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Petitioner: HABIB-UR-REHMAN And Another VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Abdur Rehman Khan, Saleem Dil Khan Title: HABIB-UR-REHMAN And Another vs THE STATE Case No.: Criminal Appeal No.23 and Murder Reference No.1 of 1991 Date of Judgment:1994-01-17 Reported As: PLD 1994 Peshawar 126 Result: Sentence reduce
JUDGMENT
JUDGMENT SALEEM DIL KHAN, J.---The two appellants, namely, Habib-ur---Rehman son of Sher Afzal, aged about 22/23 years (hereinafter named as Habib Khan) and Khurshid son of Ghulam Haider, aged about 23/24 years were convicted by Additional Sessions Judge-I, Haripur under section 302/34, P.P.C., for the murder of Muhammad Fayyaz son of Feroz Muhammad, aged 19/20 years through judgment dated 3-7-1991 and were sentenced to death and a fine of Rs.20,000 each. It was directed that the fine, if realized, shall be paid to legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The two appellants were also convicted under section 377, P.P.C. Through the same judgment/order and were further sentenced to 5 years' R.I. And a fine of Rs.5,000 each or further 1 year R.I. Each in default of payment thereof. The two appellants have challenged their conviction and sentence by filing this Criminal Appeal No.23 of 1991. The proceedings regarding confirmation of death sentence bearing Ne.Ll/1991 have also been sent to us for confirmation under section 374, Cr.P.C. By the learned trial Court. One Criminal Revision No.26/91 has also been filed by Muhammad Feroz father of the deceased for enhancement of sentence already imposed by the trial Court under section 377/34, P.P.C. And also to obtain an order for payment of compensation under section 544-A, Cr.P.C. Along with confiscation of the immovable property belonging to the two appellants. We propose to decide all the three matters by our consolidated judgment. 2. The prosecution story in this case takes start from the F.I.R. Which has been lodged by Maghfoor- ur-Rehman S.H.O., P.S. Kot Najibullah as first informant. According to the F.I.R. Maghfoor-ur-Rehman, S.H.O., Police Station Kot najibullah was about to leave the police station on his night patrol and it was about 10 p.m. In the night when a Suzuki Pick-up Van bearing NO.ADA 5237 came to the police
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station. Accused Khurshid son of Ghulam --Haider, resident of Malkiar, then injured, accompanied by Habib Khan accused and also one Mirza Shaukat, Advocate were boarding the said Suzuki Pick- up. They informed Maghfoor-ur-Rehman S.H.O., Kot-najibullah that at about 4 p.m. The same evening the two accused Khurshid and Habib Khan had boarded the Suzuki Pick-up Van bearing No. ADA 5237 for journey to Rawalpindi. Besides them some other persons numbering 3 or 4, whom they did not know, also boarded the said Suzuki Pick-up. They further stated that when the Suzuki Pick-up went ahead of Village Mang the driver turned the Suzuki towards the jungle where a scuffle started between the driver on one side and the aforesaid unknown persons on the other side. During this scuffle Khurshid accused received injury in the shape of the fracture of his arm. Maghfoor-ur-Rehman, S.H.O. Prepared the injury sheet of Khurshid accused and sent him to the Civil Hospital for treatment while he took Habib Khan accused along with him to the spot. On reaching the spot, which is jungle 'Kali Tarar' he found the dead body of Muhammad Fayaz deceased in a ditch and on examination found stab injuries on his person which had resulted in his death. The injuries have been mentioned in detail in the F.I.R. And the S.H.O. Opined that these injuries were caused by a sharp-edged weapon. Maghfoor-ur--Rehman, S.H.O. Prepared the injury sheet as well as the inquest report of deceased Muhammad Fayaz, Driver of the said Suzuki Van, and sent the dead body for post-mortem examination under the escort of Ali Asghar F.C. No.1190. The examination of the scene of occurrence on the pointed-ness of Habib Khan accused led the S.H.O. To the conclusion that the two accused had committed the murder of Muhammad Fayyaz either for snatching away the Suzuki Van and money or for the purpose of committing sodomy on his person and, therefore, he was of the view that a case under section 302/34, P.P.C. Be registered against these two accused. Consequently, he drafted a "Murasila" which he sent to S.H.O. Police Station Khanpur for registration of a case and sent it through Constable Muhammad Sabir Sultan F.C. No.1160. The present case was registered on the basis of this "Murasila" through F.I.R. No.98 placed on file as Exh.P.A. And both the accused were formally arrested by the police and investigation was started. 3. Khan Afsar, Head Constable was examined as P.W.1. He is witness to the recovery of Suzuki Pick- up bearing No.ADA 5237 along with its registrations copy produced by Habib Khan accused. He is also witness to the taking into possession by the I.O. Of Shalwar P.1, having semen stains and blood- stained shirt Exh.P.2 and "Chaddar" Exh.P.3 along with a phial containing the swabs taken from Khurshid accused. These items were produced by Qaim Khan F.C. No. 507. In his presence the I.O. Also took into possession shirt P.5, Shalwar P.6 blood-stained and having corresponding cut marks together with Chaddar Exh.P.7 blood stained and two phials containing the swabs of Muhammad Fayaz deceased which were produced by Ali Asghar F.C. No.1199. 4. Dr. Noor Wahab Medical Officer, Civil Hospital, Haripur was examined as P.W.2 who stated that he examined Habib Khan accused on 16-5-1988 at 9-15 a.m. And he found that mustaches and beard scanty developed but pubic hairs and sexual organs well developed and physically fit. He found him to be capable to perform sexual intercourse. Secondly, he advised X-ray for the determination of his age. The doctor also took suspected pieces of cloth and also urethral and paraurethral swa bs and sent the same to the chemical examiner for opinion, about the human semen, through police. The doctor also testified that the X-ray report of Habib Khan was in his hand--writing and as per the report the age of Habib Khan accused was 18-19 years. 5. Qaim Khan F.C. No.507, Police Station Khanpur was examined as P.W.3 and he testified that in his presence the I.O. Took into, possession Shalwar P.8, Qameez P.9, underwear P.10 belonging to Habib-Chan accused. In his presence one phial containing semen stains, a piece of cloth and a phial containing semen swa bs were also handed over by the doctor to the I.O. In his presence the I.O. Packed and sealed all these items in different parcels and prepared a memo in this behalf. Sher Muhammad Khan S.I. Has been examined as P.W.4 He partly investigated the case as he was
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posted S.H.O., P.S. Khanpur during the days of occurrence. Subsequently, upon his transfer, he handed over the file to Maghfoor-ur-Rehman, S.I. For onwards investigation. Fateh Muhammad P.W.5 and Abdul Latif P.W.6 had identified the dead body of Muhammad Fayyaz, Banaras Khan son of Hayat Muhammad examined as P.W.7 is the owner of Suzuki Pick-up No. ADA 5237. According to him, this Suzuki had been purchased by him at a price of Rs.38,500. He, for some time himself plied the said Suzuki but later on he made over the job of driving of Suzuki to Muhammad Fayaz deceased and, on regular basis, employed him as Driver. On the day of occurrence before `Iftar' time Muhammad Fayaz deceased met Banaras Khan and told him that after `Iftar --he should take the Suzuki Pick-up to his house. On the same night at about 1 or 1-30 a.m. One Parvez and Muhammad Ashraf came to his house and informed him that Muhammad Fayaz had been murdered. On receipt of this information he went to Panian Chowk and found his Suzuki Van standing there in Panian Chowk while the dead body of Muhammad Fayaz was in the Civil Hospital, Haripur. After seeing the dead body of the deceased he went after the father of the deceased in order to inform him. Then he along with Feroz came to the Civil Hospital, Haripur and found two persons present there wearing blood-stained clothes. They were Khurshid and Habib accused. On the following morning he along with Habib accused accompanied the police party and went towards Khanpur. According to this witness, accused Habib. Khan pointed out the various places on the scene of occurrence. Pertinent among these pointations is that in the presence of this witness, accused Habib Khan led the police party to the place where he had concealed the blood- stained `Pesh Qabz' in a bush and the same was taken out at his pointed-ness which was taken into possession by the I.O. In his presence and was also sealed by the I.O. In his presence. The memo. Prepared in this behalf was signed by this witness to which he testified in the Court statement as well. Blood-stained earth was also recovered in the presence of this witness through memo. Exh.P.W.7/2 to which the witness has testified in his Court statement. Statement of Muhammad Feroz Khan, father of deceased Muhammad Fayaz was recorded as P.W.8. This witness stated that on the evening preceding the eventful night at about 6-30 p.m. He was told by his son Muhammad Fayaz deceased that he was going on booking. This witness who is the father of the deceased testified that he saw two persons who were sitting with him on the front seat of the Suzuki Pick-up. When late at night he found that his son had not returned he got disturbed. After some time he was informed by Banaras Khan, the owner of the Suzuki, that his son had been murdered and that the accused had been arrested and the dead body had been taken to the hospital. This witness accompanied Banaras Khan P.W. To the hospital at Haripur and there he noticed that the dead body of his son was lying in the mortuary and he also saw two persons whose clothes were smeared with blood. One was present in the emergency ward while the other was present in the Suzuki under the arrest of the police. Banaras Khan P.W. Identified these two persons to be the same persons who had come to his house along with his son deceased Muhammad Fayaz in the Suzuki Pick-up in the evening preceding the eventful night so he testified to the effect that he had last seen the deceased in the company of the accused and he also charged both these accused for the murder of his son. Maghfoor-ur-Rehman Inspector was examined as P.W.9. He narrated almost the same story which he has given in the F.I.R. And he also testified that at the pointation of accused Habib he recovered the dead body of deceased Muhammad Fayaz and prepared the injury sheet Exh.p.w.9/1 and also the inquest report Exh.P.W.9/2 and then despatched the dead body in custody of Ali Asghar F.C. No.1190 for post-mortem examination. Khurshid accused who was injured by then was examined by him and he also prepared his injury sheet Exh.P.W.9/3 and sent him in custody of Sabir Sultan F.C. For medical examination. He also took into possession from the spot a trouser string P.12 which was blood- stained and a pair of chappel P.13 belonging to the deceased and took the same into possession and prepared the memo. Exh.P.W.9/4. The recovery memo. With regard to the dead body of Fayaz
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was prepared as Exh.P.W.9/5. Abdul Aziz Khan S.H.O. Who has been examined as P.W.10 is witness to the recovery of trouser string Exh.P.12 and' a pair of chappel Exh.P.13 which were taken into possession by the I.O. And he is also witness to the recovery of the dead body of Fayaz in half- naked position. Dr. Tariq Qureshi, Medical Officer, Civil Hospital, Haripur P.W.11 was examined and he stated that on 15-8-1988 at 11-30 a.m. He examined Khurshid son of Ghulam Haider, aged about 26 years and found the following:--- (1) A lacerated wound left upper arm on the internal aspect with a bruise of 1" x 1" in size with bleeding. (2) Complained of generalized body pain. According to opinion of the doctor, injury No.1 was caused by blunt means and grievous with 1 to 2 hours duration. Advised X-ray. Injury No.1 simple Patient was admitted in medical ward. On the police query he replied that the patient was 26 years of age and was capable to perform rape. According to the witness there were signs of rape on the penis of the accused also. Samples of semen on Shalwar and Qameez were handed over to the police. He testified to the correctness of his report which is on the file as Exh.P.W.11/1. Muhammad Farid Khan S.I. Examined as P.W.12 stated that in the year 1988 he was posted as S.H.O. Police Station Khanpur. He investigated the case partly and he had inspected the spot, had prepared the site plan Exh.P.12/1 with all the foot--notes and drawing correctly. He stated that he had prepared the site plan at the pointation of Habib Khan accused while he was in his custody. Accused Habib Khan was got examined through injury sheet Exh.P.W.12/2 by the Medical Officer, Civil Hospital, Haripur and then he was taken to the spot by this witness where on the pointation of Habib Khan accused he prepared the site plan. This witness testified to the fact that he took into possession Shalwar P.1, shirt Exh.P.2, Chadder P.3 and a Phial containing swa b of Khurshid accused produced by Qaim Khan after the medical examination of Khurshid and that he took the Phial into possession through memo Exh.P.W.1/2. Through the same memo all these items were packed and sealed into different parcels. The Phial was already packed and sealed. He also took into his possession Shalwar Exh.P.8, shirt Exh.P.9, underwear Exh.P.10 belonging to Habib Khan accused along with a Phial containing semen stains cloth piece and a Phial containing urethral swa b of Habib Khan accused. These items were packed and sealed into different parcels through memo. Exh.P.W.3/1. He also took into his possession shirt Exh.P.5, Shalwar Exh.P.6, both blood-stained and having corresponding cut marks, Chaddar Exh.P.7 along with two Phials Exh.P.8 containing the swa bs of deceased Muhammad Fayaz. He also prepared the memo. Exh.P.W.1/3 to this effect. All these items were packed and sealed in different parcels. This witness also took into possession a Suzuki Pick-up bearing No.5237-ADA which was produced by Habib Khan accused and he prepared a memo to this effect which was Exh.P.W.1/1. Subsequently, while in custody of Police, Habib Khan accused, led this witness to a bush of `Phalla' wherefrom, at his pointation, this witness recovered blood-stained `Besh Qabz' Exh.P.W.11, the weapon of offence, which the witness took into his possession and packed and sealed the same into a parcel. A recovery memo was prepared in this behalf which is on the file as Exh.P.7/1. The blood-stained earth was also recovered from the spot on the pointation of accused Habib Khan and the same was taken into possession, packed and sealed through memo. Exh.P.W.7/2. This witness also testified that he had drawn an application which is placed on the file as Exh.P.W.12/3 through which he had sent 9 parcels to the Chemical Examiner pertaining to the recoveries made by him during the investigation for the report of the chemical examiner. He also testified that he had seen the report of the chemical examiner on the file which is Exh.P.W.12/4. Dr. Muhammad Ikramullah, Medical Officer, Central Jail, Haripur P.W.13 stated that he examined the dead body and performed the post-mortem examination on the dead body of Muhammad Fayaz on 16-5-1988 at 6-45 a.m. And found the following:--- External appearance
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Stout. External injuries (1) Stab wound right cheek 1 in number 1" x 1/2" x skin and muscle deep, bled profusely. (2) Stab wounds right chest back side two in number penetrating the thoracic cavity 1-1/2" x 1" and 1" x .1/2". (3) Stab wounds right buttock for in number skin and muscle deep bled profusely of different sizes 1/2-2" and 3/4-1". (4) Stab wound right thigh back skin and muscle deep bled prefusely 1" x 1/2". (5) Stab wound left buttock skin and muscle deep 2" x 1/2". (6) Stab wound on epigastrium penetrating the abdominal cavity. (7) Stab wound right arm one in number 1" x 1/2". (8) Stab wound left thigh laternal aspect two in number 2" x 1/2". On internal examination the doctor found thorax wall, right pleura, right lung, abdominal walls, peritonium, mouth and liver injured. Stomach was intact and full of food material. 6. The doctor opined that the death had occurred due to sharp injuries to the vital organs such as liver, lung, plumunary blood vessels which resulted in shock and haemorrhage. According to the witness, 5 copies of the post-mortem report along with blood-stained Shalwar, shirt and two anal swa bs for chemical analysis taken from the deceased were handed over to the police. The Shalwar and shirt had corresponding cut marks. According to his opinion the probable time between injuries and death was 2 to 3 hours and between death and post--mortem examination 6 to 8 hours. The post-mortem examination report comprising 5 sheets Exh.P.W.13/1 were sent by this witness and he testified that they were correct and were correctly bearing his signatures. He further opined that the swa bs of the victim were sent for chemical examination and if they were found positive then he was subjected to carnal intercourse. The two accused, namely, Habib-ur-Rehman and Khurshid were examined under section 342, Cr.P.C. Wherein they professed complete innocence and charged the witnesses that they were interested witnesses and had involved the accused mala fide for their ulterior motives. The accused also produced D.W.1, namely, Saeedur Rehman H.C. Attached to the Court. He produced the original Roznamcha dated 15-5-1988 of Police Station Kot Najibullah. The entries in the daily diary from 14 to 28 have been copied by this witness from the original which were Exh.D.W.1/1. The original was seen and returned and the copies were found as correct. The counsel for the accused and the accused produced copies of F.I.R. No.155 dated 4-9-1988 of Police Station Khanpur, F.I.R. No.565 dated 31-7-1989 Police Station, Haripur and F.I.R. No.76 dated 23-6-1989 Police Station Kot Najibullah and closed their defence evidence. 7. The learned counsel for the appellants strenuously argued that there is no ocular evidence worth the name in this case and the entire case of prosecution hinges on circumstantial evidence which has always been considered as very weak evidence particularly in a case of capital punishment. He further contended that there is no confessional statement from the mouth of either of the appellants. Learned counsel argued that there is no motive which is very essential in cases like the one id hand. He stated that mere recoveries of dead body, Suzuki Pick-up Van, clothes of the appellants, being smeared with blood, and positive result of the Forensic Science Laboratory and Chemical Examiner are not sound foundations on which a criminal case can solidly stand. Learned counsel vehemently assailed the medical evidence with regard to the act of sodomy and has stressed that the crime of sodomy has not been proved at all. He has further stressed that the statements of the witnesses are discrepant inter se and, therefore, do not inspire confidence thus bound to be ignored. 8. The learned A.A.-G. Very fervently repelled the arguments propounded by the learned counsel for appellants by maintaining that the prosecution had very successfully brought home the charge to the appellants by way of ocular evidence as the appellants themselves had informed the police
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about the occurrence and they still had not drifted from that stand. He stressed that the circumstantial evidence brought forth on the record of the case was of such a nature and of such a high quality that it was squarely incompatible with the innocence of the appellants. The learned A.A: G. Mainly relied on the medical evidence coupled with the reports of Chemical Examiner and Serologist. 9. We have very patiently heard the learned counsel for the two sides and have also carefully scrutinized the record, down to the lowest strata. The learned trial Court has convicted and sentenced the appellants by placing reliance on the statement of Feroz Khan P.W.8 who has last seen the deceased in the company of accused and immediately identified the accused in hospital on the first sight, medical evidence in support of the prosecution story substantiated by the positive report of Chemical Examiner, the recoveries of incriminating articles particularly the crime weapon in the shape of `Penh Qabz' (dagger). 10. In the present case a sizeable portion of the prosecution story with regard to narration of fact is admitted by the appellants although they profess their own side of the story. We are, therefore, not required to dilate upon that portion of the evidence because facts admitted need not be proved. 11. The factum of last seen evidence is not denied by the appellants but, instead, they give the story in the following manner in their statement under section 342, Cr.P.C. Following is the statement of Habib Khan appellant:--- "I am innocent and falsely been involved. On the day of occurrence I along with Khursheed were going on the 'Suzuki of deceased. Three/for unknown culprits were also seated on that vehicle. When we reached near the alleged scene of occurrence the unknown culprits forcibly took the vehicle from the driver towards the Forest of Kali Tarar. During scuffle my co-accused Khursheed also sustained grievous injuries whereas the deceased was taken inside the forest forcibly by the unknown culprits and I brought co-accused Khursheed at Haripur wherefrom Shaukat Mirza, Advocate and one Nazir s/o Gohar-ur-Rehman, resident of Mohallah Khoo Haripur took us to P.S. Kot Najibullah for lodging the report. As we all had no knowledge regarding the jurisdiction of place of occurrence, we narrated the occurrence to Qazi Maghfoor-ur-Rehman the then S.H.O.,of P.S. Kot Najibullah in detail. He instead of writing our report went to the place of occurrence and came back with the dead body. We reached in the P.S. At about 9-30 or 10 p.m. As some occurrence of Haraba had taken place to the vicinity of P.S. Khanpur, Kot Najibullah by the Afghan refugees and local persons till 11-15 p.m. Qazi Maghfoor-ur-Rehman could not trace the actual culprits and on the next day we came to know that all the case was planted against me and my co-accused. As the Engineer of this case Qazi Maghfoor-ur-Rehman was interested to trace out the culprits and in order to satisfy their Superior Officers he took the present story against us. In the present case there is no eye--witness, no confessional statement nor circumstantial evidence and the Engineer of this case planted some fake recoveries against us in order to prove the untraced case. He also violated the law as he did not register the case after receiving information regarding cognizable offence. In his Murasila and during cross-examination he admitted this fact that we went to the P.S. Kot Najibullah in order to lodge the report against the unknown culprits. But Qazi Maghfoor did not try to trace out the unknown culprits who were mentioned by us in our report." The statement of Khurshid appellant is identical with the statement of Habib Khan appellant, therefore, need not be reproduced. 12. The appellants have adopted a peculiar story with regard to happening on the spot at the time of occurrence after admitting their presence on the spot at the relevant time. When we put the two versions in juxtaposition we do not feel any hesitation in rejecting the version of the appellants on the reasons that in the first instance how one can believe that three/for persons boarded the Suzuki with the intention of committing robbery and they were empty-handed and yet they had the courage to rob young men equal in number with them. Secondly, it is interesting to note that no
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one has been robbed nor have the appellants alleged that money or other valuable was taken away from them by the so-called "unknown culprits", so-much-so that the Suzuki Van too, was not snatched away although it was in perfect working condition as it was driven from the spot to the hospital. The guilty conscience of the appellants is further proved by the fact that instead of informing police or going to the hospital, which should have been the natural conduct in ordinary course of life, they approached a Practising Lawyer which fact leads one to the irresistible conclusion that they had something serious on their mind which they wanted to set right before approaching the law enforcing agency. Furthermore, they have stated that some cases of Haraba had taken place and in order to cover the failure in unearthing the culprits in those cases the I.O. Dishonestly mounted the present case over the heads of the appellants. This proposition is totally devoid of facts because the appellants have brought nothing concrete on record to support this contention. Above all that, it does not appeal to common sense that…
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