongwith Khizar Hayat P.O. accused as innocent and place their names in
Column No. 2 of the challan whereas he found guilty Behram Khan, Ahmad Khan, Ikram Ullah, appellants,
Shah Jahan and Yousaf
co-accused. After completion of the investigation he submitted challan to the Court.
5. At the trial,
prosecution in order to prove its case produced as many as 14 witnesses and
tendered in evidence reports of Chemical Examiner Ex. PNN, Ex. PPP, Ex. PQQ and
that of Serologist Ex. PRR, Ex. PSS and Ex. PTT and closed the case. The
learned trial Court recorded the statement of Muhammad Mukhtar
HC as CW1.
6. After recording
the prosecution evidence the trial Court recorded the statements of the
appellants and that of their co-accused under Section 342 Cr.P.C.
Shah Jehan accused also got recorded his statement
under Section 340(2) Cr.P.C. In
reply to the question "Why this case against you?" Ahmad Khan
appellant stated as under:--
"Actually, the complainant party was aggressor. They
formed an unlawful assembly and while armed with fire-arm weapons caused
injuries to Mst. Hadayat Khatoon who expired in consequences of those injuries. Shah
Jahan co-accused lodged the report on the day of
occurrence, but the police in collusion with the complainant party, got me
falsely involved in this case."
7. The learned
counsel appearing on behalf of the appellants argued that the complainant PW-12
and Ikram Ullah PW-13, the
eye-witnesses of the occurrence were not present at the place of occurrence at
the relevant time; that during the cross-examination major contradictions were
made by the said PWs in their statements; that the
fatal injuries to the deceased Khizar Hayat and Mst. Maryam Khatoon were attributed to
co-accused Riaz Ahmad and Irshad
who have been declared proclaimed offenders; that the appellants were not
attributed any injury to the deceased and that it was in fact the complainant
party who was the aggressor in the case; that Safdar
Khan, Muhammad Amir, Amir
Abdullah accused were found innocent by the police during investigation and
were acquitted by the learned trial Court alongwith
Shah Jahan Khan, Khizar Hayat and Muhammad Yousaf
accused; that the investigating officer further opined that Safdar
Khan, Muhammad Amir and Amir
Abdullah were not present at the place of occurrence at the relevant time; that
the enmity was proved between the parties and due to the said enmity the
appellants have been involved in the case by the complainant side; that the
statements of the eye-witnesses are not corroborated by any other incriminating
material and that the appellants are entitled to be acquitted.
8. The learned
counsel appearing on behalf of the complainant as well as the learned State
counsel argued that the FIR was promptly lodged wherein the names of the
appellants were duly mentioned and specific roles have been ascribed to them;
that enmity between the parties was admitted and the appellants in order to
take revenge of the murder of Mst. Sakina and injury caused to Shah Jahan
accused and Mst. Zainab
launched an attack upon the complainant party when they were coming back from Musa Khel to their village Dalili Wala; that in the incident
Khizar Hayat and Mst. Maryam Khatoon
died due to the injuries sustained by them at the hands of the appellants; that
the cross version lodged by the accused through Shah Jahan
was found to be false during investigation; that the assertion of the learned
counsel for the petitioner that the complainant party was the aggressor and had
launched an attack on them was belied by the fact that the accused were 11 in
number and all armed with fire-arm weapons as against the complainant party
which consisted of 4 persons, hence, the stand taken by the learned counsel
does not appeal to mind that four persons would attack 11 persons; that Mst. Hadayat Khatoon
was also injured and died due to the injuries sustained by the firing of the
accused persons; that Khizar Hayat
deceased was armed with .12 bore gun which he was carrying for his own safety
due to the enmity with the appellants; that the statement of the eye-witnesses
PW-12 and PW 13 were corroborated by the medical evidence as also other
incriminating material; that the prosecution had proved the case of Qatl-e-Amd, attempt to murder and rioting against all the
accused persons in furtherance of their common object for the revenge of the
murder of Mst. Sakina.
9. I have heard
the learned counsel for the parties and perused the record with their
assistance. The ocular account in the instant case was furnished by PW-12 Ehsan Ullah and PW-13 Ikram Ullah. In their statements
both the witness accepted the fact that there is enmity between the parties.
The evidence of the said PWs on account of admitted
enmity needs corroboration from some independent source and cannot be
straightway accepted for the purpose of conviction of the appellants. The
medical evidence furnished by Dr. Khalida Nusrat PW-2 who had conducted postmortem examination on the
dead body of Mst. Maryam Khatoon and Dr. Muhammad Farooq
PW-9 who conducted the postmortem examination on the dead body of Khizar Hayat deceased
corroborated the ocular account to the extent of injuries inflicted on the
deceased resulting in their deaths caused by Muhammad Riaz
and Irshad Khan proclaimed offenders. However, to the
extent of Ahmad Khan appellant the medical evidence does not corroborate the
eye-witness account furnished by the aforementioned PWs
inasmuch as the fire attributed to him at the left foot of the deceased Khizar Hayat from a distance of
18 Karams (90 feet) could not have caused Injury No.
3 as the dimension of the injury is cm x
cm. Since the case of the prosecution is that the other accused were
also firing at the complainant party from the same distance with their
respective weapons which included shotgun, as such the possibility of the said
injury being caused by a stray pellet cannot be ruled out. The site-plan Ex. PG
also reflects that not only the distance from where Ahmad Khan appellant had
fired from was 18 Karams but also that Riaz proclaimed offender was directly in his line of fire.
Thus, it can be safely said that the injury referred to above and attributed to
Ahmad Khan appellant by the eye-witnesses is not corroborated by the medical
evidence.
10. The eye-witnesses
Ehsan Ullah PW 12 and Ikram Ullah PW-13 in their
statements before the trial Court stated that the attack had been launched by
the accused side who were 11 in number and all armed with fire-arms. The stand
taken by the said PWs does not appeal to mind as in
case of a pre-meditated and a planned attack, none of the persons from the
complainant side would have been spared. Except for Khizar
Hayat and Mst. Maryam Bibi deceased no other PW
has sustained any injury in the said occurrence. To my mind it appears that the
occurrence has taken place on account of a chance meeting of the two parties
who had a long standing enmity whereupon both the sides resorted to firing at
each other. This is supported by the fact that Mst. Hadayat Khatoon from the accused
side was also injured in the said incident who subsequently succumbed to the
injuries at the hospital. It is also in the statement of the said witnesses
that Khizar Hayat accused
was armed with a .12 bore gun and he had fired one shot from his weapon. The
injuries sustained by Mst. Hadayat
Khatoon are in line with the injuries which can be
caused by a shot from a .12 bore gun.
10. The argument
of the learned counsel for the appellant that the occurrence was not witnessed
by the said PWs carries some weigh as Ehsan Ullah PW 12 in his
cross-examination stated that the name of Ikram Ullah appellant and Muhammad Yousaf
were disclosed to him by his phophizad Kafayat Ullah after the
occurrence. The learned counsel has drawn my attention to the fact that the
said disclosure was allegedly made by Kafayat Ullah one month and nine days after the occurrence, whereas
it is an admitted fact and it is so stated by the said two eye-witnesses that
the complainant party as well as the accused party were also related and lived
in the same village. If Ikram Ullah
and Yousaf had participated in the occurrence there
is no reason why they should not have been identified by the complainant at the
time of occurrence and nominated in the FIR.
11. In so far as
the recoveries of weapons of offence from the appellants is concerned, 7 mm
rifles were recovered from Ikram Ullah
and Ahmad Khan appellants on 8.8.2003 which is approximately two months and 5
days after the occurrence. Similarly the recovery effected from Bahram Khan of 7 mm rifle P11 and 7 live bullets P12/1-7
taken into possession vide recovery memo Ex. PM ws effected on 20.7.2003 which is also after a lapse
of one month and 17 days from the date of occurrence. The empties recovered
from the spot as well as the weapons of offence were never sent to the Forensic
Science Lab as there is no such report on the file. Further, the witness of
recoveries effected from Ikram
Ullah and Ahmad Khan appellants is PW 7 Nawab Khan Constable, who in his cross-examination admitted
that none from the public was called by the I.O. to be associated in the
recovery proceedings although a number of persons from the locality were
present. A similar statement was made by Habib Ullah Constable (PW-8) who is the only witness of recovery
in respect of the 7mm rifle recovered from Behram
Khan appellant. The recovery of weapons was not only
belated but also in clear violation of Section 103 Cr.P.C.
Therefore, it can be safely concluded that the recoveries in the case are of no
consequence and cannot be relied upon by the prosecution for any corroborative
purpose.
12. During the
investigation Safdar Khan, Muhammad Amir and Amir Abdullah accused
were found innocent by the
investigating officer as they were not found to be present at the spot at the
time of occurrence. It is, therefore, obvious that the complainant has
implicated as many persons as possible from the accused side. The net was
thrown wide deliberately in order to ensure that no male member from the
accused side was spared to pursue the criminal case. The learned trial Court
while agreeing with the investigation acquitted the said three accused persons
and also extended benefit of doubt of Shah Jehan
Khan, Khizar Hayat and
Muhammad Yousaf accused. The trial Court while
convicting the appellants believed the same set of evidence which it had
disbelieved qua the acquitted accused.
13. From the
above, it is abundantly clear that the prosecution has failed to prove its case
against the appellants beyond a reasonable doubt. The learned trial Court
convicted the appellant Ikram Ullah
and Behram Khan solely on the ground that the
recovery of weapons of offence had been effected from them without taking into
consideration the infirmities and defects in the recovery proceedings. Ahmad
Khan appellant was convicted by the learned trial Court on the ground that he
had caused injury on the foot of Khizar Hayat deceased and that recovery of weapon of offence had
been effected from him. The learned trial Court lost
sight of the fact that the recovery of weapon of offence was not proved on the
record as neither the empties recovered from the spot nor the weapon of offence
were sent to the Forensic Science Lab for expert opinion. The medical evidence
also did not corroborate the eye-witness account to the extent of the said
injury. I am, therefore, of the considered view that the prosecution has
miserably failed to prove its case against the appellants.
14. For what has
been discussed above, both the appeals (Crl. A. Nos. 1272 and 1173 of 2004) are accepted, the
conviction and sentences awarded to the appellants are set-aside and they are
acquitted from all charges. They shall be released from prison forthwith if not
required in any other case.
15. Criminal
Revision No. 699 of 2004 seeking enhancement of sentence of the appellants is
dismissed.
(Fouzia Fazal) Order accordingly.