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Petitioner: SARDAR SHAH and another VS Respondent: STATE and another
Court Name: Peshawar High Court Judge(s): Liaqat Ali Shah, Imtiaz Ali Title: SARDAR SHAH and another vs STATE and another Case No.: Crl. Appeal No, 158 of 2009 & M.R. No, 11 of 2009 Date of Judgment:2010-06-22 Reported As: PLJ 2011 Cr.C. (Peshawar) 38 Result: Appeal accepted
JUDGMENT
JUDGMENT Liaqat Ali Shah, J.--Appellants Sardar Shah son of Hakeem Khan aged, 27/28 years and Hakeem Khan son of Abdur Rahim aged 79/80 years have preferred the instant appeal against the judgment of the learned Judge Anti-Terrorism Court, Mardan dated 30.04.2009, in case FIR No, 435 dated 13.09.2007 registered against them under Sections 302/324/109/148/149, PPC read with Section 7 of the Anti-Terrorism Act, 1997 in Police Station Jabbar, Mardan. 2. Appellant Sardar Shah was convicted and sentenced as under:-- {{TABLE}} SI. NoSection of Law Conviction/Sentences 1. & 2U/S. 7(a) ATA r/w S. 302(b), PPC. Convicted and Sentenced to Death (on three counts) with a fine of Rs,50,000/- or in default 'thereof to undergo one year R.I, On each count (for the murder of deceased Muhammad Ali. Haji Gharib Gul and Muhammad Sadeeq) counts) with a fine of Rs,20,000/- or in default thereof to undergo one year R.I on each count (for attempting at the lives of Jamshid, Hazrat Ali, Wasif, Bakht Zada and Amir Zada).
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3 U/S. 7(C) ATA Convicted and sentenced to 10 years R.I. (on five counts) with a fine of Rs,50,000/- or in default thereof to undergo one year R.I. (for causing grievous injuries to Jamshid, Hazrat Ali. Wasif, Bakht Zada and Amir Zada). 4 U/Ss. 148/149, PPC Convicted and sentenced 3 years R.I. 5 U/S. 544, Cr.P.C. Sentenced to pay a fine of Rs, 50,000/- as compensat ion, which on recovery was ordered to be paid to the legal heirs of each deceased or in default thereof to undergo 6 months R.I. 6 U/S. 544-A Cr.P.C. Sentenced to pay a fine of Rs,50,000/- or in default thereof to undergo 6 months R.I on each count as compensation to all the injured. 7 Sentenced to pay a fine of Rs,50,000/- (on five counts) As compensation to the victims or in default thereof to undergo 6 months R.I. 8 The fine and compensation was ordered to be recovered only, if the death sentence is not executed, or is altered or modified by the High Court into imprisonment. {{TABLE}} While appellant Hakeem Khan was convicted and sentenced as under:- {{TABLE}} Sr. No,Section of Law Conviction/Sentences 1 U/S. 21-I/S.7(a) ATA r w S.302/149 PPC.Convicted. and Sentenced to imprisonment for life (on three counts) with a fine of Rs,50,000/- or in default thereof to undergo one year R.I each, (for the murder of deceased Muhammad Ali, Haji Gharib Gul and Muhammad Sadeeq). 2 U/S. 21-I/S.7(b) ATA Convicted and Sentenced to 10 years R.I on five counts) with a fine of Rs,20,000/- or in default thereof to undergo
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one year R.I on each count (for attempting at the lives of Jamshid, Hazrat Ali, Wasif, Bakht Zada and Amir Zada). 3 U/Ss. 7(C)/21-I ATA Convicted and sentenced to 10 years R.I. (on five counts) with a fine of Rs,50.000/- or in default thereof to undergo one year R.I. (for causing grievous injuries to Jamshid, Hazrat Ali, Wasif, Bakht Zada and Amir Zada). 4 U/Ss. 148/149, PPC Convicted and sentenced 3 years R.I. 5 U/S. 544-A Cr.P.C. Sentenced to pay a fine of Rs,50,000/- or in default thereof to undergo 6 months R.I on each count as compensation to all the injured. Both the sentences in default of payment of fine were ordered to run consecutively to the substantive sentence. 6 Sentenced to pay a fine of Rs,50,000/- as compensation to the legal heirs of each Deceased or in default thereof to undergo 6 months R.I. on each count. Both the sentences in default of payment of fine shall run consecutively to the substantive sentence. 7 Sentenced to pay a fine of Rs,50,000/- (on five counts) As compensation to the victims or in default thereof
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to undergo 6 months R.I. Both the sentences awarded to the accused in default of payment of fine were ordered to run consecutively to the substantive sentence. 8 All the substantive sentences other than those in default of payment of fine/ compensation were ordered to run concurrently and the benefit provided by S.382-B, Cr.PC be given to the accused-appellant. {{TABLE}} 3. Brief facts of the case are that on 13.09.2007, complainant Wasif son of Haji Gharib Gul, in injured condition, reported the matter to the police in the Causality of DHQ Hospital, Mardan in presence of Umarzada to the effect that on the eventful date at 2025 hours, after offering Khuftan congregational prayer, when they were waiting/ standing for Taraweeh prayer, in the meantime, appellants Sardar Shah and Hakeem Khan alongwith their absconding co-accused Said Nawab, Fazal Wahab and Said Ali Shah duly armed with daggers and fire-arms, entered the mosque, known as Masjid Bilal Sadiq Abad, Jamal Garhi, and upon the command of appellant Hakeem Khan, appellant Sardar Shah and absconding co-accused, named above, gave daggers blows, in the Courtyard of the mosque; to complainant Wasif son of Haji Gharib Gul, Muhammad Sadeeq, Haji Gharib Gul and Muhammad Ali as well as Bakht Zada, Amir Zada, Jamshid and Hazrat Ali as a result whereof Muhammad Sadeeq, Haji Gharib Gul and Muhammad Ali were died and he alongwith four persons namely, Bakht Zada, Amir Zada, Jamshid and Hazrat Ali got injured. Motive for the occurrence was that 3/4 days prior to the present occurrence, there was some altercation between PW Umarzada and appellant Sardar Shah. The occurrence was witnessed by Umarzada, Momin Khan including injured persons and other persons present in the mosque besides the complainant. After the occurrence, the accused party while decamping from the spot, opened aerial firing. The complainant charged the appellants alongwith their absconding co .accused for the commission of offence. His report was drafted in the shape of Murasila, Ex.PA/1 by Mushtaq Ahmad, ASI, who after preparing the injury sheets and inquest reports of injured persons and deceased, sent the dead bodies to the mortuary for autopsy under the escort of Muhammad Arif, FC and also sent the murasila "through Noorul Qamar, FC to the Police Station for the registration of a formal FIR. Both of the appellants were arrested on 13.09.2007 i,e,, the very day, when the case was registered. 4. On completion of investigation, the convicts-appellants were challaned to the Court for trial. The copies of the relevant documents under Section 265-C, Cr.PC were supplied to them. The charge was framed against them, to which they pleaded not guilty and claimed trial. 5. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the appellants etc., produced as many as eleven witnesses. (PW--1) Muhammad Arfi, FC No, 1357, escorted the dead bodies to the hospital for post-mortem and the inured persons for medical treatment. After the post-mortem examination, the doctor handed over to him the post-mortem papers and medico-legal reports, which he further handed over to the investigating officer on the following morning. (PW-2) Safdar Shah had identified the dead bodies of
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Muhammad Ali, Muhammad Sadeeq and Haji Gharib Gul before the police as well as before the doctor. (PW-3) Ali Haider was the marginal witness to the recovery memos, Ex.PW-3/1 & Ex.PW-3/2, vide which, both the appellants led the police party to the place of occurrence and pointed out their respective places to the police as well as on the pointation of appellant Sardar Shah, a dagger, which was used in the commission of offence was taken into possession by the police. (PW-4) Dr. Farrukh Uzair, MO, on 13.09.2007 had examined injured Bakht Zada, Jamshid, Wasif, Hazrat Ali and Amir Zada and prepared their medico-legal reports and endorsed the injury sheets vide, Ex.PW-4/1, Ex.PW-4/2; Ex.PW-4/3, Ex.PW-4/4, Ex.PW-4/5, Ex.PW-4/6; Ex.PW4/7, Ex.PW-4/8 and Ex.PW-4/9, Ex.PW-4/10 respectively. On the same . date at 10.00 p.m., he conducted post-mortem examination of deceased Muhammad Ali, vide Postmortem report Ex.PW-4/11 and endorsed On the injury sheet, and inquest report vide Ex.PW-4/12 & Ex.PW-4/13 and founding the following:-- External Examination. Young bearded man, wearing sky blue Shalwar Qameez and white banyan. Injuries Deep transverse clean incised wound left side neck with clotting blood in the wound 1 x 1 inch. Another clean incised wound on the left shoulder 2x2 inches. Internal Examination. {{TABLE}} Larynx and trachea Damaged. Blood vessels Left Jagular vein and left carotid artery cut. {{TABLE}} Opinion. In the opinion of the doctor, the cause of death was excessive bleeding due to direct cutting of neck vessels, (Jagular vein and carotid artery on left side) due to stabbing injury with a sharp weapon. Probable time that Elapsed. {{TABLE}} Between injury and death 10 to 15 minutes. Between death & post- mortemWithin 2 hours. {{TABLE}} On the same date, on 10.30 p.m. he also performed post-mortem examination of Muhammad Sadeeq deceased vide post-mortem report Ex.PW-4/14 and endorsed on the injury sheet and inquest report vide Ex.PW-4/15 & Ex.PW-4/16 and founding the following:-- External Examination. A young stout man, wearing white Shaiwar, Qameez and white banyan. Injuries There 4vas a clean incised oblique wound left lumber region posteriorly about 3x3 inches gapping in nature with clotted blood in it. Internal Examination. {{TABLE}} Thorax Blood vessels :Left renal vessels damaged. Abdomen Walls Left lumber region posteriorly' 3 x 3 inches
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gapping clean incised wound cutting all abdominal vessels. Peritoneum Bruised. Kidneys Left kidney damaged. Muscles, Bones & joints All abdominal wall muscles damaged on left lumber region posteriorly. {{TABLE}} Opinion. In the opinion of the doctor, the person died of excessive blood loss due to direct damage to left kidney and its vessels caused by penetrating sharp weapon. Probable time that Elapsed. {{TABLE}} (a) Between injury and death 10 to 20 minutes. (b) Between death and post- mortem :Within 2 hours. {{TABLE}} On the same date at 11.00 p.m., he also conducted autopsy of deceased Gharib Gul, vide Postmortem report Ex.PW-4/17 and endorsed on the injury sheet and inquest report vide Ex.PW-4/18 & Ex.PW-4/19 and founding the following:-- External Examination. Old man with white beard, wearing white Shalwar Qameez. Injuries There was a clean incised gapping would 3 x 3 inches (right lumber region) posteriorly with clotted blood in the wound. Internal Examination. {{TABLE}} Thorax Blood vessels : Right renal vessels damaged Abdomen Walls Right lumber region, all abdominal wall muscles damaged 3 x 3 inches gapping clean incised wound. Kidneys Right kidney damaged. {{TABLE}} Muscles, Bones & Joints. Right lumber region abdominal wall muscles damaged. Opinion In the opinion of the doctor, the person died of excessive blood loss due to the injury of right kidney and its vessels caused by penetrating shape weapon. Probable time that Elapsed. {{TABLE}} (a) Between injury and death 10 to 20 minutes. (b) Between death and Post- mortem :Within 2 hours.
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{{TABLE}} (PW-5) Saeedullah ASI was the marginal witness to the recovery memos, Exh.PW-5/1, Exh.PW-5/2, Exh.PW-5/3, Exh.PW-5/4, Exh.PW5/5, Exh.PW-5/6, Exh.PW-5/7 Exh.PW-5/8, vide which the 4 investigating officer took into possession, the blood-stained garments of five injured witnesses as well as three deceased persons. (PW-6) Ghulam Bacha, ASI, on the receipt of copy of Murasila, Exh.PA/1, incorporated its contents into FIR, Exh.PA, which was further handed over to the investigation branch. (PWL7) Mushtaq, ASI had recorded the report of Wasif complainant, Exh.PA/1 in presence of PW Umarzada, who also signed the same as an attesting witnesses. Thereafter, he prepared the injury sheets of the inured witnesses vide Exh.PW-7/1, Ex.PW-7/2, Ex.PW-7/3 Ex.PW-7/4 & Ex.PW-7/5 respectively and also prepared the injury sheet and inquest reports of three deceased persons, already exhibited as Exh,PW-4/12, Exh.PW-4/15 & Ex.PW-4/18 and Exh.PW7/6, Exh.PW-7/7 & Exh.PW-7/8 respectively. After that, he sent the dead bodies alongwith injury sheets to the mortuary for post-mortem examination under the escort of Muhammad Arif, PC and sent the murasila to Police Station through Noorul Qamar PC for the registration of a case. (PW-8) Wasif, complainant had reiterated the whole story as narrated above. (PW-9) Momin, was an eye-witness of the present occurrence and duly supported the version of complainant Wasif and reiterated the whole occurrence as narrated above. (PW-10) Umar Zada was also the eye-witness of the present occurrence and had countersigned the report of the complainant. At his instance and pointation as well as at the instance of PW9 the investigating officer prepared the site-plan. (PW-11) Javed Shah Khan, SI (Investigation) had conducted the whole investigation of the instant case. He visited the spot, prepared the site-plan, Ex.PC at the instant of PWs Umar Zada and Momin; the appellants were arrested by SHO Jan Zada vide Card of arrest, Exh.PW-11/1 and Ex.PW-11/2; took into possession bloodstained garments of injured Amir Zada vide recovery memo, already exhibited Exh.PW-5/1; took into possession cover of the dagger from point-C from the place of occurrence, Exh.P-19, vide recovery memo, Ex.PW-1 1/3; took into possession of blood-stained cap of deceased Gharib Gul, Exh.P-20 from point-A, vide recovery memo, Exh.PW-11/4; took into possession blood-stained through cotton from the place of occurrence at the points of deceased Muhammad Ali, Muhammad Sadeeq and injured Hazrat Ali were laying, vide recovery memos Ex.PW-11/5, Exh.PW- 11/6 & Exh.PW-11/7 respectively; took into possession an electric rod, which was installed inside the mosque and let at the time of occurrence, vide recovery memo Exh.PW-11/8; took into possession the blood-stained garments of five injured and three deceased vide recovery memos, already exhibited Ex.PW-5/1, Ex.PW-5/2, Ex.PW5/3, Ex.PW-5/4, Ex.PW5/5, Ex.PW-5/6, Ex.PW-5/7 and Ex.PW-5/8 respectively; took into possession photographs of the place of occurrence, vide recovery memo Exh .PW-11 /9, Exh.PW-11/10 & Exh.PW-11/11 respectively; produced the appellants and obtained their custody vide three separate applications, Exh.PW-11/12, Exh.PW-11/13 & Exh.PW11/14 respectively; produced the appellants before the Court vide application Exh.PW-11/15, wherefrom they were sent to judicial lockup; both the appellants, during the course of investigation, made pointation of the place of occurrence, already exhibited as Exh.PW-3/1 and on the discovery of appellant Sardar Shah from his house, he (I0) took into possession a dagger, which was used in the commission of offence, already exhibited as Exh.PW-3/2; regarding this recovery, he prepared a sketch, Exh.PD; he (I.O) applied for warrant and proclamation notices under Sections 204 & 87, Cr.P.0 against absconding accused vide application Exh.PW-11/16 & Exh.PW-11/17; also prepared the list of legal heirs of deceased; sent the recovery articles to the FSL and received their reports, Exh.PE; recorded the statements of PWs as well as the appellants under Sections 161/164, Cr.P.C; thereafter, he handed over the file to/Jan Zada Khan, SHO, who submitted the complete challan against the appellants in the trial Court on 04.10.2007. The prosecution after abandoning the remaining PWs as necessary closed the case. 6. On conclusion of prosecution evidence, the convicts-appellants were examined under Section
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342, Cr.P.C. They, in their statements, denied the charges and pleaded innocence. They, however, didn't opt to-lead any evidence in their defence or to appear as their own witnesses in terms of Section 340(2), Cr.P.C. 7. Barrister Zahurul Haq, the learned counsel for the appellant, counsel for the complainant and the learned Additional Advocate General argued the case. The learned counsel for the appellants contended that four brothers alongwith their father have been charged for the commission of offence, which by itself would indicate that a false charge has been brought against the entire family members. To substantiate the above arguments, he referred to the numbers of injuries sustained by all the deceased and injured PWs namely Jamshid, Hazrat Ali, Wasif, Bakht Zada and Amir Zada. He further submitted that injured witnesses, except Wasif complainant, have been abandoned without any valid reasons, which fact goes a long way against the prosecution and that the learned trial Court couldn't record conviction against the appellants qua those injured witnesses, who were not produced during the trial. 8. When the learned counsel for the appellants made this submission, both the counsel for the State as well as complainant party were asked to argue on this point first. Both of them conceded it to this proposition and very candidly conceded that the appellants could haven't been punished for the injuries caused to those, who haven't appeared and charged the appellants during the trial. The learned counsel for the appellants in this respect had relied on 1991 SCM R 241 and 1992 SCM R 2037. In view of the arguments of the learned counsel for the appellants as well as both the learned counsel for the State and complainant party on this aspect of the case, we without making reference to any other piece of evidence would set aside the conviction and sentence awarded to the appellants for causing injuries to the injured PWs, who were not produced during the trial. On the same analogy, the learned counsel for the appellant argued that when none of the legal heirs of any of the deceased has formally been examined to charge the appellant for the murder of the deceased, conviction for such murders cannot be recorded - on the evidence of those, who do not fall in the category of legal heirs of the said deceased persons. He, while elaborating his this submission made reference to Section 417 (2) Cr.P.0 where right of appeal has been given only to an aggrieved person and not to anyone else even if he is cited/examined as a complainant or a witness. 9. The learned counsel for the appellants next contended that when four injured witnesses were not produced during the trial, the learned trial Court was under legal obligation and similarly this Court to draw an adverse inference in terms of Article 129(g) of Qanun-eShahadat Order, 1984. He relied on the judgments rendered in 1972 SCM R 286 and 1996 SCM R 167 and 170. 10. He next contended that discovery of dagger, alleged to have made at the instance of the appellant Sardar Shah is also to be excluded from consideration, for the reason that discovery memo, it is no-where stated that the dagger was blood-stained, whereas, in the FSL report, it is mentioned as blood-stained and that this contradiction between FSL report and the discovery memo prepared by the Investigating Officer would lead to the only conclusion that the discovery is nothing but plantation. By relying on PLJ 2004 Cr.C. (Pesh) 2374 (2) arguing the case of the appellant Hakeem Khan, the learned counsel contended that the word used in the FIR is "Maro", which in no way can be taken as substitution for "Kill". He further submitted that age of this appellant has been recorded 78/79 in his statement recorded under Section 342, Cr.P.C. In this respect, he relied on PLD 1975 SC 556 (8). His next argument was that more than ones accused were charged then corroboration of each accused is required, which is lacking in this case. In this respect, he relied on 1998 SCM R 1823 (b). He further argued with more vehemence that the Court in criminal cases has to give much weight and due consideration to the conduct of accused. While elaborating this submission, he submitted that when accused absconds after the commission of offence, then the Court take his abscondance as a corroborative piece. He emphasized on the fact
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that similar importance is to be given to a conduct, which is positive in nature. Thereafter, he submitted that the two appellants had voluntarily appeared before the police on the very day of occurrence. He further submitted that had the appellants, in any way, connected or had any concerned with the commission of the offence, then in the normal course of event they would have never surrendered rather like the other co-accused, they would have also absconded. He next contended that the presence of PW Momin and Umarzada has not been established for more- than one reason. While elaborating his submission, he took us through the site-plan, which, according to the learned counsel, is Shown to have been prepared at the instance of the above named PWs, who were examined during the trial has PWs-9 & 10 respectively. He submitted that the occurrence is stated to have taken place at 2025 hours; that too, in a mosque and the people has gathered their for "Tarawheeh" prayer and on the next day, the month of "Ramadan" had to commence. So in such like situation, the gathering in the Courtyard of the mosque would be quite thick and it was almost impossible for the witnesses to have given specific points to the accused as well as the victims. More particularly, when in such a situation, there would have definitely been chaois & panic.. He next argued that had these PWs been present, their names would have appeared, atleast, as a friend/identifiers on the medico-legal report and the inquest reports or on the post-mortem report whereas, none of the two appeared as such on any of the above documents, which shows that none of the two were present. About the absence of the PW Umarzada, he argued that when motive is specifically alleged to be between Umarzada and the accused party, then he would have not been spared more particularly when four accused are stated to have participated in the commission of the offence directly and one had commanded. 11.The learned counsel for the complainant argued that the spot has been established rather it remained undisputed that the discovery of dagger at the instance of appellant Sardar Shah, which proved to be weapon of offence, has left no room for any doubt; that each of the accused has been specifically shown in the site-plan to have given injury(s) to particular victims; that more material contradiction appear in the statement of the PWs and that the medical evidence fully corroborate the eye account. He submitted that none production of four witnesses would in no way adversely effect the prosecution case as it stood established from the convincing and confidence inspiring evidence of complainant and two eye-witnesses. He submitted that for such causality, why the complainant and other witnesses would have let the actual culprits. He argued that in the case, if. from the evidence, this Court frames an opinion that specific role to each of the accused is not established even then the appellants are responsible/liable under Section 149 of the PPC for the acts of other co-accused. He relied on the judgments rendered in 1934 PLJ SC 514; NLR 2005 Cr. Pesh: 222; 2009 M LD 54; 2007 NLR 317; 1998 SCMR 1818. 12.Mr. Ishtiaq Ibrahim, the learned Additional Advocate General appearing on behalf of the State submitted that the appellants have rightly been convicted and that they have committed the brutal and gruesome offence and there is no such evidence on the record from which any benefit can be given to them as it is quality of evidence not the quantity, which is taken into consideration. 13.As three co-accused of the appellants are absconding, so while deciding the instant appeal, we would avoid, to every possible extent, to discuss the case with such details which may not affect the case whenever the absconding accused are brought to book and tried. 14.Before addressing the arguments advanced by the learned counsel for the parties and discussing the evidence, we would like to refer to the fact that the case was initially registered under sections 302/324/148/149 PPC by the local police and after the arrest of the appellants they were produced before the learned Magistrate for obtaining police custody who vide order dated 14.9.2007 remanded the appellants to police custody till 17 9.2007. This fact is evident from Ex.PW 11/12. It so appears that the learned trial Court i,e, Judge Anti-- Terrorism Court, somehow or other came to know about the occurrence and he while taking suo moto notice directed the local police
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to produce the accused appellant alongwith record of the case before him. This fact is clear from the order of the Judge Anti-Terrorism Court dated 15.9.2007 which is reproduced herein below:-- "Accused Sardar Shah aged about 26 years s/o Hakim Khan and Hakim Khan aged about 65 years s/o Abdur Rahim both residents of Sadiq Abad cum Jamal Garhi Mardan produced in custody. In the case in hand both the accused stand directly…
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