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Petitioner: NASEER AKBAR & others VS Respondent: RAJA SHAHZAD KHAN & others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): M. Tabassum Aftab Alvi, Muhammad Sheraz Kiani Title: NASEER AKBAR & others vs RAJA SHAHZAD KHAN & others Case No.: Crl. Appeal Nos. 39 & 41 of 2016 Date of Judgment:2017-06-02 Reported As: PLJ 2018 AJ&K 1 Result: Order accordingly
JUDGMENT
JUDGMENT M. Tabassum Aftab Alvi, C.J.--The captioned Appeals arise out of the same judgment dated 28.07.2016, passed by the learned Additional District Court of Criminal Jurisdiction, Mirpur; therefore, these are being consolidated and decided through the instant judgment. 2. The facts precisely stated are that complainant, Raja Shahzad Khan S/o Raja Shahnawaz Khan, lodged a written report at Police Station, Dudyal, on 21.11.2005, at 13:30, stating therein that he alongwith Sarfaraz, Pervaiz and Afraz, was sitting in Courtyard of P.C.0 of Raja Ghazanfar, situated near Hospital at Siyakh, meanwhile, (i) Jahangir Akbar, (ii) Naseer Akbar, (iii) Muhammad Asif, (iv) Muhammad Tariq, (v) Ali Jan Shah, (vi) Muhammad Arshad and (vii) Muhammad Kabeer, riding in a blue coloured Jeep/Land Cruiser, owned by Jahangir Akbar, arrived- there. Jahangir Akbar, Naseer Akbar, Asif and Tariq were armed with Kalashnikov shape rifles, whereas others were armed with .12-bore guns. Accused, Jahangir Akbar, alighting from Jeep, at once raised lalkara' and fired a burst, out of which a bullet hit Sarfaraz, on his ribs and thereafter other accused-persons started straight firing, which hit on hip and legs of Sarfaraz. However, he (complainant) and his other companions had luckily a narrow escape, whereas, Sarfaraz, died at spot. The occurrence, besides complainant and his companions, was also witnessed by other people. The motive beyond the occurrence was that Jahangir etc used to demand hooligan-tax (Goonda-Tax) and in the morning of occurrence, Jahangir, accused, intercepting Sarfaraz and Pervaiz at Bathar curve, demanded money, but upon their refusal, an altercation took place between Jahangir and Sarfaraz, however, Jahangir, extended dire consequences and went away. The dead body of Sarfaraz, was brought in Hospital and application, was moved to initiate legal proceedings. 3. As per the aforesaid report, a case bearing F.I.R. No. 174/2005, in offences under Sections 302, 324,
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147, 148 & 149, A.P.C. was registered against accused-persons at Police Station, Dudyal, on 21.11.2005 and postmortem of Sarfaraz, deceased, was conducted by Dr. Liaquat Ali, SMO, T.H.Q. Hospital, Dudyal, who found the following injuries on the person of deceased:-- I. Entrance Wound. 1/3" circular wound at 9th I/C space, 3" below the inferior angle of Rt. Scapular region & dark red blood coining out. Exit Wound. 1/2" circular type situated at 10th I/C space, 2" above at the highest point of Lt. iliac crest. II. Entrance Wound. 1/2" circular 2" Lt. to mid line of Lt. buttock. Exit Wound. 2" circular type wound & irregular margins on anterior aspect of Lf. thigh nearby at mid. III. Entrance Wound. 1" oblong type aforesaid aspect of the thigh, nearby at mid. Exit Wound. 1(1/2)" X 1/2" (oblong type)at posterior lateral side of the thigh on lower 1/3rd posterior. IV. Pellets Wounds (Small marks) 20 in Nos scattered at frontal region of Rt. thigh of various sides. V. Small abrasion present at later aspect on upper 1/3rd of Rt. leg. 4. The police started investigation and accused-persons, namely, Naseer Akbar, Muhammad Arshad, Muhammad Kabeer, Ali Jan Shah and Asif, were arrested, whereas accused-persons, Jahangir Akbar and Muhammad Tariq, remained absconder, who, however, were arrested on 16.2.2007 and 19.5.2007, respectively. During investigation, weapons of offence, a Kalashnikov from Naseer Akbar, a .12-bore gun from Muhammad Arshad, a .12-bore gun from Muhammad Kabeer, a Kalashnikov, bearing No. 54262 alongwith magazine, from Jahangir Akbar, a .222-bore rifle, bearing No. A015 alongwith magazine, from Muhammad Tariq, accused-persons, were recovered. After completion of investigation, accused-persons, namely, Naseer Akbar, Jahangir Akbar, Muhammad Tariq, Muhammad Kabeer and Muhammad Arshad, were challaned in offences under Sections 302, 324, 147, 148, 149, A.P.C. and 13/20/65, Arms Act, before concerned Court, whereas Ali Jan Shah and Muhammad Asif, accused-persons, were exonerated by police under Section 169, Cr.P.C. The Additional District Court of Criminal Jurisdiction, Mirpur, after submission of challan, recorded statements of accused-persons, except Muhammad Tariq, under Section 265-D, Cr.P.C., and Muhammad Tariq's statement was recorded under Section 242, Cr.P.C., who pleaded not guilty. Thereupon, prosecution was ordered to produce evidence in support of its case, which was produced. The evidence adduced by prosecution against accused-persons, was put to them as required by Section 342, Cr.P.C., who once again denied the guilt and opted to get record their statements under Section 340, Cr.P.C. Thereupon, the trial Court recorded statements of Jahangir Akbar and Naseer Akbar, accused-persons, under Section 340(2), Cr.P.C. on 14.06.2016. 5. The learned Additional District Court of Criminal Jurisdiction, Mirpur, after conclusion of trial and hearing arguments, awarded life imprisonment as `Tazie under Section 302 (b), A.P.C, to Jahangir Akbar, Naseer Akbar, Muhammad Tariq and Muhammad Kabeer, appellants-convicts, whereas they were acquitted under Section 13/20/65, Arms Act. They were also imposed compensation under Section 544-A, Cr.P.C. as Rs. 3,00,000/- each, which would be paid to legal heirs of Sarfaraz, deceased, and in case of default of payment, they shall have to undergo further 06 months simple imprisonment. Muhammad Arshad, accused, was awarded five years simple imprisonment with fine of Rs. 20,000/-, under Section 201, A.P.C. and in default of payment of fine, he shall have to undergo further 06 months simple imprisonment. However, all the appellants-convicts, were extended benefit of Section 382-B, Cr.P.C., vide the impugned judgment dated 28.07.2016. The appellants-convicts feeling aggrieved from their convictions and sentences, have filed Appeal Nos.39/2016 dated 05.08.2016, whereas, complainant, Raja Shahzad Khan, preferred Appeal No. 41/2016 dated 20.08.2016, against appellants-convicts for enhancing their sentences . upto extreme penalty. 6. Mr. Khalid Rasheed Chaudhary, the learned Counsel for appellants convicts, submitted that F.I.R.
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was concocted, fabricated and during investigation even its contents were negated by complainant in his Court statement. He pointed out that as per prosecution story, accused-party recklessly fired upon deceased, but surprisingly he did not receive any injury on upper vital part of his body, which negates prosecution story. He further contended that the given case was of no evidence and even prosecution failed to prove time, place and manner of occurrence, as alleged in F.I.R. and in statements recorded under Section 161, Cr.P.C. The learned Counsel argued that medical evidence was not in line with prosecution version rather it was in negation of prosecution story. He contended that most of the planted eye-witnesses were interested and chance witnesses and their statements were not in line with initial statements recorded under Section 161, Cr.P.C. and F.I.R., which were not corroborated by independent witnesses. He agitated that prosecution failed to prove motive, that an altercation took place between Jahangir Akbar, accused, and Sarfaraz, deceased, and accused-persons used to receive `Goonda-tax', because in this regard sole witness was Pervaiz (P.W.3), who was given up by prosecution while declaring that he was unnecessary witness, whereas other P.Ws. narrated hearsay story, which was a mitigating circumstance for acquittal of accused-persons, however, the Court below failed to ponder upon this aspect of the matter. The learned Counsel submitted that statements of so-called eye-witnesses, who are interested and inter-se related, were falsified to the extent of two accused-persons, hence, could not be relied upon to the extent of other co-accused-persons, but the Court below wrongly awarded them sentences, which are liable to be set-aside as such. The learned Counsel contended that it was celebrated precept of law that in case of different versions of eye-witnesses, the version favoring to accused should be relied upon, but the Court below failed to ponder upon this aspect of the case in judicious manner. He further contended that weak and unreliable oral evidence was not corroborated by recoveries and all accused-persons were entitled to . be acquitted of charge, while the other evidence in shape of statements of Investigation Officers, Patwari and Doctor were not in line with each other. He emphasized that all recoveries could not be proved; therefore, accused-persons were liable to be acquitted on this score too. The learned Counsel pointed out that site plan being important piece of evidence was also not in line with prosecution version rather fully negated the prosecution story. The learned Counsel, pressed into service that I.O. himself did not support prosecution version rather favoring complainant-party, it was planned trap of accused-persons in the case by LO and he behaved like complainant. He further contended that LOs. leveled serious allegations against accused-persons, like hardened, desperate and dangerous criminals, which means that they were inimical towards accused- persons. The learned Counsel agitated that important fact was suppressed by prosecution that accused-persons in all other cases were acquitted of charge, which creates serious doubt in prosecution story. He pointed out that in the instant case 07 accused-persons, namely, Jahangir Akbar, Naseer Akbar, Muhammad Asif, Tariq, Ali Jan Shah, Muhammad Arshad and Muhammad Kabeer, were implicated; however, during investigation, amongst them, two accused-persons, Asif and Jan Shah, were exonerated by police on the ground that they were not participants of the instant occurrence, but their exoneration was not challenged by prosecution at any forum, whereas all of the aforesaid accused-persons, were attributed to same role of firing at deceased. The learned Counsel further contended that as per statements of Allah Dad P.W., dated 22.11.2005 and 08.01.2006, Muhammad Asif, Ali Jan Shah and Muhammad Tariq, accused-persons, were not present at spot, however, Muhammad Tariq, accused, was also awarded 25 years life imprisonment. The learned Counsel submitted that statement of Jahangir Akbar, accused, under Section 164, Cr.P.C. was not recorded by Magistrate; therefore, the same was not reliable, but the Court below failed to consider this aspect too, rather prosecution witnesses tried to conceal their relationship with deceased. He argued that P.Ws. Allah Dad and Shakeel, were not nominated in F.I.R. and no independent witness from neighboring was associated in the case. He further
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contended that P.Ws. made improvements in their Court statements, for instance they did not depose in earlier statements that they concealed themselves under the cot. He pointed out that neither a cot was recovered nor there was any mentioning about it in site-plan. The learned Counsel agitated that statements of Allah Dad and Shakeel P.Ws., recorded under Section 161, Cr.P.C. at belated stage, could not be taken into consideration. He submitted that except Allah Dad P.W., the other P.Ws., did not depose that Arshad, accued, was diriving alleged Land Cruiser. He emphasized that Shakeel P.W., deposed contrary to site-plan, that Jahangir Akbar and Muhammad Kabeer, accused, were firing in front of Hotel. He pointed out that places of witnesses, as per site- plan, were wrongly inserted in it. The learned Counsel further agitated that empties of 8MM were recovered but no recovery of 8mm was made and accused were alleged to make firing with Kalashnikovs and .12-bore guns, so it was not clear that from what kind of weapon deceased received injuries; therefore, prosecution miserably failed to prove manner of occurrence. The learned Counsel, in rebuttal, submitted that a J.I.T. was constituted in the instant case, however, its report was not exhibited in evidence; therefore, the same could not be read against accused- persons. The learned Counsel also pointed out that accused-persons were sentenced by trial Court on the ground of some suggestions and not on the basis of evidence. He argued that in light of evidence and circumstances of the case, accused-persons, were liable to be acquitted of charges, but the Court below committed grave error while awarding them sentences; therefore, by accepting their appeal they may be acquitted of the charges and appeal filed by complainant may be disthissed. He, in support of his arguments, cited the following case law:-- I. PLD 1963 SC 17. II. 197 2 SCMR 286. III. PLD 1981 SC (AJ&K)86. IV. PLD 1984 SC 44. V. 1990 P.Cr.L.J 883. VI. 1993 SCM R 550. VII.1994 P.Cr.L.J (Lahore) 2060 VIII. 1994 SCR 275. IX. 1996 P.Cr.L.J Sh.C. AJ&K 109. X. 1998 SCM R 1847. XI. 1999 P.Cr.L.J 1049. XII.2001 SCMR 554. XIII. 2007 SCR 01, 100 & 332. XIV.PLJ 2012 SC (AJ&K) 74. XV.NLR 2013 Cr.C. SC AJ&K 53. XVI. 2014 SCR 351. XVII. 2015 SCR 100. 7. Conversely, Raja Khalid Mahmood, the learned Counsel for complainant submitted that prosecution cited 36 witnesses in calendar of challan, out of whom P.W.3, was given up because he was abroad, however, eye-witnesses, Shahzad, Afraz, Shakeel and Allah Dad, deposed that accused-persons had been receiving hooligan-tax. Likewise Investigating Officer, Nasrullah, also stated about `GoondaTax', and even otherwise, in presence of eye-witnesses, there was no need to prove motive. The learned Counsel pointed out that statements of some of P. Ws. under Section 161, Cr.P.C., were recorded next day of occurrence, however, such delay was sufficiently explained by Nadeem Arif, I.O., that on the day of occurrence, a dead body was found from place of Ratta; hence, he went there and could not record statements of P.Ws. in the instant case. The learned Counsel submitted that presence of accused-persons at spot, the roles attributed to them and recoveries of the weapons of offence have fully proved through cogent, convincing and reliable
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evidence, however, the Court below committed illegality while awarding lesser punishment to accused-persons, instead of death sentence. The learned Counsel pointed out that accused got recorded their statements in defense, on account of which burden of proof shifted from prosecution to defense, however, the defense could not prove innocence of accused-persons. The learned Counsel also contended that contents of site-plan were wrongly interpreted by the learned Counsel for accused-persons. He agitated that if some minor contradictions appear in prosecution evidence, which was natural aspect of the case, and such contradictions would not give any benefit to accused-party. The learned Counsel contended that recovered empties and holes found on clothing of deceased were the same in numbers, which fact fully proved case against accused-persons. The learned Counsel submitted that there was no contradiction in evidence of recoveries witnesses, so under Article 54 of Qanun-e-Shahadat Order, the same was proved against accused-persons. The learned Counsel contended that a J.I.T. was formed and as per its report, though not exhibited, accused-persons were found habitual and professional offenders, against whom about 30 cases were found to be registered in different offences; however, they were so hardened that nobody dared to give evidence against them, hence, in some cases they were acquitted of the charges. The learned Counsel submitted that statement of Jahangir Akbar, accused, was recorded under Section 164, Cr.P.C., which. fully connected him with the commission of alleged offence. The learned Counsel further submitted that presence of accused, site-plan, recoveries, medical report and other evidence fully established case against accused-persons; therefore, while accepting complainant's appeal, they may be awarded death sentence, as they were vicariously liable for death of Sarfaraz, deceased. He finally submitted for dismissal of appeal filed by appellants-convicts and placed reliance upon the following authorities:- I. PLD 1985 SC 134. II. 1995 SCR 344. III. 198 9 SCR 47. IV. PLJ 2 007 Sh.C. AJ&K 32 &. 108. V. 2012 SCM R 1422. VI. 2 014 SCR 372. 8. Hafiz Fazl-ur-Rahman Dar, the learned Assistant Advocate General, appearing on behalf of State, fully owned and supported arguments addressed by the learned Counsel for complainant and prayed for acceptance of appeal filed by complainant. 9. We have given our dispassionate thought to arguments at Bar by the learned Advocates for parties and gone through the record of the case with utmost care. 10. The prosecution case, as per written report of complainant, Raja Shahzad Khan, is that, on 21.11.2005, he alongwith Sarfaraz, Pervaiz and Afraz, was .sitting in Courtyard of P.C.O of Raja Ghazanfar, situated near Hospital at Siyakh, meanwhile, Jahangir Akbar, Naseer Akbar, Muhammad Asif, Muhammad Tariq, Ali Jan Shah, Muhammad Arshad and Muhammad Kabeer, riding in a blue coloured Jeep/Land Cruiser, owned by Jahangir Akbar, arrived there. Jahangir Akbar, Naseer Akbar, Muhammad Asif and Muhammad Tariq, were armed with Kalashnikovs, whereas others were armed with .12-bore guns. Accused, Jahangir Akbar, alighting from Jeep, at once raised lalkara' and fired a burst, out of which a bullet hit Sarfaraz, on his ribs and thereafter other accused- persons started straight firing, which hit on hip and legs of Sarfaraz. However, complainant and his other companions luckily narrow escaped, whereas Sarfaraz, died at spot. The occurrence, besides complainant and his companions, was also witnessed by other people. The motive beyond the occurrence was stated that Jahangir etc, used to demand hooligan-tax (Goonda-Tax) and in the morning of occurrence, Jahangir, accused, intercepting Sarfaraz and. Pervaiz, at Bathar curve, demanded money, however, on their refusal, an altercation took place between Jahangir and
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Sarfaraz, then Jahangir, extending dire consequences, went away, and later on committed the said offence. 11.It is worthwhile to observe here that as per contents of F.I.R., there are three eye-witnesses, namely, Raja Shahzad Khan, Pervaiz and Afraz; however, Allah Dad and Muhammad Shakeel, were also cited as eye-witnesses in calendar of challan. As per argument of the learned Counsel for appellants-convicts, Raja Shahzad Khan and Afraz, are close relatives of deceased and their evidence was not corroborated by independent witnesses, whereas Allah Dad and Muhammad Shakeel, P.Ws. are chance witnesses; hence, evidence of the aforesaid P.Ws. cannot be relied upon. A minute perusal of record although shows that Raja Shahzad Khan and Afraz, eye-witnesses, are relatives of deceased, however, it is well settled principle of law that evidence of a close relative cannot be brushed aside on the ground of relationship, especially so when he has not been shown inimical to the accused. The aforesaid view is supported from a case titled Muhammad Khalil v. The State (1992 SCR 249), wherein, it was held as under: "We have given due consideration to the arguments raised at the bar. The first question relates to the credibility of the eyewitnesses namely, Gulzar Ahmad, Muhammad Malik, Nazar Muhammad and Abdul Hamid. These witnesses have been relied upon not only by the members of the District Criminal Court but also by the Shariat Court. As has already been pointed out, the difference of opinion between the members of the Shariat Court was with regard to the nature and quantum of punishment to be awarded to the accused persons, namely Muhammad Khalil and Muhammad Tariq and not about their guilt. The mere fact that some of these witnesses are related to the deceased are not sufficient to discard their testimony, especially so when they have not been shown inimical to the accused-appellant." The same view was reiterated by the Apex Court in case titled Muhammad Tahir Aziz v. The State & another (2009 SCR 71), wherein, it was laid down as under:-- "It is well settled principle of law that mere relationship is no ground for discarding the evidence of a prosecution witness, unless and until his enmity is established with the accused person." 12. The second part of argument of the learned Counsel for appellants-convicts is that evidence of interested and related witnesses was not corroborated, by independent witnesses. We may examine here that as to what corroboration exactly means. Broadly speaking the corroboration means a sort of confirmation of conclusions about existence of certain fact and corroboration of the statement of an interested witness does not mean that the statement of the witness is false or untrue, rather it is desirable to accept it as wholly true that it should have a confirmatory support by way of precaution to attain clarity. The view is supported from a case reported as Muhammad Sharif v. The State (PLD 1978 SC (AJ&K) 146), wherein, it was laid down by the Hon'ble Supreme Court as under: "Before discussing the available confirmatory evidence, it would be expedient to determine as to what corroboration means "Corroboration" of the statement of interested witnesses does not mean that the statement of the witnesses is false or untrue. What it really means is that to accept it as wholly true it is desirable that it should have a confirmatory support. In fact when it is said that the statement of witnesses need corroboration to support it, this finding proceeds on the basis that version of P.Ws. is prima-facie correct but by way of precaution it needs corroboration to attain clarity." We are alive that in the case of an interested witness, the corroboration need not be of the same probationer force as in the case of an accomplice. For corroboration, it is not necessary that there should be an independent witness supporting the story put forward by an interested witness, rather corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. The aforesaid view is fortified from a case titled as Nazir and others v. The State (PLD 1962 SC 269), wherein, it was held as under:
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"This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstance relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing." 13. The third part of argument of the learned Counsel for appellants-convicts is that Allah Dad and Muhammad Shakeel, are chance witnesses. A perusal of record reveals that Allah Dad, P.W., was running a Hotel near the place of occurrence and at the time of occurrence he was present at Hotel, whereas, as per statement of Muhammad Shakeel P.W., he was also present at the Hotel when E occurrence took place and it is well settled that if a chance witness reasonably explains his presence at the concerned place and states about occurrence in such a way that inspires confidence and is also corroborated by any other evidence or circumstance, the same can be considered and relied upon. The view finds support from a case reported as Iqbal v. State [PLJ 1988 Cr.C. (Lahore) 522], wherein, it was held as under: "The presence of this witness at the spot and his witnessing the occurrence on the fateful night, therefore, was sheer chance and it can conveniently he said that he was a chance witness but his statement cannot be brushed aside simply on this point alone. If a chance witness reasonably explains his presence at the spot and renders narration of the occurrence in such a way that the same inspires confidence and it was further supported by the evidence which materially corroborates such version then the same can be considered alongwith other incriminating evidence." 14.However, if for the sake of argument, evidence of aforesaid two witnesses, Allah Dad and Muhammad Shakeel, is not considered, even then there are two eye-witnesses in the instant case and…
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