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Petitioner: Iftikhar Khan, etc VS Respondent: The State through
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Azhar Saleem Babar, Muhammad Sheraz Kiani Title: Iftikhar Khan, etc vs The State through Advocate General, AJ&K, etc. Case No.: Criminal Appeal No, 17/2017 Date of Judgment:2018-06-01 Reported As: KLR 2019 Criminal Cases 93 Result: Death sentence confirmed
JUDGMENT
JUDGMENT MUHAMMAD SHERAZ KIANI, J.--- The supra titled appeals have been directed against the judgment passed by Additional District Court of Criminal Jurisdiction Sehnsa camp Kotli on 29.12.2006, whereby the appellant, Iftikhar Khan alias Khari was convicted and awarded death sentence as "Tazir" under Section 302/(b), APC, for one month's S.I. under Section 341, APC and under Section 13/20/65, Arms Act, for three years' R.I. The convict-appellant was also given the benefit of Section 382-(b), Cr.P.C. while the co-accused, Tariq Mehmood and others were acquitted of the charge. A reference has also been sent by the learned Additional District Court of Criminal Jurisdiction Sehnsa for confirmation of death sentence of the convict-accused. 2. Precise facts forming background of the instant appeals and reference are that a case under Sections 302, 33741(2), 341, 109, APC and 13/20/65, Arms Act was registered against the convict- appellant and acquitted-respondents at Police Station, Sehnsa on the complaint of Raja Muhammad Asif. Complainant,. Raja Muhammad Asif reported the matter at Police Station Sehnsa stating therein that he is resident of Saila, his cousin namely Raja Sharif Khan S/o Raja Sawar Khan had arrived from England 3/4 days before the occurrence, who built a new house. On 27.05.2001, when his cousin, Raja Muhammad Sharif Khan alongwith his daughter Saima Sharif and niece Mst. Saiqa Zaffar went to see their old home and after visiting the same, they returned home at 12:00 a.m. On seeing his uncle and cousin, Sharif Khan, the complainant was going to his side, in the meantime, accused Iftikhar alias Khari who was armed with a rifle/Kalashnikov, stopped them on the way an pointed his rifle/Kalashnikov over his cousin Raja Muhammad Sharif and said "today your life will be done away". Thereafter, the accused fired a burst from his Kalashnikov at Raja Muhammad Sharif, one bullet hit him at right arm and two hit him at right side of rib cage and he
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fell down, upon which the accused, Tariq Mehmood armed with 12-bore gun, Naseer Khan having 30-bore pistol and accused, Liaqat Khan also having pistol, who were hiding in nearby bushes came out and also started aerial firing. The occurrence was stated to be witnessed complainant, Mst. Saima Sharif and Saiqa Zafar. It is further stated that on hearing the sound of firing, his brother Ajab Khan and other people of the locality also reached at the place of occurrence and saw the aforesaid accused-persons waving their weapons and fleeing from the scene. The motive behind the occurrence was stated to be a family dispute. It was also alleged that prior to this occurre ice, the accused-persons have also threatened the complainant party and the aforesaid accused- persons committed this occurrence with the help and consultation of Muhammad Ilyas, Ghazi Allah Ditta, Muhammad Abbas Khan and Muhammad Nisar Khan. 3. On this report, a case under Sections 324/109, 337-H(2), APC and 13/20/65, Arms Act was registered against the aforesaid accused-persons. During investigation, the injured, Raja Muhammad Sharif was initially referred from THQ, Hospital Sehnsa to DHQ, Hospital Kotli, however, due to seriousness of injuries, he was then referred to Islamabad commonly known Complex Hospital, however, on 10.06.2001; he succumbed to the injuries, as such the offence under Section 302, APC was added and offence under Section 324, APC was deleted. The post-mortem of the deceased was done in THQ, Hospital Sehnsa. The convict-appellant, Iftikhar alias Khari was arrested and rifle 222-bore was also recovered on his pointation. After completion of investigation, the convict, Iftikhar and accused-respondents, Tariq Mehmood Liaqat and Naseer were found guilty by the police of the offences under Sections 302/341, 337-H(2), 109, APC, while the accused namely Ilyas, Abbas, Muhammad Nisar and Ghazi Allah Ditta were found innocent, thus, they were given the benefit of Section 169, Cr.P.C. 4. On 02.02.2002, the convict-appellant and acquitted accused-respondents were examined under Section 242, Cr.P.C. wherein they pleaded not guilty and, opted for the trial of the case. The learned Trial Court directed the prosecution to produce evidence. The prosecution produced witnesses namely Muhammad Asif Khan, Saima Sharif, Saiqa Zaffar, Ajab Khan, Wajid Khan, Ali Asghar, Sajid, Mastabar Hussain, constable, Muhammad Nawaz Patwari Halqa, Muhammad Habib Khan, Head- constable, Dr. Khaliq-uz-Zaman CMO, Dr. Shahnawaz Khan, CMO, Ch. Mazhar Hussain, SHO/SI, Syed Arif Hussain Kazmi and Muhammad Jameel, SHO/SI and also produced report of Chemical Examiner, Ex. PJJ, report of Fire-arm Expert, Ex. PP as documentary evidence. 5. After completion of prosecution evidence, an opportunity was provided to the convict-appellant and acquitted-respondents under Section 342, Cr.P.C. on 19.10.2006 to furnish their explanation about the evidence and all the circumstances appearing against them. Wherein they expressed their denial from the accusation and refused to have any enmity with the deceased. They have also stated that the evidence produced by the prosecution is false. The convict-appellant also produced witnesses in defence namely Ameen Arshad and Sabir Hussain. 6. The learned Additional District Court of Criminal Jurisdiction Sehnsa camp Kotli after completion of trial and hearing the learned counsel for the parties convicted the appellant, Iftikhar alias Khari and awarded him death sentence as 'Tazir' under Section 302(b), APC, under Section 341, APC for one month's S.I. and under Section 13/20/65, Arms Act, for three years' R.I. The convicted-appellant was also given the benefit of Section 382-B, Cr.P.C., whereas co-accused, Tariq Mehmood, Liaqat and Naseer were acquitted of the charge vide its judgment dated 29.12.2006. Against the said judgment, the convict-appellant, Iftikhar alias Khari preferred an appeal for setting aside the same. The legal heirs of the deceased also filed an appeal for enhancement of sentence of convict and against the acquittal order of co-accused. A reference has also been sent by the learned Additional District Court of Criminal Jurisdiction Sehnsa camp Kotli for confirmation of death sentence. As both the appeals and reference arise out of the same judgment, therefore, these are being heard together and disposed of through this common judgment.
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7. Sardar Muhammad Akhtar Khan, the learned counsel for the convict-appellant and acquitted- respondents, argued that the Trial Court committed grave illegality while recording the impugned judgment to the extent of convict-appellant. He further argued that F.I.R. has been lodged after the delay .of one and half hour. Eight accused-persons were nominated in this case however, expect, Iftikhar alias Khari all the other co-accused were acquitted by the Trial Court. Weapon of offence was also recovered from two other co-accused; but no empty was recorded from the scene, as such the same was not sent to Forensic Science Laboratory. Shahzad Sarwar who prepared the injury sheet was not cited as witness and Ch. Sabir, DSP and Arshad recorded their Statements as defence witnesses. The learned counsel further submitted that three eye-witnesses have been shown, out of which two of them are women, one is daughter and second is nephew of the deceased, therefore, they are inimical and interested witnesses, their evidence cannot be relied upon. There is lot of contradiction in the Statement of the eye-witnesses, because according to F.I.R. and complainant, the convict-appellant Iftikhar fired a burst, whereas the other witnesses deposed that he hit fire one by one and 222-Rifle was recovered from the convict-appellant, which also negates the version of the prosecution that the deceased was done to death with the burst of Kalashnikov but the learned Trial Court while passing the impugned judgment completely ignored this important aspect of the case. It was also alleged by the prosecution that on hearing the noise of firing, many people from the vicinity reached at the place of occurrence, but no one was cited as witness. The motive alleged by the prosecution that the sister of the convict-appellant was divorced by the son of deceased, however, there is also contradiction' in the statements of witnesses in this regard, as such when enmity is alleged than independent corroboration is must. The learned counsel maintained that two witnesses were cited in the recovery of crime weapon 222-riffle and both of them are brothers of the complainant and there is contradiction in their Statement with regard to the place of recovery of crime weapon, therefore, the recovery of the crime weapon is also doubtful. There is also contradiction between the post-mortem' report and the injury sheet, thus the same is also doubtful. Complainant cannot be a recovery witness, which also negates the independent corroboration. The learned counsel submitted that the crime empties were sent after the delay of 1(1/2) month. The report of Serologist has also not been received. Dr. Shahnawaz, who is also related to the deceased, recorded the dying declaration. The learned counsel strenuously argued that the prosecution has badly failed to prove its case against the convict-appellant and other accused, but the Trial Court while convicting one accused fell in grave error. The judgment of the Trial Court is based on surmises and conjectures. Finally, the learned counsel prayed that by accepting the appeal, the impugned judgment to the extent of convict-appellant Iftikhar alias Khari may be set aside and he may also be acquitted of the charge. The other appeal filed by the legal heirs of the deceased and reference may be dismissed. In support of his contentions, the learned counsel refereed the following authorities:-- 1. 1995 P.Cr.L.J. 1504 2. 1996 SCMR 308 3. 1999 SCMR 114 4. 1999 SCMR 697 5. 2004 SCMR 1185 6. 2005 SCMR 1679 7. 2005 SCR 01 8. 2007 P.Cr.L.J. 868 9. 2007 SCR 332 10. PLD P.Cr.L.J. 01
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11. 2013 SCR 1582 12. 2014 2008 SC 1034 13. 2017 SCMR 486 14. 2017 SCMR 142 15. 2017 SCMR 596 8. On the other hand, Raja Javed Akhtar, the learned counsel for the complainant/legal heirs of the deceased while controverting the arguments raised by the learned counsel for the convict- appellant submitted that the occurrence took place during the broad daylight. The identification of the convict-appellant and acquitted-respondents was not in doubt. He further argued that there is no delay in lodging FIR. According to him, the time and place of occurrence alongwith names of the eye-witnesses were also mentioned. The prosecution has fully proved its case and version taken in the FIR through P.Ws. recoveries and other piece of evidence relating to offence which fully corroborates the story. The learned counsel submitted that the convict-appellant was alleged for murdering the deceased. The eye account was supported by documentary evidence such as post-mortem report, medical report, Forensic Science Laboratory etc. The learned counsel vehemently argued that the deposition made by the eyewitnesses is natural, confidence inspiring and corroborated by recovery of weapons of offence made at instance of Iftikhar alias Khari. The crime empties were seized from the place of occurrence and the motive was also proved. The learned counsel further argued that the judgment of the Trial Court to the extent of acquitted accused-respondents is based on surmises and conjectures, therefore the impugned judgment of the Trial Court is not a judgment in the eye of law as such the same is liable to be modified: Finally, the learned counsel prayed that by accepting the appeal. the impugned judgment may be modified and convict-appellant may be sentenced under Section 302(a), APC instead of 302(b), APC, and the acquitted-respondents may be sentenced under law and the appeal filed by the convict-appellant may be dismissed. In support of his contentions, the learned counsel cited the following case-law:-- 1. PLD 1988 SC (AJ&K) 207 2. 1997 P.Cr.L.J. SC 1865 3. (AJ&K) 417 4. 1999 M.L.D. 449. 5.1999 P.Cr.L.J. 648 6. 2000 M.L.D. 1777 7. 2001 S.C.R. 240 8. PLD 2002 SC 62 9. PLD 2002 SC 792 10. 2014 S.C.R. 121 9. The learned A.A.G. supported the arguments raised by the learned counsel for the complainant. 10. We have heard the learned counsel for the parties and gone through the record of the case with utmost care. 11. In the present case, according to the F.I.R., the cousin of the complainant, namely Raja Sharif Khan S/o Raja Sarwar Khan and arrived from England 3/4 days before the occurrence, who built a new house for him. On 27.05.2001, when Raja Muhammad Sharif Khan alongwith his daughter Saima Sharif and niece Mst. Saiqa Zafar went to see their old home and after visiting the same, they returned home at 12:00 a.m. On seeing his uncle and cousin, Sharif Khan, the complainant was going to his side, in the meantime, accused Iftikhar alias Khari who was armed with a rifle/Kalashnikov, stopped them on the way and pointed his rifle/Kalashnikov over his cousin Raja Muhammad Sharif and said "today your life will be decided". Thereafter, the accused fired a burst from his Kalashnikov at Raja Muhammad Sharif, one bullet hit him at right arm and two hit him at
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right side of rib cage and he fell down, upon which the accused, Tariq Mehmood armed with 12- bore gun, Naseer Khan having 30-bore pistol and accused,' Liaqat Khan also having pistol, who were hiding in nearby bushes came out and also started aerial firing. The motive behind the occurrence was stated to be a family dispute. It was also alleged that prior to this occurrence, the accused-persons have also threatened the complainant party and the aforesaid accused- persons committed this occurrence with the help and consultation (abetment) of Muhammad Ilyas, Ghazi Allah Ditta, Muhammad Abbas Khan and Muhammad Nisar Khan. 12. To prove its case, the prosecution examined fifteen witnesses namely, Muhammad Asif Khan, Saima Sharif, Saiqa Zafar, Ajab Khan, Wajid Khan, All Asghar, Sajid, Mastabar Hussain, constable, Muhammad Nawaz, Patwari Halqa, Muhammad Habib Khan, Head-Consable, Dr. Khaliq-uz- Zaman, CMA, Dr. Shahnawaz Khan, CMO, Ch. Mazhar Hussain, SHO/SI, Syed Arif Hussain Kazmi and Muhammad Jameel, SHO/SI, while in shape of documentary evidence the prosecution produced report of Chemical Examiner, Ex. PJJ, report of Fire-arm Expert Ex. PP. 13. At the very outset, we will scrutinize the statements of prosecution witnesses, P.W,.1, complainant, Muhammad Asif narrated the story as alleged in the F.I.R. In cross-examination he deposed that it is true that a quarrel took place between Sharif Khan (deceased) and Sobidar Anwar prior to the occurrence. Soon after the shot was fired at the deceased, he reached at the place of occurrence. He remained there for about 2/3 minutes and then rescued the deceased to his home. 14. P.W.2, Saima Sharif (eye-witness) Stated in her Statement that on 27.05.2001, she alongwith her father Muhammad Sharif and cousin, Saiqa were coming back after visiting their old house situated at Saila. When they reached near the house of uncle Mansha, convict, Iftikhar came in front of them and threatened his uncle. She and her cousin, Saiqa asked him to get at a side. Convict was armed with gun, waved the same and when her father was going his home, the convict fired three shots upon which he fell down. In the meantime, three other accused also came there and started firing. All the aforesaid accused-persons fled away from the scene after commission of the offence. They rescued the injured, father to Hospital, who was soaked with blood. The motive behind the occurrence is that her brother has divorced the sister of accused, lftikhar and prior to this occurrence; the accused-persons have also threatened them. in cross- examination, she deposed that four years before her brother had given divorce to the sister of the accused, Iftikhar. She further Stated that although marriage was taken place, but 'Rukhsati' was solemnized her, injured father remains admitted in the hospital for one month. Although she heard the noise of firing, but she did not see the other accused, as such she cannot tell that they were firing in air or not. One of the accused was armed with rifle, while the other two were having pistols, she added. 15. P.W.3, Saiqa Zafar (eye-witness) Stated the same story as narrated by Saima Sharif. In cross- examination she deposed that she saw. the accused. lftikhar at the place of occurrence. Asif, complainant also reached at the place of the occurrence after 2/3 minutes, whereas Ajab Khan reached there after 5/6 minutes. She further States that it is true that accused, Iftikhar was hiding near the house of Mansha and it is not true that Asif and Ajab have not seen the occurrence. 16. P.W.4, Ajab Khan, Stated in his Court's Statement that at the time of occurrence, he was present at his house and on hearing the sound of firing, he went towards the house of Mansha and when he reached near that, he saw accused, Iftikhar was waving his Kalashnikov/rifle and also said that he had taken the revenge of his sister. Then, the accused persons fled away from the scene, while the injured Sharif was lying on the ground. Saima Sharif, Saiqa Zaffar and Asif were also present there, thereafter the injured Muhammad Sharif was taken to the Hospital at Kotli and from there to Rawalpindi, however he later on died. Recovery of 222-riffle was also made from the accused, Iftikhar in his presence and recovery memo. Ex.PG wherein he put his signature as Ex.PG/l. In cross- examination, he deposed that he runs a shop of spare parts of the vehicles in Sehnsa bazaar. His
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house is situated in the eastern side of the house of deceased. Raja Sharif came from abroad (UK) in order to participate in the General Election. On the fateful day, he was seated in the courtyard of his house alongwith his father and aunt. On hearing the noise of firing he went towards the house of Muhammad Sharif (deceased), where he saw, accused-persons. The injured was taken to his house on foot. There was no dispute prevailing between the accused-persons and deceased at that moment, he stated. 17. P.W.5, Wajid Khan, is recovery witness, Stated that in his presence recovery of blood-stained clay. Ex.PC, empties Ex.PD and weapon of offence 222-riffle Ex.PG, which was recovered on the pointation of accused, Iftikhar from his house were made. In cross-examination, he deposed that he is real brother of complainant, Asif. Empties were recovered from the eastern side at about 5 yards near wall of the house of one Zaffar. He also went to the police station wherein on query, accused, Iftikhar revealed that the crime weapon was lying in his house, upon which, the police party went to his house and in his presence the same was recovered. He admitted it correct that prior to the occurrence, a quarrel also took place between Muhammad Sharif (deceased) and Anwar. 18. P.W.6, Ali Asghar is also a recovery witness of chaddar' (cloth sheet) which was put on the body of deceased when he was brought before Dr. Khaliq for post-mortem and recovery memo. Ex.PH was prepared, whereupon, he put his signature as Ex.PH 1. 19. P.W.7, Sajid Stated in his Court Statement that in his presence CMO, Sehnsa Hospital prepared a parcel in which a pellet was given to the Investigating Officer and recovery memo. Ex.PF was prepared. Doctor has also told the police that the same was extracted from the body of deceased. In cross-examination, he deposed that deceased was his cousin. 20. P.W.10, Mastabar Hussain, constable deposed that on 28.06.2000, he was posed at Sehnsa and in his presence the concerned SHO seized the wearing clothes of the deceased from DHQ, Hospital Kotli, which consist of Shalwar Kameez stained with blood and recovery memo. Ex.PE was prepared. In cross-examination, he stated that the proceeding of the recovery was made at noon time in the DHQ, Hospital Kotli and at that time 5/6 persons were also present there. 21. P.W.11 Muhammad Nawaz Patwari Halqa stated in his Court Statement that he was doing his job at Sehnsa from June, 2001. He prepared the site plan Ex.PI, copy `Khasra Gardawari' Ex.PJ, Jamabandi Ex.PK for the years 1994, 1995, site plan and marginalia Ex.PL as ordered by Tehsildar. 22. P.W.12. Muhammad Habib Khan, Head-constable Stated that he was appointed at Police Station Sehnsa from the year 2001. He received the articles i,e, blood-stained clay as parcel No, 1, three crime empties of 222-bore riffle as parcel No, 3, Shalwar Kameez soaked with blood as parcel No, 3, Rifle 222-bore as parcel No, 4, bloodstained `Chaddar' as parcel No, 5, parcel of pellet of gun prepared by CMO from the SHO and all of above-Stated articles were kept in the storehouse and thereafter the same were sent for chemical examination, Lahore on 08.07.2001 through Kabeer Hussain Shah, Constable. 23. PW.13, Dr. Khaliq-ul-Zaman, CMO got recorded his Statement before the Trial Court wherein he stated that from June, 2001 he was serving as CMO in the THQ, Hospital Sehnsa. He conducted the post-mortem of the deceased, Muhammad Sharif and issued post-mortem report Ex.PR wherein he also signed as Ex.PR/1. The cause of death of the deceased was due to fire-arm injury, failure of kidneys and excessive bleeding. In cross-examination, he deposed that before post-mortem, already two operations of the deceased have been conducted, one at DHQ, Hospital Kotli while the second at Islamic International Medical Complex, Islamabad. He did not find any pellet in the body of the deceased, he would not determine the size of injury because the deceased was brought to him after surgery. He further stated that he cannot tell exactly the cause of death of the deceased. 24. P.W.14, Dr. Shahnawaz Khan, CMO, Stated that he is posted as CMO in THQ, Hospital Sehnsa from June, 2001. Injury sheet, Ex.PM was received by him, he has also signed the verification received
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from the Police as Ex.PN. Thereafter another application Ex.PO was also presented by the police. The Statement of Raja Muhammad Sharif (deceased), Ex.PQ was recorded in his presence by SHO/SI. In cross-examination, he deposed that he prepared the injury sheet, Ex.PM. He has also written the words very dangerous" upon the report of the police. The death of the deceased occurred on 10.06.2001 at Al-Shifa International Hospital Rawalpindi and at that time, he was also present there and also recorded the dying declaration of the deceased as Ex.PQ, which was also verified by the doctor. 25. P.W.17, Ch. Mazhar Hussain, SHO/SI, recorded his Statement before the Trial Court wherein he stated that he was appointed as SHO Police Station Sehnsa in May, 2001. On 27.05.2001, the complainant presented a written report to Shahzad Sarwar, ASI, who forwarded the same to him for registration of the case, upon which a case under Illat No, 54/01 was registered. Application Ex.PA was moved upon which F.I.R. Ex.PEE was registered, thereafter he went to hospital for investigation and then to the place of occurrence. He prepared the recovery memos. of blood-stained clay, Ex.PC, three crime empty Ex.PD, site plan Ex.PFF, blood-stained clothes Ex.PE, crime weapon 222-bore rifle Ex.PG, Statement of deceased Ex.PQ, Chaddar of deceased Ex.PH, death report, Ex.PGG. in cross- examination, he deposed that it is not true that the application Ex.PO and Statement of deceased Ex.PQ were prepared fictitiously after consultation of Dr. Shahnawaz. 26. P.W.20, Syed Arif Hussain Kazmi, Inspector SHO Stated in his Court's Statement that he was posted as SHO at Police Station Sehnsa and he alongwith Patwari Halqa prepared the site plan and also recorded the Statement of the Patwari Halqa under Section 161, Cr.P.C. Post-mortem report was received from CMO and another parcel was also handed over to him where a pellet was recovered from the body of the deceased as Ex.PF. Challan Ex.PN/A was prepared. He also received the Forensic Science Laboratory report, which was also made part of file as Ex.PP. In cross- examination he deposed that before preparation of the challan he got examined the same from Ch. Sabir Hussain the then DSP and accused, Iftikhar was challaned. He further Stated that although six accused-persons were nominated in the F.I.R., however, after investigation except accused Iftikhar all the other accused namely `Tariq Mehmood' Muhammad Ilyas, Liaqat, Ghazi Allah Ditta and Naseer were found innocent in investigation and they were exonerated from the case.…
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