Cr.A No.159-B of 2017 with Murder Reference No.09-B of 2017
Peshawar High Court, Bannu Bench
The appellant was appealing his death sentence which was awarded following a case, the facts of which are as follows. A complaint was made by Abdul Wahab, pursuant to the death of a man who had been killed by another by a gun shot. He made a statement saying that the convict, Noor Alam, rode into the main bazaar in Karak, took multiple shots at the victim, who succumbed to these wounds on his way to the hospital. This account was verified by eye witnesses in the bazaar, many of whom gave statements to the police. The house of the accused was searched and a gun along with clothes stained with the victim’s blood were recovered, following which he was arrested. The accused admitted to this incident and his acts while under interrogation and even took the police to the crime scene and pointed out specific details, which matched those provided by eye witnesses. As he was presented before a magistrate, the accused denied his confession to the police and plead not guilty. The case was therefore taken tried in court.
The prosecution produced 11 witnesses but during the trial, the accused maintained his plea of not-guilty, refused to produce evidence supporting his stance and refused to be cross examined under oath as required by sec. 342(2) CrPC. He was nonetheless convicted and sentenced to death. It was this decision for which he stood as an appellant in the present case.
The convict argued that the account the prosecution was relying on was false as, although it had many witness, no one besides Abdul Wahab testified as an eye witness. While the appellant did surrender to the police and a pistol was recovered from his house, the remainder of the story had been constructed by the prosecution while conspiring with the witness. He further stated that the prosecution had failed to establish this pistol to be the murder weapon as despite having been shot at close range, there were no charring marks found on the body of the victim. The complainant was not present at the crime scene as he had been unable to prove his presence and the prosecution in totality had failed to establish the case beyond reasonable doubt. The appellant therefore argued for the sentence awarded to him to be extinguished.
The Attorney General, countering these arguments stated that, the convict was the sole assailant and was arrested following the day of the occurrence, along with the murder weapon for which a separate case was registered, where the convict was again convicted. The site plan, recoveries, medical evidence and F.S.L reports corroborated the statements of the witnesses and all of this could not be disrupted by the prosecution’s cross examination. Since the previous court examined the evidence and gave a conclusive decision based on facts backed by evidence, its decision must not be interfered with.
The court in the current appeal perused the evidence and discovered that Abdul Wahab saw the murder of the victim occur in the main bazaar, with other individuals present, but the investigation officer did not record a single statement by an independent witness and the prosecution was unable to produce a single independent witness who could testify before the court. The court also noted that the sole witness was the complainant, Abdul Wahab, also happened to be the brother of the victim, due to which he was to be termed as an ‘interested witness’. Relying on Gul Muhammad Vs State and another” (PLJ 2014 Cr.C (Peshawar)334 (DB), the court stated that since he was the only witness, strong corroboration of his testimony was required to prove that the accused is guilty. Discrepancies were discovered in the plaintiff’s primary statement (where the victim was dismounting his motorcycle and the convict, who was already present in the bazaar, shot him) from what he stated while being cross examined (he was sitting in front of his brother’s shop and his brother, while dismounting his motorcycle, was shot 2-3 times by the convict and was hit by the first shot). Further contradicting this was the site plan made by the investigation officer which noted that the accused was on his motorcycle from which he fell down, once he was shot. Also, since the first information report (FIR) was recorded after compiling the injury sheet, inquest report and Post mortem report, the FIR then becomes a ‘suspect document’ as it is not giving a spontaneous account of the occurrence (Muhammad Wasif Khan and others Vs The State and others” (2011 PCr.L J 470 Lahore) & Iftikhar Hussain and others Vs the State” (2004 SCMR 1185)). The site plan showed that the victim was shot at a distance of less than 3 feet and it is established medical jurisprudence that such short distance is bound to leave charring remarks on the victim’s body but no such marks were discovered in the post mortem examination which leads to the inference that the complainant was not present at the crime scene.
Referring to the discrepancy in the complainant’s statements, the court stated that the number of shots fired was mentioned in the cross examination as being 2 or 3 but no empty shell casings of any bullet were discovered from the crime scene. The gun which was discovered at the convict’s house was processed by the FSL and found to be in working condition but this was not conclusive of the fact that the same gun had been used to shoot the victim and in the absence of the convict’s confession, this gun could not be concluded to be the murder weapon. Therefore, conclusions made on the basis of this gun were to be disregarded.
The confession by the accused of his guilt was not recorded in front of a magistrate and was only made in front of the police. This was held as inadmissible according to art. 38 of the Qanun-e-Shahadat 1984 (Riasat Ali and another Vs The State and others” (2015 PCr.LJ 995 Lahore).
The motive for the murder was the fact that the victim had lent his motorcycle to the convict and upon its recovery, the convict was annoyed and thus decided to murder the victim. In connection to this motive the court stated that since “the motive was with younger brother of the deceased and not with the deceased or eye-witness/complainant” there was no motive for the convict to shoot the victim and if he had in fact shot the victim, he would have shot the complainant too, which did not happen. The prosecution was therefore, held to have failed to establish motive or the presence of an eye witness at the crime scene (Muhamamd Ali Vs the State” (2017 SCMR 1468)). Additional evidentiary gaps termed to be “dents in the prosecution’s case” included absence of bullet shell casings and blood stained earth at the crime scene, absence of bullet tears on the blood stained clothes of the victim and the absence of the motorcycle due to which the murder occurred in the first place (Muhammad Ali Vs The State” (2017 SCMR 1468)). In the absence of direct or circumstantial evidence, basing a charge of death on the sole statement of the complainant (which was not corroborated by other witnesses or by other materials on record) was deemed to be unwarranted by the court. Since the prosecution was unable to prove its case beyond a shadow of doubt, the court overturned the conviction of the convict and acquitted him of all charges.