[Peshawar]The STATE and another---RespondentsCriminal Appeals Nos.34, - PDF document

[Peshawar]The STATE and another---RespondentsCriminal Appeals Nos.34, 60 and 16 of 2012, decided on 16th October, 2012. (a) Penal Code (XLV of 1860)-------Ss. 324 & 337-F(iii)---Pakistan Arms Ordinance (XX of 1965), S.13---Attempt to commit qatl-e-amd, causing Mutalahimah to any person and possessing unlicensed arms---Appreciation of evidence---Benefit of ce having been noted between the complainant and accused party since as per site plan, accused were firing at a distance of 300/350 yards, it was in circumstances, impossible for the complainitness to say as to whose shot proved effective---Complainant had not specified the weapons of offence---Non-specification of weapon in the hands of accused reflected that the complainant party had not seen the accused at the relevant time---Complainant produced only one prosecution witness, while the remaining were abandoned---Report having been lodged after the delay of more than two hours, deliberation and consultation with other family members, could not be ruled out---Medico-legal Report and statement of the doctor revealed that the victim was examined before lodging the report---Report of Forensic Science Laboratory could not be given any weight for the reason that empties were not sent to the Forensic Science Laboratory till the gun was recovered and gun and empties both were lying in the Police Station, and were sent together, after the delay of about two months of the occurrence---No explanation was offered as to where same were lying during that period---Possibility of substitution of the empties could not be ruled out---Complainant though had an alleged motive, but the prosecution had failed to establish the same---Prosecution, in circumstances, had failed to prove the guilt of accused through unimpeachable ocular testimony---Conviction of accused, could not be maintained, in circum-stances---While extending the benefit of doubt, accused was acquitted of the charge and was set at liberty, in circumstances. Ali Sher and others v. State 2008 SCMR 707 rel. (b) Criminal trial--- ----Motive---Not necessary for the prosecution to establish motive in every case, but once, it had set up a motive and failed to prove the same, then prosecution and not the defence must bear the (c) Criminal trial---e was not sufficient to record conviction and it could be used only as corroboratory and confirmatory in support of ocular account---When the ocular Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373 rel. (d) Criminal trial-------Duty of prosecution---Prosecution was always bound to prove its case beyond any shadow of doubt---Stamp of injury on witness would only indicate the presence of witness at the relevant time, but the same was not the guarantee of the truthfulness---General rule of appreciation of evidence was that want of interest or absence of enmity, would not stamp the statement of particular witness with presumption of truth; and that much wof the statement of a witness---Real test was as to whether the statement of a witness was in consonance with the probabilities, whether it would fit in with the other evidence; and whether it inspired confidence. Muhammad Iqbal v. The State 1984 SCMR 930; Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639 and Haroon alias Harooni v. The State and another 1995 SCMR 1627 (e) Criminal trial-------Witness---Disbelieving a witness---To disbelieve a witness, it was not necessary that there should be numerous infirmities---If there was one which impeached the credibility of a witness, that could make the entire statement doubtful---Conviction must be based on unimpeachable evidence; and certainty of guilt, and any doubt arising in the prosecution case must be resolved Muhammad Khan and another v. The State 1999 SCMR 1220 rel. Sher Muhammad Khan for Appellant. Masood-ur-Rehman for Respondent. Ikramullah Khan, A.A.-G. for the State. Date of hearing: 16th October, 2012. ASSADULLAH KHAN CHAMKANI, J.---This criminal appeal is directed against the judgment dated 22-2-2012 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Buner at Dager, whereby Mir Ahmad Shah, the appellant, involved in case F.I.R. No. 337 dated 23-8-2010 under sections 324/34, P.P.C. read with section 13 of Arms Ordinance, 1965 Under section 324, P.P.C. to undergo imprisonment for five years (on four counts) with fine to the tune of Rs.5,000 (on four counts) in default whereof the accused shall undergo imprisonment for two months. The amount of fine on realization, be paid to victims as compensation in terms of section (ii) Under section 337-F(iii), P.P.C. to pay Daman to the tune of Rs.10,000 to complainant Shah Zameen for causing him Jurh Ghayr-Jaifah Mutalahima. (iii) Under section 13 of Arms Ordinance, 1965 to undergo imprisonment for three years. (iv) All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C, while accused Said Mar Shah was acquitted of the charge. 2. Mir Ahmad Shah, the appellant, has filed Criminal Appeal No. 34 of 2012 against his conviction, while Gul Zameen complainant filed Criminal Appeal No. 60 of 2012 against acquittal of Said Mar Shah and Criminal Revision No. 16 of 2012 for the enhancement of sentence of Mir Ahmad Shah appellant. 3. I intend to dispose of the Criminal Appeals Nos. 34 of 2012, 60 of 2012 and Criminal Revision No.16 of 2012 through this judgment. 4. Facts of the case succinctly are that complainant Shah Zameen lodged report in injured condition in Civil Hospital, Nawagai, that on 23-8-2010 he along with his brother Gul Zameen, mother Mst. Akozy and wife Mst. Baswar were working in the field known as "Sargai Paty" when at 1600 hours accused Mir Ahmad Shah and Said Mar Shah sons of Ziarat Shah came duly armed and started firing at them, as a result of fire shot of Mir Amad Shah, he was hit on right thigh while his other companion remained escaped from the firing of accused. Motive for the occurrence was that 10/11 months back Zahir Shah, the brother of accused, was killed for which he was suspected. The report of the complainant was reduced into writing in shape of Murasilla 5. After registration of the case and completion of investigation, complete challan in the case was submitted. The learned trial Court, after observing legal formalities within the meaning of section 265-C, Cr.P.C, charge-sheeted the accused to which they pleaded not guilty and claimed trial. After conclusion of trial, statements of accused were recorded under section 342, Cr.P.C. wherein they claimed to be innocent. Learned trial Court after hearing arguments in the case, convicted and sentenced the accused-appellant as stated above while Said Mar Shah was acquitted of the charge, hence, the above referred Criminal Appeals and Criminal Revision were filed. 6. Learned counsel for the appellant argued that besides the delay of more than two hours in lodging the report, the story advanced by the prosecution has not been established by the ocular account furnished by complainant Shah Zameen (P.W.5) and Gul Zareen (P.W.6) as their statements are contradictory to each other, therefore, the same could not be believed. He argued that, though, complainant received injury but his statement cannot be taken as gospel truth because keeping in view the distance between the parties and that too, in the ditch, identification of the accused was impossible. He argued that the complainant has not seen the assailants at the time of firing, therefore, he could not specify and disclose the weapons of offence. He argued that P.W.6 is not an eye-witness of the occurrence and he has given evidence in favour of the prosecution because of his close relationship with the complainant while the remaining P.Ws. were abandoned by the prosecution. He further argued that there are between the ocular account and medical evidence. Learned counsel further argued that the alleged crime empties and kalashnikov were sent to FSL with abnormal delay. He contended that motive was set up in the first report but the same has not been proved. He contended that, though, there is abscondance in the account of appellant but the same can be used only as a corroboratory in support of ocular account but when the testimony of ocular account is not iring, then abscondance alone is not sufficient to record conviction of the appellant. Lastly, he submitted that the prosecution has miserably failed to prove its case against the appellant-convict beyond any shadow of doubt and the learned trial Court has wrongly and mistakenly assessed the evidence on record and passed the impugned judgment of conviction without any cogent evidence, therefore, the same be set aside and the accused be acquitted of the charge. 7. On the other hand, learned A.A.-G. and counsel for the complainant argued that the occurrence took place in broad-day-light and the accused-appellant along with the acquitted co-accused were charged in a promptly lodged F.I.R., which is supported by the statement of complainant P.W.5, eye-witness, namely Gul Zamari P.W.6, medical evidence, recoveries of crime empties and blood-stained earth from the spot, blood-stained garments, FSL result, noticeable abscondance and motive. They argued that the prosecution proved its case against the accused-appellant beyond any shadow of doubt and further submitted that though there are minor discrepancies in the evidence of prosecution but the same are not fatal to the prosecution case and contended that the sentence awarded by the trial Court be enhanced and accused Said Mar 8. I have heard learned counsel of the parties and gone through the record with their valuable assistance. 9. I would like to examine first as to whether the complainant and eye-witness had seen the accused at the time of occurrence and the report of the complainant is without delay. The case of prosecution is that the complainant party was busy in "gudding maize crop" in the field when accused Mir Ahmad Shah and Said Mar Shah started firing at them as a result of fire shot Ahmad Shah, complainant Shah Zameen was hit while the remaining P.Ws. remained escaped. Perusal of file would reveal that there was sufficient distance between the complainant and accused party because as per site plan the accused were firing at a distance of 300/350 yards. The Investigating Officer had shown the accused at Points Nos.2 and 3 which is a ditch (Tanganama kanda); therefore, was impossible for the complainant and the P.W. that whose fire shot proved effective. It is also strange on the part of the complainant that he has not specified the weapons of offence. The people of this area what to say of male even the female can identify the different caliber of weapons for the reason that this area is facing terrorism and because of prevalent terrorism in the area of Malakand Division, even their women are weapons at the time of need. So, in this background, non-specification of weapon in the hands of accused reflects that the complainant party had not seen the accused at the relevant time. Had the complainant seen the accused while firing, definitely he could have disclosed the kind of weapon in his first report. Besides the above, the complainant produced only Gul Zameen as P.W.6 while the remaining P.Ws. Mst. Akozy and Mst. Baswar Jana were abandoned. The file also speaks that the occurrence took place at 1600 hours, while the report has been lodged at 18.15 hours, after the delay of more than two hours whereas the distance between the place of occurrence and the Police Station is 14/15 kms The complainant in his cross-examination admitted that after receipt of injury he was shifted to his house by his companion, therefore, deliberation and consultation with other family members in the house for charging the accused cannot be ruled out. Moreover, as per Medico-legal Report and statement of the doctor, the victim was examined at 6-10 p.m. (18.10 hours) before lodging the report. According to contents of Murasilla Exh.PA, Said Rahim S.-I. (P.W.10) after recording report of the complainant and preparing injury sheet, handed over the injured to Doctor in the hospital, which fact has also been stated by him in his examination-in-chief but Dr. Sher Zaman (P.W.3) in his examination-in-chief stated that the victim was produced to him by Ajmal Khan A.S.-I.at 6-10 p.m., meaning thereby, the complainant first went to the Police Station and, thereafter, the local police produced him before the doctdoubt on the story of prosecution. According to prosecution story, the complainant party was busy in "gudding" the maize crop at the relevant time but the Investigating Officer has neither took pain to take into possession the agricultural instruments nor the fertilizer and even not shown the marks of broken maize crop or the work done by the complain10. The prosecution alleged that three crime empties of 7.62 bore were recovered from the spot and the same were sent to FSL along with the kalashnikov recovered at the pointation of accused and positive result of FSL fully corroborate the story of prosecution. I find no difficulty to hold that the FSL report of the Forensic Science Laboratory, marked as Exh.P.W.10/13 cannot be given any weight for the reason that the empties were not sent to the Forensic Science Laboratory till the gun was recovered and then gun and empties both were lying in the Police Station and, later on, were sent together and that too, after the delay of about two months of the occurrence. No explanation was offered as to where the same were lying during this period; therefore, no reliance can be placed on the FSL report as the possibility of substitution of the empties cannot be ruled out. Delay of one month and twenty (20) days in sending the empties and weapon of offence to FSL definitely destroyed the evidentiary value of the recoveries. In case of Ali Sher and others v. State, reported in 2008 SCMR 707, it was held by the apex court "Crime empties allegedly found at the place of occurrence were sent to Forensic Science laboratory along with the crime weapons 12 days after the recovery of alleged weapons. Delay had destroyed the evidential value of such piece of evidence and the recoveries could not be the ocular testimony". 11. Though, the complainant alleged motive in his report but the prosecution has failed to establish the same. Though, it is not necessary for the prosecution to establish motive in e very case, but once it has set up a motive and fails to prove the same, then prosecution must bear the 12. The only circumstance in the account of the appellant is his abscondance but on this point the law is by now well-settled that the same alone is not sufficient to record conviction and it can be used only as a corroboratory and confirmatory in support of ocular account but when the ocular account is disbelieved then it is of a very little value Reliance in this regard is placed on the case of Rasool Muhammad v. Asal Muhammad and 3 "Abscondence per se is not proof of the guilt of an accused person. Disappearance of a person named as a murderer/culprit after the occurrence but natural, whether named rightly or 13. As a matter of fact the prosecution is always bound to prove its case beyond any shadow of doubt. Stamp of injury only indicates the presence of the witness at the relevant time but the stamp of injury is not the guarantee of the truthfulness. Gul Zameen, the alleged eye-witness, is the father of complainant. In criminal jurisprudence, the general rule of appreciation of evidence is that want of interest or absence of enmity does not stamp the statement of a particular witness with presumption of truth and that much depends on the intrinsic value of the statement of a witness. The real tests are as to whether the statement of a witness is in consonance with the probabilities, whether it fits in with the other evidence and whether it inspires confidence in the mind. Reliance in this regard is placed upon the cases of Muhammad Iqbal v. The State (1984 SCMR 930), Muhammad Arshad alias Achhi v. The State (1995 SCMR 1639) and Haroon alias Harooni v. The State and another 1995 SCMR 1627. It is also fundamental principle of jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful. It has been now settled that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. Reliance in this regard is placed on case Muhammad Khan 14. In view of the above discussion and scrutiny of evidence from all angles, I am of the view that the prosecution has failed to prove the guilt of the accused through unimpeachable ocular testimony. The basic principle of Sharia/Law that conviction must be based on evidence beyond any shadow of doubt because the damage resulting from erroneous sentence is irreversible and the principle that it is better to acquit guilty person than to punish an innocent one, but as the prosecution has failed to prove the guilt of appellant beyond any shadow of doubt, therefore, the conviction of appellant cannot be maintained. Resultantly, while extending the benefit of doubt, I accept the appeal filed by the appellant-convict by setting aside his conviction and sentence and acquit him of the charges levelled against him. He be set at liberty forthwith, if not required in Similarly, Criminal Appeal No.60 of 2012 filed by Gul Zameen complainant against the acquittal of Said Mar Shah and Criminal Revision No.16 of 2012 for the enhancement of sentence are also dismissed. These are the detailed HBT/405/P Order accordingly