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Petitioner: ISLAM KHAN VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: ISLAM KHAN vs The STATE Case No.: Criminal Appeal No,1225 and Murder Reference No,264 of 2008 Date of Judgment:2013-02-15 Reported As: 2013 YLR 1763 Result: Sentence reduced.
JUDGMENT
JUDGMENT ' MALIK SHAHZAD AHMAD KHAN, J.---Islam Khan appellant along with Allah Ditta co-accused was tried in case F.I.R. No, 68 of 2006 dated 22-4-2006 offences under sections 302 and 34, Police Station Kot Naina, District Narowal. After conclusions of the trial, learned trial Court vide its judgment dated 23-10-2008 has convicted and sentenced the appellant as under:-- Islam Khan ' Convicted under section 302(b), P.P.C. For committing the murder of Abdul Shakoor, deceased and sentenced to death with a direction to pay the compensation amount of Rs,50,000 (Rupees Fifty Thousand only) to the legal heirs of deceased as envisaged under section 544-A of Cr.P.C. And in default, thereof, to suffer' simple imprisonment for six months' S.I. ' Through the same judgment the learned trial Court has, however, acquitted Allah Ditta accused, while giving benefit of doubt to him. 2. Feeling aggrieved, the appellant Islam Khan has challenged his conviction and sentence through Criminal Appeal No,1225 of 2008 whereas the learned trial Court has transmitted Murder Reference No,264 of 2008, for confirmation or otherwise of the death sentence of Islam Khan. We purpose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 23-10-2008 passed by the learned Additional Sessions Judge, Narowal. 3. Brief facts of the case as given by the complainant Irshad Khan (P.W.8) in his `Fard Biyan' Exh. PF on the basis of which formal F.I.R. Exh. PK was chalked out are that his niece Abida Bibi was married to Islam Khan (appellant) who was resident of village Ravi Riyan, Dera Irshad Kot Aariyan Tehsil Ferozwala, District Sheikhupura. Their relations became strained and 2/3 months prior to the occurrence Mst. Abida Bibi came back to her parent's house situated at Darya Minhasan, District
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Narowal and filed a suit for dissolution of marriage at Shakargarh. He (complainant) added that Islam Khan had twice/thrice tried to take her back forcibly and he had also threatened to kill her relatives. He explained that Islam Khan had visiting terms with Allah Ditta son of Faiz Muhammad in village Darya Minhasan. Abdul Shakoor alias Kala, nephew of the complainant was an army personnel who had come to village on leave on 22-4-2006 at about 1-00 p.m. He was standing at the `Adda' of the village after returning from Shakargarh, when Islam Khan (appellant) while armed with pistol .30 bore along with Allah Ditta emerged from the house of Allah Ditta and came to `adds'. Allah Ditta, raised lalkara' for teaching Abdul Shakoor a lesson for not sending Islam Khan's wife Abida Bibi with him, whereupon Islam Khan started firing at Abdul Shakoor. Abdul Shakoor tried to save his life and ran away towards the fields but he fell down at a distance of 50 karams from the village due to the firearm injury. Islam Khan again made fire shots at Abdul Shakoor who died at the spot. ' The motive behind the occurrence was that Islam Khan (appellant) intended to forcibly take back his wife Abida Bibi (sister of the deceased) and due to this reason he used to quarrel with the family members of his wife. 4. The appellant Islam Khan was arrested on 22-4-2006 at the spot in injured condition by Sabir Hussain S.-I. (P.W.10). As per prosecution case, on 27-4-2006 the appellant Islam Khan led to the recovery of pistol .30 bore (P-1) along with two live cartridges (P-3 to P-4) which were taken into possession vide memo Exh. PC. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused on 7-3-2007, to which they pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution produced eleven witnesses, during the trial. Irshad Khan, complainant (P.W.8) and Shahid Mahmood (P.W.7) are the witnesses of ocular account. Khalid Khan (P.W.5) is the recovery witness of pistol (P-1) and two live bullets (P/3-4). ' The medical evidence was furnished by Dr. Javed Iqbal (P.W.4). Sabir Hussain, S.-I. (P.W.10) was the Investigating Officer of this case. ' Mirza Tahir Taslim, Draftsman (P.W.1), Zulfiqar Ali 55/C (P.W.2), Muhammad Sarwar 333/HC (P.W.3), Ajmal Khan (P.W.6), Muhammad Arshad 673/C (P.W.9) and Muhammad Waris, A.S.-I. (P.W.l1 are the formal witnesses. The prosecution also produced documentary evidence in the shape of scaled site plan of the place of occurrence in duplicate Exh. PA and Exh. PA/1, copy of post mortem report Exh. PB, pictorial diagrams Exh.PB/1 and Exh. PB/2, memo of possession of pistol .30 bore (P-1) along with two live cartridges (P/3-4) Exh. PC, memo of possession of blood-stained earth Exh. PD, memo of possession of empty cartridges Exh.PE, statement of Irshad Khan complainant Exh. PF, memo of blood-stained clothes of deceased Exh.PG, copy of unsealed site plan of the place of occurrence Exh.PH, copy of inquest report. Exh.PJ, F.I.R. Exh. PK, report of Chemical Examiner, Exh. PL, report of Forensic Science Laboratory Exh. PM, report of Serologist Exh.PN and closed its evidence. 6. The statements of the appellant and his co-accused Allah Ditta (since acquitted) under section 342, Cr.P.C. Were recorded by the learned trial Court. The appellant and his co-accused refuted the allegations leveled against them and professed their innocence. While answering to question "Why the prosecution witnesses deposed against you and why this case against you" the appellant replied as under:- Islam Khan "I have committed no offence. I exercised the right of private defence of my person under section 97, P.P.C. The deceased Abdul Shakoor had become prey to his own aggression and assault. Abdul Shakoor and his wife were travelling in the same Dala in which I travelled to reach the place of occurrence. Abdul Shakoor deceased was my brother-in-law but I was not acquainted with him prior to. That day because he had not participated in marriage ceremony. Moreover, he had not
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visited me during the period of my matrimonial life because he throughout remained in his military camp. I had no intention or design to kill anyone. ' As a matter of fact, relations between me and my wife Abida Bibi were strained. She had left my house and was residing in her parents house situated in village Darya Minhasan. I was trying for reconciliation so was called by my in-laws deceitfully under the garb of compromise on the day of occurrence. I went to village Darya Minhasan on 22-4-2006 at about 1-00 p.m: When I reached at the bus stop of village Darya Minhasan, I saw that Arshad Khan armed with hatchet, Shabbir Khan armed with drat, Ansar Khan armed with sota, Islam Khan alias Slama son of Bland Khan armed with sota. Jameel Khan armed with hatchet, Shahid Khan armed with hatchet, Babar armed with iron rod were already present there having the common intention to kill me. Jameel Khan, Shabbir Khan and some of others were also armed with mousers and pistols which they had concealed under their garments. Ansar Khan raised lalkara that Islam Khan should not be spared. I started running towards northern fields in order to save myself but slipped down after covering the distance of two acres. All the assailants had encircled me. Abdul Shakoor armed with pistol also reached there. Shabbir Khan gave Drat blow which hit on my head, Jameel Khan and Shabbir Khan gave hatchet blows from rear side which caused injuries on my head and other parts of my body. Arshad Khan also gave hatchet blow on my head. Ansar Khan Islam Khan and Babar also caused different injuries on my person. Abdul Shakoor came forward to use his pistol with intention to kill me then I in order to save my life from their aggression, used my licensed pistol pressing its trigger the bullet hit Abdul Shakoor who died resultantly. Had I not used my licensed pistol, I would have been killed by the assailants. Police post was near the place of occurrence. Police party reached there and saved me. I exercised the right of self-defence used my licensed weapon which was with me as a routine, being a military person. I was medically examined and treated and luckily saved otherwise the assailants had let no stone unturned to kill me. I also adopt the same first version before the police on the day of occurrence. I was also deprived of cash amounting Rs, 8500. The Investigating Officer did not investigate the matter in accordance with law because no one from the assailant was ever arrested or investigated by him, which is absolutely injustice and misuse of authority.' ' The appellant did not opt to make statement under section 340(2) of Cr.P.C., however he produced defence evidence in the shape of evidence of Muhammad Iqbal, License Clerk (DW-1) and Doctor Javed Iqbal (DW-2). The appellant also produced Medico-legal report Exh. DA, statement of Shahid Mehmood Khan Exh.DB, copy of arms license Exh. DC and copy of register pertaining to license of pistol (P-1) Exh. DE. 7. The learned trial Court vide judgment dated 23-10-2008, found Islam Khan appellant guilty, convicted and sentenced him as mentioned and detailed above 8. Learned counsel for the appellant; in support of this appeal, contends that the appellant has falsely been implicated in this case; that the story of the prosecution narrated in the F.I.R. And brought before the court through the statements of P.Ws. Is absolutely incorrect; that in fact the appellant was attacked upon by the opposite side comprising of seven persons who inflicted eleven injuries on the person of the appellant and when Abdul Shakoor (deceased) was about to fire at the appellant, he in self-defence fired with his licensed pistol at the deceased; that it is on the record that the appellant was injured at the time of occurrence and when the police officials reached at the place of occurrence, they took the appellant to the hospital; that the same Doctor namely Doctor Javaid Iqbal (P.W.4) medically examined the appellant who later on conducted the post mortem examination on the dead body of the deceased; that the said doctor also appeared as (DW-2) and noted 11 injuries on the person of the appellant and he has stated that the injuries of the appellant were not self-inflicted; that the motive set out by the prosecution has not been proved as Mst. Abida Bibi was not examined in the Court. So far as the recovery of pistol is
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concerned, it is argued by the learned counsel for the appellant that it has been admitted by the Investigating Officer that the appellant was arrested at the spot by the police thus it is established that recovery of pistol was planted against the appellant after four days; that even otherwise it was a licensed pistol which was deliberately concealed by the police in order to show the same as unlicensed; that Muhammad Iqbal (DW-1) appeared before the court to prove that the pistol (P-1) was a licensed pistol of the appellant; that the plea taken by the appellant is more probable which fits in the circumstances of the case and as such the appellant is entitled to acquittal; that the report of Forensic Science Laboratory is not helpful because empties were deposited in the office of Forensic Science Laboratory on 15-5-2006 whereas the pistol was allegedly recovered on 27-4- 2006; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, thus, this appeal be accepted and the appellant may be acquitted from the charge. 9. Learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds; that the incident took place in the village of the deceased and presence of the appellant in the said village shows his bad intention; that the appellant had strained relations with his wife Mst. Abida Bibi who had filed a suit for dissolution of marriage against the appellant and due to this grudge he committed the murder of the deceased; that both the eye-witnesses of ocular account are residents of the same area where the occurrence took place, therefore, their presence at the spot is natural; that the ocular account of the prosecution is exactly in line with the medical evidence as the deceased received eight fire arm injuries as noted by the Doctor; that the prosecution evidence is further corroborated by the recovery of pistol (P-1). So far as the injuries on the person of the appellant are concerned, it is contended by the learned counsel for the complainant that those were caused by the villagers after the occurrence; that the appellant has inflicted as many as six fire arm injuries on the person of the deceased, therefore, he does not deserve any leniency in respect of his sentence; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative. 10. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance. 11. It would not be out of place to mention here that it is a case of two versions, i,e, one put forth by the prosecution in the form of ocular account furnished by Irshad Khan, complainant (P.W.8) and Shahid Mehmood (P.W.7), whereas, the other has been brought on the record through the statement of Islam Khan (appellant), recorded under section 342 of Cr.P.C. And suggestions put to the eyewitnesses during their cross-examination. 12. It is settled now by the Hon'ble Supreme Court of Pakistan in number of judgments that it is the prosecution which is required to prove its case against the accused persons beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not?. In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court of Pakistan in the case reported as Ashiq Hussain v. The State' (PLD 1994 SC 879), wherein, at page 883, the learned Apex Court of the country has been pleased to observe as under:-- "The proper and legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eyewitnesses and the probability of the story told by them, and then examine the statement of the accused under section 342 Cr.P.C., statement under section 340(2), Cr. P. C. And, the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must
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accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr. P. C. Is exculpatory, then lie must be acquitted. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter-versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly." ' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of 'Amin Ali and another v. The State' (2011 SCM R 323), therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will, first, examine the case of the prosecution. 13. The occurrence in this case took place on 22-4-2006 at 1-00 p.m. In the fields situated within the area of Darya Minhasan, Police Station Kot Nainan District, Narowal, whereas the matter was reported to the police by Irshad Khan complainant (P.W.8) on the same day at 2-00 p.m. Through `Fard Biyan' Exh.PF, on the basis, whereof formal F.I.R. Exh. PK was also registered on the same day at 2-30 p.m. The distance between the place of occurrence and police station is 5-miles. Considering the above-mentioned facts we are of the view that there was no delay in B reporting the matter to the police. 14. The ocular account of the prosecution was furnished by Irshad Khan complainant (P.W.8) and Shahid Mehmood (P.W.7). The examination-in-chief of Irshad Khan (P.W.8) is reproduced hereunder:-- ' I am agriculturist. Abida Bibi was married to Islam Khan accused present in the Court. The spouses had strained relations some 2/3 months prior to the occurrence. Abida Bibi filed a suit for dissolution of marriage in Family Court, Shakargarh. Islam used to come and threaten us to kill due to the said suit for dissolution of marriage. He also threatened that he would forcibly take away Abida Bibi. Islam Khan used to come in the house of Allah Ditta accused present in the Court. On 22-4-2006 at 1-00 p.m. Shakoor Khan was standing in Adda. Shakoor Khan had come from Shakargarh. He was army man. He had come to his house on leave. Islam Khan and Allah Ditta had come out of the house of Allah Ditta. Islam Khan had a pistol in his hand. Allah Ditta raised lalkara that a lesson be taught because Shakoor Khan was not sending his sister with Islam Khan. Islam Khan started firing at Shakoor Khan with his pistol. Shakoor Khan ran away towards the fields for saving his life. When Shakoor Khan was 50 karams away from the village on the northern side, a fire hit him and he fell down. Islam Khan accused continued firing at the fallen Shakoor Khan. Shakoor Khan died at the spot. I, Shahid Khan and Shabbir Khan had seen the occurrence. Islam Khan accused intended to forcibly take away Abida, which resulted in the dispute. I had recorded my statement to the police at the spot. The police read over the statement and got my thumb- impression. My statement is Exh.PF. My thumb-impression is Exh. PF/l.
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' The evidence of other eye-witness namely Shahid Mehmood (P.W.7) is also on the same lines. The place of occurrence is not disputed in this case by the defence, which took place at the `Adda. (Bus Stop) of village Darya Minhasan. The complainant Irshad Khan (P.W.8), as well as, Shahid Mehmood (P.W.7) both are residents of the said village (Darya Minhasan). Their presence along with the deceased, at the C spot, at the time of occurrence is neither unnatural nor improbable. The presence of eye-witness namely Shahid Khan (P.W.7) at the time of occurrence has also been admitted by the appellant though in a different manner, in his statement recorded under section 342, Cr.P.C. The above mentioned eye-witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. Their testimonies qua the role attributed to the appellant and injuries inflicted by him on the person of Abdul Shakoor (deceased) are confidence-inspiring and trustworthy. The complainant Irshad Khan is real paternal uncle of the deceased. It is not probable that he will falsely implicate the appellant and would let off the real culprit in the murder case of his near kith and kin. Substitution in such like cases is a rare phenominon. 15. The medical evidence of the prosecution was furnished by Dr. Javed Iqbal, (P.W.4). He, on 22-4- 2006 at 5-00 p.m. Conducted the post mortem examination on the dead body of Abdul Shakoor (deceased). He found eight injuries on the person of the deceased out of which six were entry wounds. According to his opinion all the injuries were ante-mortem in nature, caused by fire arm weapon and death was due to haemorrhage and shock due to chest injury. The probable time that elapsed between injuries and death was within 10 to 15 minutes and between death and post mortem was within six hours. The medical evidence furnished by Dr. Javed Iqbal (P.W.4) has fully supported the ocular account of the prosecution produced by Irshad Khan complainant (P.W.8) and Shahid Mehmood (P.W.7). According to the evidence of above mentioned eyewitnesses, the appellant used fire arm weapon (30 bore pistol) to commit the murder of Abdul Shakoor (deceased). The time of occurrence was mentioned as 1-00 p.m. By the eye-witnesses. According to medical evidence furnished by Dr. Javed Iqbal (P.W.4) the injuries on the person of Abdul Shakoor (deceased) were caused by fire arm weapon and the time of death as given in the post mortem report Exh. PB fully tallied with the ocular account and as such medical evidence is in line with the ocular account of the prosecution. 16. Insofar as the motive behind the occurrence is concerned, according to the prosecution case Mst. Abida Bibi filed a suit for dissolution of marriage in the Family Court, Shakkargarh against the appellant and as the appellant intended to forcibly take back Mst. Abida Bibi, therefore, he committed the murder of Abdul Shakoor (deceased). We have noted that although the appellant had admitted in his statement recorded under section 342, Cr.P.C. That his relations with Mst. Abida Bibi were strained but we have also noted that Irshad Khan complainant has admitted during his cross-examination that Abdul Shakoor (deceased) had not restrained Mst. Abida Bibi from living with Islam Khan (appellant). The complainant Irshad Khan though stated during his cross- examination that a copy of the suit for dissolution of marriage filed by Mst. Abida Bibi was produced to the Investigating Officer but the Investigating Officer, Sabir Hussain, S.-I. (P.W.10) has stated during his cross-examination that he had not included the copy of the plaint and interlocutory orders of the suit filed by Mst. Abida Bibi for dissolution of marriage in the case file. He further stated that no one had produced any such document to him. He further stated that he had not recorded the statement of Mst. Abida Bibi during his investigation. Neither Mst. Abida Bibi was produced before the learned trial Court nor any document was placed on the record by the prosecution to establish the alleged motive of the occurrence. The complainant Irshad Khan (P.W.8) has stated during his cross-examination that the house of Mst. Abida Bibi was at a distance of 20/25 karams from the place of occurrence. As admittedly, Abdul Shakoor (deceased) never restrained Mst. Abida Bibi from living with the appellant, therefore, it appears that something else
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had happened between the appellant and the deceased which resulted into the present unfortunate incident. We are of the considered view that the motive as alleged by the prosecution has riot been proved in this case. 17. The prosecution has also produced the evidence of recovery of pistol .30 bore (P-1) along with two live bullets (P-3 to P-4) which was allegedly taken into possession on the pointation of the appellant vide recovery memo Exh. PC. The prosecution has also produced the report of Forensic Science Laboratory Exh. PM according to which empties recovered from the place of occurrence were fired from pistol .30 bore (P-1). We have noted that three empties were recovered from the place of occurrence on 22-4-2006. The appellant was also arrested on 22-4-2006. Pistol .30 bore (P-1) was allegedly recovered on the pointation of the appellant on 27-4-2006 whereas the empties were received in the office of Forensic Science Laboratory, Punjab, Lahore on 15-5-2006 which means that the pistol, and empties were kept together at Police…
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