2024 CCJ 14

Other citations: 2024 PCrLJ 105

[Peshawar High Court]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

Said Bahadar—Appellant

versus

Amin-ur-Rehman and another—Respondents

Criminal Appeal No. 208-M of 2019 and Criminal Revision No. 43-M of 2019 decided on 3^rd June, 2021.

HEADNOTE

Penal Code (XLV of 1860) —

— S. 302(b) — Qatl-i-amd — Appreciation of evidence — Benefit of doubt — Delayed FIR — Contradictory statements — Scope — In the case against the accused, it had been alleged by the prosecution that the appellant threw acid on victim, resulting in severe burns to his face, lips, nose, and neck, causing him to lose both eyes and ultimately leading to his death almost a year later — The FIR against the accused was registered two months and five days after the incident, without any explanation from the prosecution — This delay raised questions regarding the certainty of the accused person’s involvement — Additionally, the relationship between the accused and the deceased being cousins further complicated the matter — Further scrutiny revealed discrepancies in the statements recorded by the police — The alleged statement of the deceased under section 161, Cr.P.C. was deemed questionable, as it was recorded in a different province without proper authorization, and no effort was made to corroborate it with medical evidence — The prosecution relied on an alleged eye-witness, whose testimony lacked credibility due to inconsistencies and lack of corroboration — Moreover, the recovery of incriminating articles from the scene was questionable, suggesting possible tampering with evidence — An additional Daily Diary entry attributed to the accused contradicted the timeline of events, casting doubt on the prosecution’s narrative — Overall, the prosecution failed to provide convincing evidence against the accused, leading to the reversal of his conviction and acquittal of all charges. [Several Paras.]

Jehan Dastagir Yousafzai for Appellant/Convict (in Criminal A. No. 208-M of 2019).

Sohail Sultan, Assistant A.G. for the State (in Criminal A. No.208-M and Criminal Revision No. 43-M of 2019).

Zia-ur-Rehman Tajik for the Complainant (in Criminal A. No.208-M of 2019).

Zia-ur-Rehman Tajik for the Petitioner (in Criminal Revision No. 43-M of 2019).

Jehan Dastagir Yousafzai for Respondent/Convict (in Criminal Revision No. 43-M of 2019).

Date of hearing: 27^th May, 2021.

JUDGMENT

Ishtiaq Ibrahim, J:—Through this judgment we intend to decide the instant appeal as well as the connected Cr. R. No. 43-M/2019 as both these cases are emanating from the same judgment dated 24.04.2019 handed down by learned Sessions Judge/Judge Model Court, Dir Lower at Timergara in case FIR No. 268 dated 02.03.2017 under section 302, P.P.C. registered at P.S Khali, District Dir Lower whereby the present appellant was convicted under section 302(b), P.P.C. and sentenced to undergo imprisonment for life with fine of Rs.500,000/- payable to LRs of the deceased.

2.           Complainant Saeed-ur-Rehman (PW-9) who was present with his injured Brother Ameen-ur-Rehman in emergency ward of District Hospital Timergara on 25.12.2016 informed the police at 21:00 hours that his injured brother, who was running a general store in Rabat Bazar, was going home after closing the shop when reached near the house of Fateh Muhammad at Kotkay, some unknown accused threw poisonous thing on him due to which his forehead, face and throat got burnt.

3.           Report of the complainant was recorded in shape of Daily Diary No. 39 dated 25.12.2016. The injured was medically examined by Dr. Muhammad Saleem (PW-10) whose observations in shape of medico- legal report Ex. PW-10/1 are as under:

Date and time of arrival in emergency: 25.12.2016 at 08:40 hours.

Patient was brought to emergency by civilian/villager.

On examination:

–      Acid burns on whole face, lips both ears external, tongue and upper part of esophagus, eyes.

–      Inability to breathe.

–      In state of shock.

–      ENT consultant call emergency. Naso tracial tube passed. Patient is referred to LRH Peshawar.

–      Full thickness acid burn to face, nose, ears, eye, intra oral, intra nasal acid burn injury.

–      All documents of LRH Peshawar/Wah Cantt. and Plastic Surgeon attached along with photographs (12) and document number in 5.

Opinion:

Acid burns on face, ears, nose, eye, neck, oral cavity and nasal cavity. He has blind on both eyes. Lost nose, not able to eat. Grievous.

4.           On 02.03.2017, the contents of Daily Diary No 39 referred to above were incorporated in Murasila (Ex.PA/1) on the basis whereof formal FIR was registered against the present appellant on the same day wherein he was initially charged under sections 324, 334, 336, 337-D, P.P.C. It is noteworthy that the injured had died later on 14.01.2018, after almost one year of the occurrence, therefore, section 324, P.P.C. was replaced with section 302, P.P.C. during the trial proceedings.

5.           The appellant was arrested on the very date of registration of FIR i.e. 02.03.2017. Complete challan was put in Court for his trial after completion of investigation. On his denial to the formal charge, prosecution examined as many as nineteen (19) PWs in support of its case and closed the evidence. On examination of the appellant under section 342, Cr.P.C. he professed innocence and stated to have been charged in a false case, however, he neither recorded his own statement on oath nor produced any witness in his defence. On conclusion of trial, the learned trial court through the impugned judgment recorded his conviction under section 302(b), P.P.C. and sentenced him to undergo life imprisonment with fine of Rs.500,000/- payable to LRs of the deceased, hence, this appeal and the connected revision petition.

6.           We have heard the arguments of learned counsel for the parties including the learned Assistant A.G. for State and gone through the record with their able assistance.

7.           It is the case of prosecution against the present appellant that he threw acid on Ameen-ur-Rehman on 25.12.2016 at 20:00 hours near the house of one Fateh Muhammad at village Kotkay as result whereof his face, lips, nose and neck were burnt besides he also lost both his eyes in the same incident and ultimately died because of the said injuries after almost one year of the occurrence.

8.           Admittedly, FIR against the present appellant has been registered after two months and five days of the occurrence for which no explanation has been offered by prosecution. The delay in registration of FIR could be interpreted in so many ways and the same goes to roots of the prosecution case in the circumstances for the reason that once the appellant was charged for a cognizable and heinous offence of throwing acid on the deceased, then who had precluded the prosecution for initiation of further proceedings in the case soon after nomination of the appellant by deceased then injured in his statement under section 161, Cr.P.C, if it is presumed to have been recorded on third day of the occurrence. It is also a matter of record that appellant is related to deceased being cousins inter se. He had also lodged a report vide Daily Diary No. 56 dated 26.12.2016 (Ex. PW-17/2) wherein he had also charged unknown persons for throwing acid on him. How it is possible that police and complainant party were unaware of the fact that appellant had also faced incident of the same nature nor it was possible that complainant and police had no knowledge of his report Ex. PW-17/2. The reason for delayed registration of FIR against him appears to be that the complainant side was also not sure regarding culpability of the appellant otherwise there was no justification for non-initiation of proceedings as per law against him. Thus, the possible conclusion which could be drawn from the above facts is that neither the deceased then injured nor the complainant and investigating agency were sure regarding involvement of the appellant in commission of the offence otherwise they would have initiated proceedings against the appellant soon after his nomination in the present case. Thus, delayed registration of FIR and other facts or record clearly suggest enroping of the present appellant by complainant after deliberation and consultation. In the case titled “The State through Advocate General NWFP Peshawar v. Shah Jehan” reported as PLD 2003 SC 70, the august Supreme Court of Pakistan took notice of unexplained delay even of three hours and observed that:

The delay in lodging the FIR has not been explained plausibly, which shows that it was lodged after preliminary inquiry/investigation, deliberation and consultation, and the complainant (P.W.8) was called for from his village Dinpur, which was at a distance of about three miles from the house of the respondent.

9.           Another aspect of the case is that report of complainant Saeed- ur-Rehman (PW-9) was recorded in shape of Daily Diary No. 39 dated 25.12.2016 wherein he charged some unknown accused for the offence. As per prosecution, Amant Gul S.I (PW-5) had also recorded statement under section 161, Cr.P.C. of the deceased then injured on the third day of the occurrence at POFs Hospital, Wah Cantt. in presence of Dr. Nadeem Pasha wherein he charged the present appellant for defacing him through acid but on the other hand the FIR was registered with delay of more than two months. It appears that registration of the FIR was delayed apparently for two possible reasons, firstly that the deceased then injured had not at all made his statement under section 161, Cr.P.C. as alleged by prosecution and the second possible reason is that though the injured had recorded the statement but the investigating agency, as discussed above, was not sure with regard to culpability of the appellant otherwise the FIR should have been registered on the date when statement under section 161, Cr.P.C. was recorded and on the same day the appellant should have been arrested.

The possibility that deceased had not recorded at all his statement under section 161, Cr.P.C. on the third day of the occurrence can be confirmed from self-contradictory statement of the complainant as PW-9 narrating therein that on arrival to Peshawar with his injured brother, they had stayed in LRH for some time and thereafter the injured was shifted to POFs Hospital Wah Cant on the same night. He admitted in his cross-examination that during all this time his brother never talked to him as he was unconscious but on the other hand narrated in the same breath that he was informed by his injured brother on the second day of the occurrence that the appellant had thrown acid on him. As per record statement of the deceased then injured under section 161, Cr.P.C. was recorded by Amant Gul S.I (PW-5) allegedly at POFs Hospital, Wah Cantt which is situated in another province but the police officer, as per his own admission, was neither investigating officer in the case nor he had obtained any permission from his high ups for his official visit to the province of Punjab. Thus, the proceedings conducted by Amanat Gul S.I (PW-5) were not only unauthorized but haste of police in following the injured to Punjab for the purpose of recording his statement also raises the eyebrow. Thus, the mode and manner of recording statement of the deceased then injured by police reaction its genuineness. The record also transpires that, after official correspondence with learned Sessions Judge, Peshawar through the learned Sessions Judge, Dir Lower, the IO had visited the hospital at Peshawar for recording statement of the injured under section 164, Cr.P.C. but as per DD No. 57 dated 22.03.2017 (Page 443) followed by statement of the complainant before the IO on the same date in hospital, throat of the injured by that time was severely injured, therefore, recording of his statement under section 164, Cr.P.C. was postponed. When the injured was unable to record his statement because of his injured throat after almost three months of the occurrence, how he could record his statement under section 161, Cr.P.C. on the very third day of the occurrence. Moreso, Dr. Nadeem Pasha, in whose presence statement of the injured had allegedly been recorded, was not produced before the Court at trial stage for verification of the said statement from which an adverse inference can be drawn under Article 129(g) of the Qanun-e-Shahadat Order, 1984 that had the prosecution examined the said doctor before the Court he would have not supported the prosecution version. The above facts on record lead us to the conclusion that deceased then injured had not recorded any statement before police on third day of the occurrence.

10.         Complainant is admittedly not an eye-witness of the occurrence, however, prosecution has examined Hamid Zada (PW-13) who has claimed his presence on the spot at the time when the deceased was burnt, with acid. He admitted in his cross-examination that the occurrence took place at nocturnal hours by adding that there were electricity lights in the surrounding but the I.O has not taken into possession any bulb from the spot to support the above statement of the witness. Thus, in absence of reliable evidence to prove the source of light, identification of the assailant by this PW at night time is a matter of utmost importance and we cannot believe that the PW had identified the assailant by ascertaining that no one else but the present appellant had thrown acid on the deceased. Reliance in this regard is placed on Muhammad Arshad v. The State (PLD 1995 SC 475). The principle laid down in the said judgment is as follows:

The principle to be extracted from the decided case thus is that the evidence of visual identification is one of the categories of ‘suspect evidence’ and that ordinarily it is not safe to convict on the basis of such evidence without a corroboration. Indeed, in exceptional circumstances, that is, where the evidence of visual identification is of exceptionally good quality, such as, where the offender was known to the witness, there was sufficient light, the witness had had an unobstructed view of the offender and there was a dialogue between the witness and the offender, the evidence may be acted upon.

The alleged eye-witness also stated that deceased had raised hue and cry soon after the occurrence saying that Kog Khulay (the present appellant) had thrown poisonous liquid on him but strangely he did not disclose this fact to complainant who had shortly followed his injured brother and other people including this PW to hospital. The PW is cousin of the complainant but he did not accompany him along with the deceased then injured from Timergara hospital to LRH Peshawar though his cousin (deceased) by that time was seriously injured. The said unusual conduct of the eye-witness castes a doubt on his presence with the deceased at the time of occurrence. It is also a matter on record that on one hand the eye-witness has tried to show vigilance towards the matter by claiming that on his return from hospital along with Wasim, brother of the complainant, he had secured the mug/bowl allegedly used by appellant for throwing acid on deceased as well as the acid burnt blanket worn by him at the time of occurrence but on the other hand he exhibited irresponsible attitude by keeping mum and did not disclose the name of assailant to complainant, which does not stand to reason. In addition to above, the eye-witness stated that after closing his shop he was proceeding to his house in the company of deceased then injured and thereafter the occurrence took place but the injured in his statement under section 164, Cr.P.C., which was recorded after more than four months of the occurrence, has neither stated that he was accompanied by the eye-witness nor cited his name as eye-witness of the occurrence and simply stated that وقوعہ ہذا شاید کسی نے دیکھا ہوگا. Had the eye-witness accompanied the deceased on the night of occurrence, he and complainant in their statements and report would have mentioned his name as eye-witness of the occurrence, however, they have not done so meaning thereby that this PW was afterwards introduced as eye-witness of the occurrence. Thus, the natural conclusion which can be drawn from the above stated scenario would be that the occurrence was un-witnessed. Reference is made to the judgment of this Court in the case of “Niaz Muhammad alias Niaz v. The State” 1996 PCr.LJ 394 wherein it was observed that:

14. Additionally and more importantly the omission of the name of Fazal Maula in the FIR casts a serious doubt on his present at the scene of occurrence. In Ghulam Muhammad and others v The State PLD 1975 SC 588 and Mamoon and another v. The State PLD 1962 (W.P.) Kar. 800 it has been held that the testimony of an eye-witness not been named in the is to be ruled out of consideration. This rule is to be applied with full force in the present case as the complainant had admitted at the trial that he had met Fazal Maula before going to the police station for lodging the report.

Not only overall conduct of the alleged eye-witness in the serious situation of the occurrence was unusual but his statement also does not inspire confidence, therefore, his testimony could not be relied upon in support of the prosecution case.

11.         As regards corroborative evidence in shape of medical evidence and recovery of incriminating articles from the spot, medico legal evidence Dr. Muhammad Salim and other medical record of the deceased then injured clearly shows that deceased was burnt through acid then ultimately he died because of the said injuries though after almost one year of the occurrence but in absence of direct evidence, medical report by itself is not sufficient to connect the appellant with commission of offence. Similarly, recovery of poisoned sand/earth, bowl used for throwing acid on appellant and acid burnt blanket from the spot coupled with recovery of the acid gallon from which the shopkeeper PW-11 had allegedly sold acid to appellant, are also of no help to prosecution in view of its doubtful status. As per prosecution, complainant had secured the above mentioned incriminating articles from the spot on the night of occurrence and also took photographs of the spot on the same night. As per statement of the complainant, he came to the spot when his injured brother had already been shifted to hospital by his co-villagers, so, he soon after rushed to hospital and accompanied his injured brother to Peshawar and thereafter to Wah Cantt. He has admitted in his statement that he had remained with his brother for 38/40 days in hospital and never returned to his village during this period meaning thereby that he had got no chance either to collect the incriminating articles from the spot or take photographs thereof. Even otherwise, the above version of complainant does not appeal to prudent mind that his brother had been shifted to hospital by other people in serious condition and he in that critical situation would have engaged himself in collecting articles from the spot and taking photos thereof through his mobile phone. Complainant and alleged eye-witness have also not supported each other in this regard in their statements. According to complainant, he himself had collected and secured the sand/earth, bowl and piece of blanket worn by his deceased brother at the time of occurrence, however, the eye- witness has belied him by stating that the above mentioned articles were secured by him after they were lifted by Wasim from the spot. It is noteworthy that presence of Wasim on the spot as eye-witness of the occurrence has only been shown by alleged eye-witness Hamid Zada (PW-13) and complainant has not uttered even a single word regarding presence of Wasim at the scene of occurrence. Moreso, the I.O. has secured the poisonous earth/sand through recovery memo Ex. PW-4/2, the bowl used in the occurrence was secured through recovery memo Ex. PW-4/3, the blanket was taken into possession through recovery memo Ex. PW-4/4 whereas photographs thereof are Ex. PW-9/1 to Ex. PW-9/10. In photographs Ex. PW-9/2 to Ex. PW-9/3 a bottle in white plastic bag can also be seen clearly but the same was neither taken into possession nor the PWs have given any reference to the said bottle in their statements. Complainant and alleged eye-witness in their statements have mentioned only a mug/bowl wherein the appellant had allegedly brought acid and they have not clarified that the bottle (which appears to be a glass bottle) had been brought by assailant with himself. Strangely the complainant lifted other articles from the spot but took no notice of the bottle which lying on the spot with other articles. This situation clearly shows that the said recoveries were planted at belated stage after registration of FIR and for this purpose the acid was procured in the said bottle which was mistakenly not removed from the spot at the time of drawing the pictures. As regards recovery of plastic gallon from the shop of Irfan Ullah (PW-11) from which he had allegedly sold acid to appellant, the said can was taken into possession by one of the I.Os namely Amir Azam Khan (PW-4) vide recovery memo Ex. PW-4/17 on 04.03.2017 and by that time he had no authority to conduct further investigation in the case because according to his own statement, investigation had already been withdrawn from him on 03.03.2017. Shopkeeper namely Irfan Ullah (PW-11) also admitted in his cross-examination that the plastic can was used for mobil oil in which they had poured acid. Thus, the recoveries, being highly doubtful, lack the quality to corroborate the case of prosecution.

12.         Prosecution has also brought on record the alleged version of the present appellant in shape of Daily Diary No. 56 dated 26.12.2016 (Ex. PW-17/2) wherein he has statedly charged some unknown persons for throwing on him poisonous thing as result whereof his eyes, beard, face and right arm were burnt. The learned trial Court, in reference to above DD, has observed that appellant himself also got acid burns at the time of occurrence but these findings of the trial Court are contrary to available record because the present occurrence took place on 25.12.2016 at 20:00 hours as per DD No. 39 of the same date whereas the occurrence referred to in DD No. 56 attributed to appellant had taken place on 26.12.2016. Not only the appellant during his examination under section 342, Cr.P.C. has disowned the said report but he was never produced before the doctor for his medical examination to confirm his injuries as result of throwing acid. Prosecution has also failed to explain that why medical report of the appellant was not brought on record despite the fact that his injury sheet had been prepared as per contents of his report.

13.         Prosecution has badly failed to bring any evidence of confidence inspiring nature against the appellant rather prosecution case is replete with contradictions and inconsistencies of serious nature creating serious doubts in our mind with regard to involvement of the present appellant in commission of the offence, therefore, his conviction and sentence recorded by learned trial Court needs reversal. Resultantly, this appeal is allowed, the impugned judgment is set aside and appellant Said Bahadar is acquitted of the charge. He be released forthwith from jail if not required in any other case. The connected Cr. R. No. 43-M/2019 is dismissed for having become infructuous.

14.         Above are the reasons of our short order of the even date.

Order accordingly