2011 P Cr. L J 328
[Quetta]
Before Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
SHADI KHAN and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Appeal No. (S) 118 and Murder Reference No. (S) 19 of 2008, decided on 9th
September, 2010.
Penal Code (XLV of 1860) ---
----Ss. 302 & 34 ---Qatl-e-amd, acts done by several persons in furtherance of common
intention ---Appreciation of evidence ---Benefit of doubt ---Eye-witnesses made contradictory
statements as to the time of their arrival at the place of occurrence and the time of
occurrence ; the place where they hid themselves to save their lives when accused opened fire;
arrival of Police at the place of occurrence and presence of people of locality at the place of
occurrence after the occurrence ---Site plan did not show any veranda where w itnesses were
allegedly sitting at the time of occurrence ---Witnesses of recovery also contradicted each
other regarding number of cartridges recovered ---Report of Firearm Expert revealed that fires
were shot by two different weapons as against the prosecu tion version which alleged the use
of Klashnikov only ---No evidence on record supported the alleged motive ---Witnesses could
not be believed to have recognized the co -accused standing behind a four f e e t wall while
they had hidden themselves to save their lives ---None of the inmates of the house
where the occurrence took place were interrogated by Police ---Complainant and the eye -
witnesses, not being residents of the said house, were merely chance witnesses; evidence of
such. witnesses had to be dealt with c arefully ---Trial Court failed to consider material
contradictions in prosecution case which could not be made basis of conviction ---Reasonable
doubts in prosecution case entitled accused to benefit of doubt ---Appeal was accepted and
accused were acquitted of the charges.
Muhammad Aslam Chishti for Appellants.
Haji Liaquat Ali for the State.
H. Shakil Ahmed for the Complainant.
Date of hearing: 20th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---Instant appeal has been filed by the appe llants
seeking setting aside of judgment dated 26 -12-2008 of Sessions Judge, Dera Allah Yar,
whereby appellant No.2 has been awarded punishment of death for offence under
section 302, P.P.C., while appellant No.1 is awarded life imprisonment for the offenc e,
with compensation of Rs.50,000 required to be paid by each accused to the legal heirs
of deceased and their acquittal of the charge. It is their contention that there is no
evidence against appellant Shadi Khan, involving him in commission of the offenc e.
Further, there are material contradictions in statements of eye -witnesses, while all the
three are chance witnesses. Recovery of crime weapon is though made on pointation of
Appellant No.2, that too on 17 -9-2005, the last day of permissible police custo dy, while
no independent witness was associated with the disclosure statement or factum of
recovery. In addition the place of recovery was not in exclusive possession of Appellant
No.2. It is further their contention that the article was sent to FSL, which was received
on 27 -1-2006 after more than four months that too without any explanation, which
makes the report suspected and there is apprehension of tampering of crime weapon.
Further, matching and not matching of empties also makes the report doubtful. The
motive as alleged is not proved.
Murder Reference No.19 of 2008 is also made by the Sessions Judge, Dera Allah Yar
for confirmation of sentence of death awarded to appellant No.2/convict Mehran.
The brief facts of the case are that the incident occ urred on 22 -1-2005 at 12:00 noon, reported
on same day at 1 -30 p.m. by one Zulfiqar Ali, where upon F.I.R. No.14 of 2005 Police
Station Dera Allah Yar District Jaffar Abad was registered. It has been reported that at 12 -00
noon on 22 -1-2005 complainant Zul fiqar along with his cousins Abdul Ghaffar and Rahim
Bakhsh visited his father Abdul Rasheed, who was residing separately from him at Goth Nabi
Bakhsh Khosa after contracting second marriage, for Eid greeting, while they were sitting in
courtyard of the ho use, on hearing noise of motorcycle his father took some steps towards
main gate, meanwhile Mehran, appellant No.2 armed with Kalashnikov entered from the door
and fired at his father with intention to kill, who fell down in injured condition, while they
save their lives while hiding themselves in rooms. Mehran left the site, while they saw from
above portion of the wall that Shadi Khan, appellant No.1 was present with motorcycle, they
both escaped towards south. The reason of enmity described was the fact that his father
forbids appellant Mehran from visiting his house. Both the persons have common intention to
kill his father Abdul Rasheed, who died at the spot. Appellant Shadi Khan was arrested on
16-3-2005, while appellant Mehran was arrested on 4 -9-2005 . On completion of investigation
case was challaned, while charge was framed on 3 -5-2005 against appellant Shadi Khan,
whereupon trial commenced to his extent, several witnesses appeared, whose statements were
recorded. Meanwhile accused Mehran was also ar rested, whereupon case was challaned to his
extent also, charge was framed against him on 11 -11-2005, on his denial, the witnesses
already appeared were again called and they were re -examined. Nine witnesses appeared
from side of prosecution. In defence th e appellants did not produce any witness, nor recorded
their own statements on oath. On completion of evidence the trial Court finding them guilty
of the charge, thus punished them for the offence for life imprisonment and death penalty.
Being aggrieved of the same instant appeal has been filed on grounds mentioned hereinabove.
The learned counsel for the parties argued the matter at length. As per learned counsel for the
appellants the trial court framed defective charge to the extent of appellant Shadi Khan.
Further, no active role is given to accused Shadi Khan, nor any motive is attributed to him.
No recovery is effected from him even the alleged motorcycle is not recovered, nor any
evidence is collected in same respect. Presence of appellant Shadi Kha n at place of
occurrence is doubtful. P.W.3 and P.W.4 are close relatives of the deceased. It is further
contended by learned counsel that P.W.3 and P.W.4 though termed as eye -witnesses, but in
fact they are chance witnesses, thus a careful appreciation is required to be made. The
recovery made on disclosure and pointation of accused Mehran is doubtful, as he remained in
custody of police since 4 -9-2005 and on last day of his remand disclosure was made. There is
no explanation about such a delay. The house from where recovery was effected was
inhabited and not in exclusive possession of appellant Mehran. Furthermore, the witnesses of
disclosure memo. and recovery memo. are one and the same. All these facts made the
recovery doubtful. As there is delay in sen ding of arms to the Expert, while there is
contradiction in statement of recovery witnesses which makes the recovery doubtful. In
rebuttal the State Counsel contended that the eye -witnesses are natural witnesses, there is no
improvement in their statements . The common intention of the accused persons is apparent.
The recovery of crime weapon is not denied, nor the delay is pointed out at relevant time. As
such conviction is required to be upheld. The counsel for the complainant while arguing the
matter stat ed that the presence of the eye -witnesses are not denied by the accused persons.
The recovery was made only in consequence of disclosure made by accused Mehran, while
the place of recovery was only in his knowledge, thus reliance can be made. Further, ther e are
no contradictions in statements of the witnesses, while no suggestion was put to the witnesses
about sending of arms to the expert, as such this point cannot be agitated at this stage. He
contended that conviction be upheld.
In present case the off ence of murder of Abdul Rasheed is alleged to have been committed by
accused Mehran by firing at him with Kalashnikov, while co -accused Shadi Khan in
furtherance of common intention driven accused Mehran on his motorcycle to place of
occurrence and make hi s escape good after commission of the offence. Charge to the same
effect were framed on 3 -5-2005 against appellant Shadi Khan and on 11 -11-2005 against
appellant Mehran. Both of them pleaded not guilty and claimed trial. The charge is framed to
the extent of offence punishable under section 302, P.P.C. for Qatl -e-amd and under section
34, P.P.C. for act done in furtherance of common intention. On completion of trial, the
learned trial court comes to the conclusion that accused Mehran (appellant No.2) is the
person, who committed murder of victim Abdul Rasheed by making firing at him with
Kalashnikov, while accused Shadi Khan at that time facilitate the other accused person, as he
brought him on his motorcycle and also took him on the same in order to escape from the
site, after commission of the offence. Keeping in view the nature of evidence the trial Court
awarded death penalty to accused' Mehran, while life imprisonment to accused Shadi Khan.
Direction was also made for payment of compensation of Rs.50,000 to legal heirs by each of
the accused persons. Reference is also received by this court for confirmation of sentence of
death, which is also decided through this order.
Complainant Zulfiqar Ali appeared as PM. 1 and got recorded his statement; he specif ically
nominated both the appellants in commission of the offence. According to his statement
he alone visited the house of his father at 12 -00 noon on 22 -1-2005 on occasion of Eid,
while Abdul Ghaffar P.W.3 and Rahim Bakhsh P.W.4, who were cousins of his father,
visited there in his presence thereafter. P.W.3 Abdul Ghaffar while recording his
statement stated that Abdul Rasheed, victim was his cousin and killed on second day of
Eid three years ago, while he along with Rahim Bakhsh P.W.4 went to meet Abdul
Rasheed at Goth Abdul Nabi on motorcycle. P.W.4 Rahim Bakhsh in his statement also
confirmed the statement of P.W.3. He also stated that he went along with Abdul Ghaffar
on motorcycle to offer Eid Greetings to him, when they reached there Zulfiqar, son of
victim, was already present. But contrary to this statement the complainant P.W. while
reporting the incident deposed that he along with his cousins namely Abdul Ghaffar and
Rahim Bakhsh visited his father at occasion of Eid. In cross -examination P.W. 1
admitted the same. Apart from this contradiction about reaching of them at site of
incident they all confirmed presence of each other at the site, when incident occurred.
According to P.W.1 he reached at the site at 10 -00 a.m. while P.W.3 and P.W.4 reached
at the site after half an hour. But P.W.3 while recording his statement deposed that they
departed from their village at about 7 -30 a.m. while reached at house of victim at about
8-00 or 9 -00 a.m. after lapse of two or two and a half hours from their arriva l the
incident occurred. But contrary to the same P.W.4, stated that they left their village at 7 -
00 a.m. while reached at place of occurrence within 30 minutes and the incident took
place after ten minutes of their arrival. All the three witnesses contrad icted with each
other on time of arrival at place of occurrence and also time of incident, which is as per
F.I.R. 12 -00 noon. In case reliance is made on evidence of P.W.4 the incident occurred
at 7-45 a.m. or 8 -00 a.m. While in case of P.W.3 the incident could have been occurred
at 10 -00 or 11 -00 a.m. But as per F.I.R. the time of incident is entered as 12:00 noon.
There is clear contradiction to this extent in statement of eye -witnesses.
Furthermore, as per P.W. at time of firing made by accused Mehran they saved
themselves while going into the rooms. But during course of cross -examination he
stated that they took refuge behind the pillars of veranda. As per P.W.3 they concealed
themselves behind pillars and rooms. But as per P.W.4 they saved their lives while
taking refuge in room. They contradict each other on this point also. P.W. Zulfiqar Ali
being the complainant stated that he went to police station for reporting the matter, after
15 to 20 minutes of occurrence he departed for police station. But as per P.W.3 Abdul
Ghaffar, Zulfiqar left for thana after 30/45 minutes of the incident; Contrary to both of
them P.W.4 Rahim Bakhsh stated that Zulfiqar left for Thana soon after occurrence of
the incident. In addition according to P.W. he went to Police St ation on motorcycle of
Abdul Ghaffar. But as per P.W.4 the complainant went on his own motorcycle. In
addition these eye -witnesses also contradicts each other on certain other points also. As
per P.W. 1 the police reached at the site at 4 -00 p.m. along wit h him, while the corpse
was lying on the cot, which was placed in veranda. Contrary to the same P.W.3 deposed
that police reached at the place of occurrence at about 12 -00 o'clock noon, while corpse
was 'lying on the same place of occurrence, it was not re moved. According to P.W.4,
Zulfiqar along with police came back at place of occurrence after two hours; he did not
disclose the position of corpse. As per P.W.6 Punhal Khan Head Constable they along
with complainant reached at the site at 2 -00 p.m. the dea d body was lying on earth.
While P.W.8 Sikandar Hayat, the first investigation officer, stated that they left Thana
at 1-00 p.m. and reached at place of occurrence at 2 -10 p.m. He also deposed that
corpse was lying in courtyard. The site map Exh.P/8 -A also disclosed the position of
dead body at place of occurrence near the door. There is clear contradiction in
statements of complainant and the remaining witnesses. It is also to be noted that
though the eye -witnesses deposed that they were sitting in veranda on cots, but in site
map Exh.P/8 -A existence of veranda is not shown. The time of arrival of police at the
site of occurrence and position of corpse is also not in conformity with each other. It is
further to be noted that as per F.I.R. Exh. P/1-A the tim e of report is 1 -30 'p.m. but as
per Investigation Officer P.W.8 they left Thana at 1 -00 p.m. meaning thereby they left
the Thana and proceeded towards site of incident even before reporting of the matter. In
addition the witnesses also differ about presen ce of people of locality at the site after
occurrence of incident. P.W. stated that 5/6 persons reached at site after 5/6 minutes
after hearing the noise of firing. While as per P.W.3 nearly 15 to 20 people reached at
place of occurrence after one and a ha lf hours of the occurrence, as such when police
reached at the site people of vicinity were present there. But the other eye -witness
P.W.4 during course of cross -examination deposed that when police reached at the site
except him and Abdul Ghaffar P.W.3, n o one was present at site. P.W.6 Punhal Khan
'Head Constable stated that only 2/3 persons were present when they reached at site.
Investigating Officer P.W.8 also deposed that at site except complainant and two eye -
witnesses no one was present.
It is fur ther case of prosecution that accused Mehran during custody of police made
disclosure, whereupon recovery of crime weapon was made on 17 -9-2005. P.W.9
Soomer Khan SI is the officer before whom disclosure was made by accused
Mehran/present appellant No.2. A s per him on 17 -9-2005 the accused discloses that he
can recover the Kalashnikov used in murder of Abdul Rasheed. Disclosure memo. Was
prepared, whereafter at 2:30 p.m. they proceeded towards Goth Noor Pur, while accused
Mehran from residential room of hou se recovered. Kalashnikov, on unloading three live
cartridges were recovered, which were taken in custody. The articles were afterwards sent to
Expert for opinion. But during course of cross -examination he deposed that for purpose of
recovery they left Tha na at 12:00 noon. While at time of recovery men, women and children
were present in the house from where recovery was, made, which consists of 3/4 rooms.
P.W.5 Ali Gohar is the witness of disclosure as well as of recovery effected thereon.
According to him accused Mehran made disclosure that he can get recover the Kalashnikov
used in commission of the offence of murder of Abdul Rasheed. Disclosure memo. Exh.P/5 -
A prepared in his presence, which was signed by him, whereafter, accused was taken to his
house a t Goth Noor Pur from where he recovered a Kalashnikov with 20 live cartridges from
beddings, which was taken into custody and recovery memo. Exh.P/5 -B was prepared. But
contrary to P.W.9, this witness deposed time of disclosure as 1 -00/1-30 p.m. while they
reached place of recovery at 2 -30 p.m. and remained there for two and a half or three hours.
Though both the witnesses claimed to be eye -witnesses of recovery of crime -weapon
recovered on pointation made by accused Mehran, but as per P.W.9 along with Kala shnikov
three live cartridges were recovered. But contrary to the same P.W.5 deposed that 20 live
cartridges were recovered along with the Kalashnikov. The contradiction is apparent.
The recovered Kalashnikov and the 16 empties taken into custody from th e site were sent to
Expert for examination. The Report of Examination is present on record as Exh.P/9 -4, which
bears date of examination as 27 -1-2006 and date of report as 7 -3-2006. Further mentioned
therein that arms were sent for examination on 22 -11-2005. As per contents of this report
crime empties marked as C -1 to. C -7 are fired from the SMG Rifle in question, while the
remaining empties marked as C8 to C16 were not fired from the mentioned rifle. No
explanation is given by the prosecution in same resp ect, as per case of prosecution the firing
was made from a Kalashnikov which caused death of Abdul Rasheed. Now two weapons are
alleged to be involved in commission of the offence. Nor there is any assertion that SMG rifle
is used in commission of the offe nce instead of Kalashnikov.
Though no specific defence has been taken by the appellants except that there is existence of
some dispute in respect of property between the complainant party and accused Shadi Khan,
as suggestions were put to the prosecution witnesses. But as far as appellant Mehran is
concerned, as per F.I.R. the victim debarred accused Mehran from visiting his (victim's)
house due to this enmity he killed the victim. No evidence to this effect has come on record.
Even the complainant while recording his statement, only stated that Abdul Nabi told him on
day of incident that victim asked Mehran not to visit his house. This Abdul Nabi, who is also
resident of same house, never appeared, nor recorded his statement either before the court or
before the investigating authority. This sort of statement is not admissible as the person
having direct knowledge never came forward.
As far as accused/appellant No.1 Shadi Khan is concerned, though the complainant and eye -
witnesses deposed about his prese nce outside the place of occurrence boarding on
motorcycle, while asserted that he facilitated accused Mehran to escape from the site. No
further evidence to his extent has brought on record. As per prosecution case the complainant
and eye -witnesses saw ac cused Shadi Khan, while peeping: above the eastern wall, who was
boarding on motorcycle and after commission of offence left the site along with co -accused.
According to them the height of said wall is nearly four feet. It may be so, but as per
prosecution own version on start of firing they either went into the room or hide themselves
behind pillars of veranda to save themselves, while they came out when accused Mehran
turned and proceeded. It seems some how difficult to recognize a person in such a manner
from such a distance in such sort of condition. As per eye -witnesses they remained at place of
refuge for two minutes and thereafter, came out and saw accused Shadi Khan taking accused
Mehran on motorcycle. There is no other evidence against accused Shadi Khan except the
same. Keeping in view the site map Exh.P/8 -A it seems difficult to have a glance of accused
Shadi Khan standing outside with motorcycle from the room or alleged veranda.
Keeping in view the above mentioned facts though both the appellant s are specifically
nominated in F.I.R. by the complainant, while both the eye -witnesses also fully implicated
the accused/appellants in commission of the offence, there is also no contradiction in
identification of both the accused persons, as such the tri al Court, while deciding the case
comes to the conclusion that the direct ocular evidence of complainant has been fully
supported and corroborated by the direct ocular testimony of P.W.3 and P.W.4, while the
incident occurred at 1 -00 p.m. which was reporte d at 1 -30 p.m. thus F.I.R. was promptly
registered without any delay, thus the possibility of lodging F.I.R. with deliberation or
consultation is ruled out. The medical and circumstantial evidence also supported the case of
the prosecution. Further Investi gating Officer also, collected 16 crime empties which
corroborate the version of ocular witnesses, crime weapon was also recovered. The trial
Court also relied on report of chemical Examiner in regard to presence of human blood on
clothes of deceased and e arth collected from the spot. The trial Court on basis of these
observations comes to the conclusion that both the accused persons committed murder
of victim Abdul Rasheed by Kalashnikov with common intention.
The learned trial Court while dilating upon the evidence brought on record by the
prosecution simply arrived to the conclusion that incident occurred at 1 -00 p.m. which
was reported at 1 -30 p.m. The learned trial Court failed to consider the contradictions,
as mentioned in preceding paras, appeared in statements of P.W. the complainant,
P.W.3 and P.W.4 the eye -witnesses and P.W.5, P.W.8 and P.W.9 the official witnesses
of recovery memo disclosure memo., site map and others. All the three eye -witnesses
completely differ in time when they reached at pl ace of occurrence and also about time
of occurrence of the incident. None of them showed the time of incident at 1 -00 p.m.
Rather as per P. W.1. incident occurred at 12 -00 noon, while as per P.W.4 he reached at
site at 8 -00 or 9 -00 a.m. while incident occu rred after two or 2 -1/2 hours, this means the
time of incident was probably 10 -00 to 11 -30 a.m. But as per third eye -witness P.W.4
Rahim Bakhsh he left his village at 7 -00 a.m. reached at place of occurrence within 30
minutes, while incident occurred after ten minutes of his arrival, this means the incident
occurred probably at 7 -40 a.m. None of the eye -witnesses corroborated each other on
this point. The trial Court failed to appreciate' this aspect of the case. The trial Court
further failed to take into consideration the position of the corpse at place of incident,
the manner the complainant and eye -witness took refuge to save themselves at time of
firing, even when in sketch of site existence of veranda and pillars are not shown. The
time of arrival of p olice personnel at the spot and also presence of people of locality at
the site. It is also to be noted that the house in which murder took place is under
inhabitation of victim and his family, while his brother in law is also residing therein,
but none of the inmates of the house showed their presence, nor come forward to record
their statements. Nor even the Investigating Officer tried to involve them in
investigation, nor tried to make them witness. Rather he did not show their presence or
even their abs ence from the house at time of incident, being the natural witnesses; no
probe is made from them. This act shows the incompetency of the Investigating Officer.
The complainant and eye -witnesses are not residents of the house, they asserted to visit
the vic tim on occasion of Eid, they are the chance witnesses, as such their evidence was
to be dealt with care and caution. On all these points the prosecution g witnesses differ
with each other. These contradictions are not minor in nature, rather material which
were required to be considered by the trial Court, which has not been done.
In addition the trial Court relied on Report of Chemical Examiner in respect of blood
stained clothes and mud, though aspect of unnatural death of victim is an established
fact, therefore, the Report of Chemical Examiner is not of much importance in the
circumstances. The trial Court failed to consider the Report of Examination of crime
empties and recovered crime weapon. As discussed in preceding paras that as per
Report 16 empt ies were sent for examination, out of which empties marked as C -1 to C -
7 are found to be fired from the recovered rifle, while empties marked as C -8 to C -16
are not fired from same rifle, which was allegedly recovered on pointation of accused
Mehran. It is no where case of the prosecution that firing was made from two different
Kalashnikovs or rifles, nor it is their case that SMG rifle is used instead of Kalashnikov.
Nothing has come on record from side of prosecution. explaining this aspect of the case.
The delay in sending of recovered empties and Kallashnikov for examination is also
apparent as mentioned above. There is no explanation to this extent also, which also
created doubt. The trial Court failed to consider the same, rather did not touch or
discu ss the Report of Examination in the judgment, which is a material piece of
evidence.
As far as fact of recovery of Kalashnikov is concerned, it is also not free from
contradictions. P.W.5 and P.W.9 are the relevant witnesses. P.W.5 is witness of memo
of disclosure and also of memo. of recovery of Kalashnikov. While P.W.9 is the
Investigating Officer in whose presence disclosure was made, whereupon recovery was
effected. Both the witnesses differ on fact about number of live cartridges recovered. As
per P. W.5 and also as per recovery memo. 20 live cartridges were recovered. But as per
P.W.9 only three live cartridges were recovered. In addition both the witnesses also
differ on time when recovery was effected. The contradictions are also material in
nature which were required to be considered, but the trial Court failed to do so. These
points are not even mentioned in the judgment by the trial Court, which is not proper. It
is also to be considered that as per prosecution the recovery was effected from house of
appellant Mehran. According to P.W.9 men, women and children were present in the
said house at the time of recovery, but the Investigating Officer not even tried to
associate them, nor record their statements or even made interrogation from them.
In view of above discussion the evidence produced by .the prosecution is full of
contradictions. The trial Court while deciding the case did not consider any 'of the
same, nor even discussed these points in the judgment, rather given findings simply
ignoring the same which is neither just nor proper. On basis of such evidence no
conviction can be awarded to the accused persons. Because in presence of such
contradictions reasonable doubt appears, the benefit of which must go in favour of the
accused persons. Th e trial Court has failed to appreciate the evidence and material
present on record properly and arrived to a decision, which is not sustainable under law
and norms of justice on grounds mentioned hereinabove, which is liable to be set aside.
Therefore, the appeal is hereby accepted, the impugned judgment dated 26 -12-2008 of
Session Judge Dera Allah Yar is hereby set aside. Thus in the circumstances and facts
as discussed above while giving benefit of doubt appellants Shadi Khan son of Qaisar
and Mehran son of Jaffar are acquitted of the charge under sections .302 and 34, P.P.C.
in case pertaining to F.I.R. No.14 of 2005 Police Station Dera Allah Yar District Jaffar
Abad. They be acquitted at once if not required in any other case.
The Murder Reference No. (S) 19 of 2008 is also replied in negative due to the reasons
as discussed hereinabove.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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