Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: RAZA KHAN VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Mian Muhammad Ajmal, Jawaid Nawaz Khan Gandapur, Khalida Rachid Title: RAZA KHAN vs THE STATE Case No.: Criminal Appeal No,275 of 1994 Date of Judgment:1997-06-30 Reported As: 1998 P Cr. L J 530 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' JAWAID NAWAZ KHAN GANDAPUR, J.--- Accused Raza Khan son of GuI Said, aged about 50 years, resident of Nisatta, Tehsil and District, Charsadda, was put on trial in the Court of Additional Sessions Judge, Charsadda (Syed Afsar Shah) for having committed an offence punishable under section 302/324/34, P.P.C. 2. The allegations against the accused are that he, alongwith his co-accused, namely Murad and Zahoor (since absconding), while armed with lethal weapons and in furtherance of their common object, intentionally killed Hunar Khan son of Ajraman, by firing at him with pistols on 14-10-1991. The unfortunate incident took place on the main Charsadda Road, near Rahat Abad, ' situated at a distance of about 2 kilometres from Police Station Nisatta, Tehsil and District Charsadda. The Additional Sessions Judge, vide his judgment, recorded on 7-11-1994, found the appellant-accused guilty of killing Raza Khan and thus convicted him under section 302/34, P.P.C. And sentenced him to imprisonment for life and also to pay a fine of Rs,50,000 or in default thereof to undergo further S.I. For two years. It was further directed that the fine, if realized, shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The appellant-accused was also convicted under section 324/34, P.P.C. (on three counts) and sentenced to one year on each count with a fine of Rs,5,000 earh. The Additional Sessions Judge, however, extended the benefit of section 382-B, Cr.P.C. To the appellant-accused. Since the appellant-accused was present in custody, therefore, he was sent to jail to serve his sentence as stated above. According to the Additional Sessions Judge the appellant was not visited by the extreme penalty of death because of his age. 3. Perpetual warrants of arrest were issued against Murad and Zahoor, the absconding accused, and the District Magistrate, Charsadda was directed to register their names in the list of
---
## Page 2
proclaimed offenders kept in his office. It was further directed that the case property, if any, be kept in tact till the arrest/trial of the absconding accused. 4. To redress his grievance, the appellant (convicted accused) has now challenged the legality/vires of the conviction and sentence imposed upon him by filing this appeal. 5. On the other hand, Jan Wali Khan son of deceased Hunar Khan, resident of Rahat Abad, Tehsil and District Charsadda, has filed Criminal Revision No,117 of 1994 (Jan Wali Khan v. Raza Khan and others) for the enhancement of the sentence awarded to the appellant. He has prayed that under the circumstances of this case the punishment of imprisonment for life be enhanced to the normal sentence of death. 6. The prosecution, story, as disclosed in the F.I.R. (Exh.P.A.) stated briefly, is that on the eventful day (14-10-1991), complainant Muhammad (P.W.10) had gone to attend the Court of Assistant Commissioner, Charsadda in connection with a case registered under section 307, P.P.C. And pending trial in his Court. He was accompanied by his cousin, Hunar Khan (deceased) and two of his other relatives, i,e,, Muhammad Habib (not produced) and Fazal Amin (P.W.11). After attending the Court all the four boarded a bus to go to their homes. When the bus reached Rahat Abad it was stopped. Complainant Muhammad (P.W.10), Hunar Khan (deceased), Fazal Amin (P.W.11) and Muhammad Habib (not produced) deboarded the bus. The moment they got down from the bus, they noticed that the appellant (Raza Khan) and the absconding accused (Murad and Zahoor), duly armed with pistols, were standing there. On seeing the complainant party, the appellant and his associates started firing at them indiscriminately. It has been specifically alleged in the F.I.R. That it was the appellant who had killed Hunar Khan (deceased) by firing at him effectively with his pistol. Hunar Khan, it may be stated, died on the spot. The appellant-accused and his companions, after the killing decamped from the scene of occurrence. 7. The dead body of Hunar Khan, deceased was taken to Police Station Nisatta where complainant Muhammad (P.W.10) lodged the report (Exh.P.A.) in the abovementioned terms. He also stated in the report that the occurrence was not only witnessed by him but also by his companions, namely, Fazal Amin (P.W.11) and Muhammad Habib (not produced). 8. The motive for the commission of the offence, as disclosed by the complainant (P.W.10), was that there existed previous blood feud, enmity between the parties, dispute over the landed property apart. 9. In the Police Station Head Constable, Muharrir Taj Meer (P.W.5) reduced the report of complainant Muhammad (P.W.10) in the form of F.I.R. (Exh.P.A.) and read over and explained the same to the complainant, who, after accepting its contents to be correct, thumb-impressed the same. Thereafter, the injury-sheet (Exh.P.C.) and the inquest report (Exh.P.C./1) in respect of the deceased was prepared by H.C. Taj Mir (P.W.5). He then despatched the dead body of the deceased, under the escort of constable Naseem Khan (P.W.6), to the Civil Hospital, Charsadda for post-mortem examination. He also sent the copy of the F.I.R. To the S.H.O. Nisatta, Shahid Khan (P.W.7) for investigating the case. 10. The dead body of Hunar Khan (deceased) was then shifted from the police station to the mortuary, by constable Naseem Khan (P.W.6), where it was identified by Lal Zareen (P.W.8). 11. At the mortuary, Dr. Abdur Rashid (P.W.4) conducted the post-mortem examination at 1-30 p.m. And prepared his report (Exh.P.M.) alongwith pictorial (Exh.P.M./1). On examination, the doctor found the following injuries on the person of the deceased:-- "External examination R.M. Not present (1) Fir-arm entrance wound lateral and above the sternum, size 1-1/4" x 1-1/4". (2) Fire-arm entrance wound size 1-1/4" x 1-1/4" on left side below wound No,l. (3) Fire-arm entrance wound 1-1/4" x 1-1/4" on sternum. (4) Fire-arm entrance wound 1-1/4" x 1-1/4" on left side 4" above the sternum.
---
## Page 3
(5) Fire-arm exit wound 1-1/4" x 1-1/4" on renal angle. (6) Fire-arm exit wound 2" below wound No, 1 . By this No,1, I meant to exit No,1 which has been given serial No,5 in this statement. Internal examination ' Stomach which contained semi-digested food, was half full and was injured. Kidney was also injured while the bladder was full of urine. Walls, ribs and cartilages fractured at site of inlet injury. Pleurae, lyranx, tracheas, both lungs, pericardium, heart and blood vessels were injured." 12. In the opinion of the doctor, the death was caused because of shock and haemorrhage, which resulted from the fire-arm injury to the vital organs of the body of the deceased such as heart and lungs. According to him the probable time between injury and death was instantaneous whereas the probable time between death and post-mortem examination was from 2 to 3 hours. 13. Sub-Inspector Javed Khan (P.W.12) who was the S.H.O. Of the police station was not present there and had gone to Police Station Charsadda, in connection with some special duty, on the day of occurrence, and as soon as he received the information about the murder, through wireless, he rushed to the spot. On reaching there, he initiated the investigation and recovered three empties (Exh.P./1) and one spent bullet (Exh.P.2) of .32 bore pistol and took the same into his possession vide Exh.P.B./1 in the presence of Khaki Shah (P.W.9). He sealed the same into a parcel. The Investigating Officer also took into his possession the blood-stained earth from the place of occurrence vide recovery memo. Exh.P.B./2 in the presence of its marginal witnesses including P.W.9. The site plan (Exh.P.B.) was prepared by him at the instance of the complainant (P.W.10) and eye-witness (P.W.11). The blood-stained clothes, i,e, shirt (Exh.P.3), Shalwar (Exh.P.4), belonging to the deceased, with corresponding cut marks were also taken into possession vide; recovery memo. Exh.P.B./3, in the presence of H.C. Rizwanullah (P.W.2). The Investigating Officer also took into his possession the sealed bottle containing the spent bullets which were extracted from the dead body of Hunar Khan. All these items, it may be mentioned, were produced before the Investigating Officer by F.C. Naseem Khan (P.W.6). Thereafter, the Investigating Officer recorded the statements of the P.Ws. Under section 161, Cr.P.C. Since all the accused were avoiding their arrest, therefore, he applied and obtained warrants under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. And handed over the same to D.F.C. Ali Haider (P.W.1) for execution. The Investigating Officer vide his application P.E./2 sent the blood-stained earth and the bloodstained clothes to Forensic Science Laboratory and in this respect report (Exh.P.G.) was received from the Chemical Examiner and the Serologist, duly signed by Akhtar Gul and Ahmad Mustafa. The Investigating Officer (P.W.12) was then transferred and therefore, he handed over the investigation to his successor S.H.O. Shahid Khan (P.W.7). 14. Since all efforts of the police to arrest the accused did not yield any result and proved ineffective, therefore, complete challan under section 512, Cr.P.C. Was submitted, against the accused on 22-11-1991 by S.H.O. Shahid Khan (P.W.7). 15. It was in the month of January, 1993 that Sub-Inspector Hassan Khan (P.W.3) raided a house situated in village Talab Koroona and arrested the appellant accused who was hiding in the Ghani (sugar crushing machine) of one Saifur Rehman. At that time he was also carrying .30 bore pistol alongwith a bandoliar containing 15 rounds. Accordingly another case under section 13, Arms Ordinance was also registered against him. Since the appellant was required in the murder case in hand, therefore, he was apprehended in this case also. Sub-Inspector Hassan- Khan (P.W.3) then submitted a supplementary challan against him. 16. At the trial the accused pleaded not guilty and professed innocence. According to him he was falsely charged in the present case because of the bitter relationship, which existed between the parties. He, therefore, claimed trial.
---
## Page 4
17. To establish its case, the prosecution examined as many as 12 witnesses, almost all mentioned above. The appellant, it may be mentioned here, did not choose to be examined as his own witness under section 340(2), Cr.P.C. And also refused to produce any evidence in his defence. 18. In the main, reliance has been placed on the direct evidence of complainant Muhammad (P. W.10) eye-witness Fazal Amin (P. W.11), postmortem report (Exh.P.M.) and the recoveries, motive apart. 19. Let us proceed to discuss these one by one. The ocular evidence is taken up in the first instance. 20. There is no denying the fact that the eye-witness account has been furnished by complainant Muhammad (P.W.10) and Fazal Amin (P.W.11) who happen to be closely related to the deceased. Since both the eye-witnesses are interested and partisan, therefore, their evidence would require to be put to close and critical scrutiny/analysis. It may be stated that if the statement of such a witness inspires confidence and no independent witness was available then the Court may rely on the testimony of the interested witness provided it is otherwise free from doubt. In Roshan and others v. The State PLD 1977 SC 557 it was held:-- "There is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of interested witness? Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where the Supreme Court has upheld the conviction of the accused based entirely on the testimony of the ' interested' witness." 21. In case reported as Sharif and another v. The State 1973 SCMR 83 it has been observed by their Lordships:- "Corroboration may be offered by anything in circumstances of the case which tend to satisfy the mind of the Court that the witness has spoken the truth." 22. In Niaz v. The State PLD 1960 SC 387 his Lordship Mr. Justice Kaikaus observed:-- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there is no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, a further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it." 23. Similarly in Shihab Din v. The State PLD 1964 SC 177 his Lordship Mr. Justice Cornelius, Chief Justice, observed:-- "The mere relationship of witness does not necessarily render a witness's account of the occurrence doubtful provided his presence on the spot is proved beyond doubt. In so far as there were injuries on the bodies of two witnesses and the number of persons accused was not out of proportion to nature of their enterprise and the results they produced the witnesses in the circumstances were entitled to be believed."
---
## Page 5
24. Keeping in mind the abovementioned principles as laid down by the august Supreme Court of Pakistan for appreciating the ocular testimony of the related/interested witnesses, we find that the occurrence took place at day time (11-00 a.m. ). 25. The complainant while deposing on oath as P.W.10, in his examination-in-chief fully supported the version of the prosecution case as disclosed in the F.I.R. (Exh.P.A.). However, in his cross- examination he admitted that he and his sons, namely, Ahmad Ali (aged 28 years) and Luqman (aged 20 years) were charged under section 307, P.P.C. For having effectively fired upon Bayar Gul and that it was for this reason that all of them had gone to attend the trial Court. According to him, Hunar Khan (deceased), Fazal Amin (P.W.11) and Muhammad Habib had accompanied him for his protection. He further stated that when the case was called for hearing he alongwith his two sons put in the appearance and were duly marked as present. He alleged that Hunar Khan (deceased), Fazal Amin (P.W.11) and Muhammad Habib had not entered the Court room and had remained in the premises out side the Court room. According to him after the adjournment of the case and after getting "Parcha Peshi" for the next date, all of them left for village through the bus except for his two sons who stayed back with his counsel Mr. Waris Khan, Advocate. 26. This witness admitted that one Janas son of Mujram Khan had charged Hunar Khan (deceased) for having molested his daughter, that when Janas went to Hunar Khan to lodge a protest in this behalf, Hunar Khan (deceased) had fired upon him and thus a report was lodged against the deceased by Janas. 27. He also admitted that a triple murder had taken place in which Sabz Ali, Tehseenullah and Umerzada were killed, that the said incident took place near the house of Hunar Khan (deceased). That in fact during the said occurrence the cattle of Hunar Khan (deceased) was also injured. He, however, refuted the suggestion that Hunar Khan was also involved in that case as he had given "cover" to the accused who had committed the triple murder. He also refuted the suggestion that Hunar Khan (deceased) was killed by some unknown assailants who were sitting, at the relevant time, on the roof of the bus and that he was not present at the time of occurrence and had not seen the same as such. 28. The other eye-witness Fazli Amin (P.W.11) is the son of Hunar Khan (deceased) and is the nephew of the complainant (P.W.10). When examined on oath as a prosecution witness, he fully supported the prosecution version as contained in the F.I.R. (Exh.P.A.) as well as narrated by the complainant (P.W.10), in his examination-in-chief. However, this witness, in his entire statement, did not mention a word about the two sons of the complainant i,e,, Ahmad Ali and Luqman. In point of fact, in his cross-examination, he contradicted complainant (P.W.10) when he stated:-- "Only Muhammad P.W. Went inside the Court while I, alongwith my father (Hunar Khan) and P.W. Muhammad Habib, was standing outside the Court room." 29. Be that as it may, if the statement of this witness, who happens to be the son of the deceased, is taken to be correct then the complainant's statement, recorded on oath, becomes false. It is, therefore, very much obvious that one of two eye-witnesses has lied regarding this important point. 30. A close scrutiny of the statement of the complainant (P.W.10), one of the alleged eye-witness, would reveal that he had admitted, in his cross-examination, that a few persons from Nisatta were travelling in the bus but he coulc' not name them as they belonged to another village while he (the complainant) belonged to Rahat Abad Village, situated at a distance of about 100 double paces from the scene of occurrence. (Pages 30 and 31 of the Print Book). According to the complainant many persons from his village, Rahat Abad, were attracted to the spot after hearing the report of the fire shots. However, he did not inform them about the occurrence as they had only come to see the "deceased". Similarly the other eye-witness, Fazli Amin (P.W.11), in his cross-examination stated:--
---
## Page 6
"Numerous persons from Rahat Abad were attracted to the spot on the report of the fire shot." (Page 33 Print Book). 31. Even the Investigating Officer, S.-I. Javed Khan, S.H.O. (P.W.12) admitted this fact in his cross- examination and stated:-- "When I reached the spot, eye-witnesses and 2/3 other persons were present there." (Page 36 Print Book). 32. The Investigating Officer (P.W.12) further added:-- "A Foot Constable was also present." 33. It would, therefore, follow that immediately after the occurrence people hailing from the complainant's village were attracted to the spot and 2/3 persons, besides an F.C., were still present there when in the meantime, The Investigating Officer reached the scene of occurrence straight from Charsadda. 34. In the circumstances, we fail to understand as to what prevented him (Investigating Officer) from joining these independent, disinterested and natural witnesses with the investigation of the case. There is not an iota of evidence to show that the Investigating Officer had in fact attempted to record their statements or had requested them to join the investigation. Therefore, it shall be presumed that the said persons were not ready to support the prosecution story as disclosed by the complainant in the F.I.R. (Exh.P.A.). This fact has introduced an element of uncertainty regarding the credibility of the version with regard to the manner in which the deceased was done to death. 35. Besides, there is nothing on the file to suggest that on the day of occurrence, the complainant (P.W.10), Hunar Khan (deceased) and Fazli Amin (P.W.11) had, in fact, gone to attend the Court of Assistant Commissioner, Charsadda, where a case under section 307, P.P.C. Was pending against them. The prosecution could have taken certified copies of the order-sheet of the said case to show that the complainant and his sons had attended the Court on the morning of the eventful day. They could have also produced the Reader of the Court, alongwith the "Register Peshi" to show that complainant's case under section 307, P.P.C. Was fixed on that date. The best evidence which could have been procured so easily, was not produced, to satisfy the judicial mind of this Court that on the eventful day the complainant (P.W.10), his sons, Hunar Khan (deceased), Fazli Amin son of the deceased (P.W.11) etc. Had gone to the Court and that on their way back home they were way laid by the appellant and the absconding accused, for reasons best known to the prosecution alone. The fact, that the statement of Mr. Waris Khan, Advocate, to show that the complainant and his sons had gone to attend the Court and had contacted him on the day of occurrence was also not recorded nor was he produced as a witness to prove this fact, cannot be lost sight of. 36. In criminal case, the burden of proving its case rests entirely on the prosecution. The prosecution is duty bound to prove the case against the accused beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is taken by the accused. The defence plea is always to be considered in juxtaposition with prosecution case and in the final analysis if the defence plea is proved or accepted then the prosecution case would stand discredited. However, if the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case then in that case it would be enough. It may be mentioned here that in case it is not established at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond reasonable doubt would not diminish even if the defence plea is not proved or is found to be false. Ashiq Hussain v. The State reported as 1993 SCMR 417. Similarly, it was held in Hakim Ali and others v. The State 1971 SCMR 432 that in criminal trial the onus always lies on the prosecution to prove its case and the prosecution has to succeed on the strength of its own case and not on the weakness of the defence. 37. The damaging statement, coming as it does, from the mouth of the complainant (P.W.10), the prosecution's star witness, cannot be easily/legally brushed aside, who while in the witness-box, stated:--
---
## Page 7
"I did not narrate the occurrence to any person on way to Police Station for lodging the report. I, for the first time, narrated the occurrence to Javed Khan (P.W.12) in the police station... After the report was recorded I and the Investigating Officer left for the spot. I pointed out various places on the spot to the Investigating Officer." 38. As against this the Investigating Officer, S.-I. Javed Khan, S.H.O. (P.W.12), when examined, stated:-- Examination-in-chief "During the days of occurrence I was S.H.O., Police Station Nisatta and on the day of occurrence, I was in Police Station Charsadda in connection with special duty when I got the information about the murder, through wireless, and on which I rushed to the spot." Cross-examination "I got the information about the occurrence at about 11-35 a.m. Through wireless. Anyhow I have not mentioned this fact in my D.D. Because at that time I was not in my police station. I recorded my diary the moment I reached the spot from Police Station, Charsadda I would have reached the spot from Police Station Charsadda in half an hour." 39. These material contradictions between the statements of the complainant (P.W.10) and the Investigating Officer (P.W.12), if taken into consideration, as these should be, not only demolish the case as set up in the F.I.R. But also shatter the entire fabric of the testimony of the complainant (P.W.10). The prosecution witnesses, in our opinion, have contradicted each other and therefore, their evidence is inherently defective. As such it does not inspire confidence. The complainant, in our considered view, is a compulsive liar and, therefore, the question of sifting the grain from the chaff does not arise. 40. This brings us to assess the correctness/validity of the site plan (Exh.P.B.) prepared by the Investigating Officer (P.W.12) at the instance of the complainant (P.W.10) and the other eye-witness (P.W.11). A perusal of the site plan (Exh.P.B.) would show that Hunar Khan (deceased), complainant Muhammad (P.W.10),…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.