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Petitioner: MUHAMMAD TAJ alias KALA VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Nasir-ul-Mulk, Mahbub Ali Khan, Jawaid Nawaz Khan Gandapur Title: MUHAMMAD TAJ alias KALA vs THE STATE Case No.: Criminal Appeal No,12, Criminal Revision Nos.5 and 13 of 1993 Date of Judgment:1996-05-30 Reported As: 1997 P Cr. L J 1043 Result: Appeal accepted
JUDGMENT
JUDGMENT ' NASIR-UL-MULK, J.--- Criminal Appeal No,12 of 1993, Criminal Revision No,5 of 1993 and Criminal Revision No,13 of 1993 have been placed before me for my opinion under section 429, Cr.P.C. After two Honourable Judges sitting in Division Bench heard the matters but gave divergent opinions; one Honourable Member of the Bench dismissed Criminal Appeal No,12 of 1993 filed by Muhammad Taj against his conviction and sentence and at the same time also disallowed Criminal Revision No,13 of 1993, preferred by Abdul Jabbar for enhancement of the sentence of Muhammad Taj, and Criminal Revision No,5 of 1993 of Muhammad Taj, against the acquittal of Khalid Mahmood in cross-case. The other Honourable Member allowed Criminal Appeal No,12 of 1993 and set aside the conviction and sentence of Muhammad Taj while dismissing Criminal Revision No,13 of 1993 and Criminal Revision No,5 of 1993. 2. Muhammad Taj and five others, namely, Akram, Taj, Nazim Zia, Amjad Pervez, Sultan Afsar and Abdur Rehman were jointly tried by the Sessions Judge, Haripur under section 302/324/148/149, P.P.C. For forming unlawful assembly and committing rioting while armed with deadly weapons, for committing the murder of Khan Afsar deceased by firing at him and for attempting at the lives of Khadim Hussain, Muhammad Rafiq and Wahid Akhtar by effectively firing at them. On 31-1-1993 the trial Court acquitted all the accused but Muhammad Taj who was convicted and sentenced as under:-- (i) Under section 302, P.P.C. For causing death of Khan Afsar convicted and sentenced to imprisonment for life and to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to undergo further imprisonment for 6 months.
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(ii) Under section 324 for causing injuries to Khadim Hussain to suffer rigorous imprisonment for ten years and also to pay a fine of Rs,1,000 or in default of payment of fine to suffer rigorous imprisonment for a further period of six months and also to pay Rs,10,000 to Khadim Hussain injured as compensation in the form of 'Daman'. (iii) Under section 324 for causing injuries to Wahid Akhtar to suffer rigorous imprisonment for ten years and also to pay a fine of Rs,1,000 or in default of payment to suffer rigorous imprisonment for further period of six months and also to pay Rs,10,000 to Waheed Akhtar injured as compensation in the form of 'Daman', and (iv) Under section 324 for causing injuries to Muhammad Rafiq to suffer rigorous imprisonment for ten years and also to pay a fine of Rs,1,000 or in default of payment to suffer rigorous imprisonment for further period of six months and also to pay Rs,10,000 to Muhammad Rafiq injured as compensation in the form of 'Daman'. ' All the sentences of imprisonment were ordered to run consecutively. In case of non-payment of ' Daman' the convict was to remain in prison to undergo simple imprisonment even after the expiry of the substantial sentences, until payment. The trial Court had also charged and tried Khalid Mahmood under section 337-A(ii), P.P.C. In cross-case for inflicting axe blow on Akram Taj but he was acquitted of the charge. 3. The prosecution case which gave rise to Criminal Appeal No,12 of 1993 is that on the night between 10-7-1991 and 11-7-1991 Khan Afsar along with Khalid Mahmood, Farman Elahi and his servant Khadim Hussain, all residents of Akbar Abad had gone to Village Ladha to see a musical performance of dancing girls arranged to celebrate the marriage of the two sons of one Malik Muzaffar. During the performance a stone was thrown into dancing area, which angered Muhammad Taj, who was armed with .12 bore shot gun, and suspecting Khan Afsar and company of the deed abused them. The matter was temporarily settled. However, in the early hours of 11-7- 1991 at about 3-15 a.m. After the performance had ended, Muhammad Taj alongwith his companions, Akram, Taj, Abdur Rehman, Nazim Zia, Amjad Parvez and Sultan Afsar attacked the members of Khan Afsar's group. Muhammad Taj fired with his shot gun at Khan Afsar which hit him and at the same time Khadim Hussain, Wahid Akhtar and Muhammad Rafiq also received fire-arm injuries. Khalid Mahmood thereafter, took Khan Afsar to the Civil Hospital, Haripur, situated at a distance of 13/14 kilometres from the place of occurrence, where Khan Afsar reported the incident to Arif Jived, A.S.-I., who was on Gasht and had arrived at the hospital after receiving information about the crime. The information furnished by Khan Afsar was reduced into writing at 4-30 a.m. Duly thumb-impressed by Khan Afsar and signed as an attesting witness by Khalid Mahmood. Murasila of the report Exh.P.A./1 was sent to the Police Station Kot Najibullah for registration of the case which was registered at 5-30 a.m., vide F.I.R. No,104, Exh.P.A. After initial medical examination at the Civil Hospital, Haripur by Dr. Shaukat Hussain, Khan Afsar was shifted to the District Headquarters Hospital, Abbottabad'as his condition was serious. At the District Headquarters Hospital, Abbottabad, Khan Afsar succumbed to his injuries. 4. Meanwhile the other three injured were also brought to the hospital, who were treated by the same doctor (Dr. Shaukat Hussain) between 5-15 a.m. To 5-20 a.m. It may be mentioned here that Khan Afsar had also been examined at 5-15 a.m. On the same day at 7-30 a.m. Akram Taj accused was also medically examined by Dr. Shaukat Hussain at Civil Hospital, Haripur. 5. Arif Javed, A.S.-I. After having sent the Murasila for registration of the case worked on with the investigation. He prepared the injury-sheets Exh.P.W.5/1, Exh.P.W.5/2, Exh.P.W.5/3 and Exh.P.W.5/4 of Khan Afsar, Khadim Hussain, Muhammad Rafiq and Waheed Akhtar, respectively. He took into possession shot gun vide recovery Memo. Exh.P.W.3/1 at the pointation of Muhammad Taj accused and prepared site plan Exh.P.W.5/8 of the house from where the recovery was effected. The remaining investigation was taken over by Muhammad Jamshed Khan, S.H.O. Of the police station.
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He prepared the site plan Exh.P.W.10/1 and during spot inspection took into possession one bloodstained plastic envelope, two pieces of cloth, one cuff of the shirt, all bloodstained, through Memo. Exh.P.W.7/1. The S.H.O. Took into possession a stick produced by Abdur Rehman accused from his house while in custody through Memo. Exh.P.W.5/7. A site plan of this recovery was prepared vide recovery Memo. Exh.P.W.10/3. The blood-stained clothes of the deceased and sealed phial containing 43 pellets and a card board brought from hospital by Khan Draz were produced to the S.H.O. Who took them into possession by recovery Memo. Exh.P.B. Muhammad Taj accused was arrested by the Head Constable from his unit and produced before the S.H.O. Whereas the other accused were arrested by him directly. The blood-stained articles were sent to the Chemical Examiner, whose report is Exh.P.W.10/5. Complete challan was also submitted to the trial Court by Muhammad Jamshed Khan, S.H.O. 6. Dr. Shaukat Hussain who had examined all the injured at Civil Hospital, Haripur gave the following opinion about the injuries sustained by Khan Afsar, who was still alive: (1) Fire-arm entry wound at hypogastrium 2" x 2-1/2" in diameter blackening of edge. Internal viscera injured and visible from the wound. Bleeding excessively. (2) Six independent fire-arm entry wounds 0.1" x 0.2" diameter on the left side of wound No,1 over the abdomen. (3) Fire-arm wound with blackening of edges on the ventral surface of right wrist-joint, tend and vessels injured. Bone fractured clinically. Bleeding excessively. (4) 18 to 20 fire-arm entry wounds on the interior and medical surface of left forearm and elbow with blackening in edges of many entry wounds. Elbow swollen and immobile. ' Injuries caused by fire-arm. All grievous. Patient is shock and serious. Duration was two to three hours. Referred to D.H.Q. Hospital, Abbottabad after first aid. ' Dr. Nayar Bashir who had conducted the post-mortem examination of Khan Afsar deceased at the D.H.Q., Abbottabad found the following:-- (1) A stitched lacerated wound on pubic horizontal 2-1/2" long 1-1/2" above penis. (2) Crush injury on medial side of right hand and right forearm. Vessels crushed, bone ulna broken. Injury is 3" long and 1-1/2" in breadth. (3) Thirty perforations on anterior side of left forearm swelling is positive. Blackening positive. All entry wounds. No exit wound found. Fourteen pellets removed. (4) Six perforations on anterior side of left upper arm. Blackening present. All entry wound. No-exit wound. Six pellets recovered. (5) Four abrasions on interior side of left forearm. (6) Perforation on anterior side of left shoulder joint and 3" inferio medially. Another perforation 1/4 c.m. x 1/4 c.m. In size. No exit wound. (7) Four perforations on left side of pubic 1/4 c.m. x 1/4 c.m. In size. No exit wound. ' In the opinion of the doctor the cause of death was on account of multiple firearm injuries leading to excessive haemorrhage and loss of blood plus rupture of urinary bladder. Excessive internal and external haemorrhage leading to hypoolemic shock leading to cardic pulmonary rest and ultimately death of the person Probable time between injury and death was estimated between 6 hours. ' Dr. Shaukat Hussain, who had also medically examined the other injured, found two entry wounds on the person of Khadim Hussain and Muhammad Rafiq and 4 entry fire-arm wounds on Waheed Akhtar. Three injuries were found on Akram Taj accused, one lacerated wound 3" long on the vertex bone deep, a superficial skin deep lacerated wound over the left forearm and a bruise on the back. The injuries were opined to have been caused by blunt weapon. The Sessions Judge framed the charge on 2-6-1992, to which the accused pleaded not guilty and chose to defend themselves. The prosecution case mainly rested on the dying declaration that was ultimately incorporated in the
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F.I.R., the ocular testimony of Khalid Mahmood (P.W.7), and the two injured eye-witnesses Abdul Waheed (P.W.8) and Khadim Hussain (P.W.9), the other injured eye-witnesses Muhammad Rafiq was abandoned. Support was also sought from the recoveries and the medical evidence. For this purpose the prosecution examined 12 witnesses. 7. The defence did not produce any witness. However, Muhammad Taj accused in response to a question under section 342, Cr.P.C. As to what was his statement and why was he charged, made the following statement:-- "I am innocent and falsely been involved in the case. I alongwith my brother Akram Taj was present in the musical function of the marriage ceremony of the son of Muzaffar Khan where the girls were dancing. During musical function an altercation took place between deceased and us over pelting stones on the dancing girls. After the musical function when I was present in the fields of Ghulam Muhammad, I was beaten by Khalid and deceased Khan Afsar. My brother Akram Taj also reached the spot on my hue and cry over which Khalid P.W. Dealt an axe blow and injured him. Khan Afsar deceased also dealt a blow with butt of a gun to my brother Akram Taj and injured him. There was a pitch darkness at the scene of occurrence. About 100 persons gathered at the spot and during quarrel some unknown persons opened the fire due to which the injured and the deceased sustained the injuries. As there were many persons in the function armed with shot gun and other weapons and in the darkness some unknown persons opened the fire. The occurrence took place when my brother was going towards the place where the cattle were being slaughtered for the morning meal." ' Similar answers were given by the other accused to the same question put to them under section 342, Cr.P.C. 8. Mr. Abdullah Jan Mirza, the learned counsel representing the convict Muhammad Taj in Criminal Appeal No,12 of 1993 and Criminal Revision No,13 of 1993 and petitioner Akram Taj in Criminal Revision No,5 of 1993, confined his arguments to the first two matters and used criminal revision against acquittal of Khalid Mahmood to make out a case of self-defence. As to the merits of the appeal the learned counsel argued that the dying declaration is a suspect document because; firstly, it was recorded at 4-30 a.m. Whereas Khan Afsar was examined at 5-15 a.m. By the doctor who had stated that he was present in Emergency Room when Khan Afsar was brought by Arif Javed, A.S.-I. Whereas P.W. Khalid Mahmood, who had accompanied Khan Afsar to the hospital, in his cross-examination had claimed that the injured had already been given First Aid treatment before the arrival of the A.S.-I.; secondly, it is not clear as to when and where was the dying declaration recorded and thirdly, there is no evidence that Khan Afsar was in his sense at the time of making the report. Reference was made to the case-law in Sher Bahadur v. State 1972 SCMR 651, Sikandar v. State 1990 PCr.LJ 396 and Muhammad Anwar v. State PLD 1984 Lah. 132 for the proposition that a dying declaration is a statement of an interested person and requires close scrutiny as well as corroboration. In this context reference was also made to the testimony of P.W. Khalid Mahmood, who in his cross-examination had stated "after recording my report the local police let me free and I took the deceased to D.H.Q. Hospital, Abbottabad". From this disclosure it was argued that the report was made by P.W. Khalid Mahmood and not by Khan Afsar deceased. The ocular testimony, it was contended, is intrinsically contradictory as the three eye-witnesses had given materially different versions of the occurrence. None of the witnesses it was pointed out had disclosed the manner of attack in their examination-in-chief, and while in their cross- examination P.W. Khalid Mahmood and Abdul Wahid had alleged the pelting of stones before the firing P.W. Khadim Hussain totally denied the stone pelting in his cross-examination. In view of the principle laid down in Abdul Ghafoor v. The State 1982 SCMR 162 the benefit of suppression by complainant party pf the actual happening it was maintained should be given to the accused. In this context the learned counsel also pointed out to the suppression of injury to Akram Taj accused
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and the cause for the sustaining of injury by blunt means by the deceased. Ocular testimony, it was argued, was also inconsistent with the medical evidence as blackening was found on the injuries of the deceased, which could not have been caused from 22 feet, which according to the site plan was the distance between Muhammad Taj and Khan Afsar at the time of firing. The learned counsel further urged, and did so vehemently, that the prosecution has not proved positively that there was any artificial light, as the source of any such light has not been taken into possession by the Investigating Officer and admittedly, according to the statement of P.W. Khalid Mahmood, there is no electric power in village Laddah. In the alternative the learned counsel maintained that the injuries of Akram Taj accused, for which a cross-case was also registered, coupled with the evidence that there was stone pelting, seen in the light that the occurrence was a result of sudden flare up between the parties, was sufficient to extend the right of self-defence to the accused. Reliance was placed on Muhammad Ismail v. Liaqat 1984 SCMR 1053, Niamat v. State 1984 PCr.LJ 120 and State v. Juma PLD 1989 Pesh. 149. The learned counsel assailed the awarding of consecutive sentences by the trial Court and submitted that these are illegal under section 35, Cr.P.C. And in the light of the rule laid down in Javed Shaikh v. The State 1985 SCMR 153, Mst. Nazan v. The State 1996 PCr.LJ 95. 9. Mr. Ghulam Mujtaba Khan Jadoon, Advocate who appeared for the complainant in Criminal Appeal No,12 of 1993 and for the petitioner in Criminal Revision for enhancement of sentence and for the accused-respondent Khalid Mahmood in criminal revision against acquittal, contended that there was no question of mistaken identity as the occurrence had taken place soon after the musical performance ended which could only have taken place in a well-lit place. It was pointed out that the complainant party had no previous enmity with the accused nor with anybody else and, therefore, there was no reason for false implication. It was next argued that even the accused in their statement under section 342, Cr.P.C. Had neither denied their presence nor the event but had only twisted it in their favour to make out a case for self-defence. The prosecution, it was maintained, had established its case beyond reasonable doubt through the dying declaration and ocular testimony of three eye-witnesses, two of whom were injured in the incident. Minor discrepancies, it was contended would not falsify the prosecution case as they can aptly be attributed to human frailty reliance was placed on Khaliq Dad v. State 1984 PCr.LJ 1491. As for the quantum of sentence the learned counsel submitted that sudden flare/up could not be made the cause of awarding lesser sentence as the deceased was fired at much after the first incident that took place during the performance. ' Mr. Adam Khan'Jadoon, Advocate appearing for the State reiterated the arguments advanced by the learned counsel for the complainant. ' Since the F.I.R. In this case is based on the dying declaration the authenticity of which has been seriously challenged by the defence, it will be appropriate to examine the declaration first. The tenor of the case-law cited at the Bar is to the effect that great caution is to bes taken before reliance is placed off a dying declaration as it is made by an interested person and in the absence of the accused, and though a dying person is expected not to make a misstatement but cases are not uncommon when the dying man had made false declaration. ' These words of caution are rules of prudence and for proper dispensation of criminal justice must be adhered to. In the present caw, however, the factors which have given rise to this rule of prudence are to significant extent absent. The person who was present at the time of the dying declaration, namely, Khalid Mahmood was himself an eye-witness and, therefore, there was no need for manipulation of a dying declaration to be made the basis of the F.I.R. As the report could have been lodged by Khalid Mahmood. Additionally the complainant party had in their armour 2 injured eye-witnesses, Khadim Hussain and Waheed Akhtar who had also reached the hospital about the same time and who could also have made the report, which would have been of no
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lesser value. More significantly the deceased had no previous enmity with the accused party and only one man had been charged for firing which hit 4 persons, the possibility of false implication by the dying man was, therefore, minimal. It is in this background that the dying declaration in question is to be scrutinized. It is correct that neither the Investigating Officer nor the doctor had declared that Khan Afsar was in his senses at the time when the dying declaration was made. But from the absence of positive evidence to this effect no inference can be drawn to the contrary. No question was put by the defence counsel to the doctor that the injured Khan Afsar was not in his senses when he was being examined in the Civil Hospital at Haripur nor was the Investigating Officer cross-examined on this aspect. Rather the P.W. Arif Javed in cross-examination voluntarily stated that the injured was in senses. As a matter of fact no argument was also advanced at the Bar that the injuries sustained by Khan Afsar were of a nature as to render him speechless. Therefore, in the absence of questioning by the defence in the cross-examination of the two material witnesses of the capability of the injured to speak, it must be accepted that he could speak. There is an apparent discrepancy between the statement of P.W. Dr. Shaukat Hussain, the Medical Officer at Civil Hospital, Haripur, and P.W. Arif Javed, A.S.-I. To the extent that the former had stated that the injured was brought by the A.S.-I. When he was already in the Emergency Room whereas the later claims that the injured was already in the hospital when he arrived. This inconsistency is not very material as in the confusion that follows when a dying victim of a crime is brought to the hospital the exact sequence of the event taking place therein cannot be expected to be followed by those involved in them. ' Furthermore, the discrepancies will not reflect upon the credibility of the dying declaration as admittedly it was neither made before, nor signed by, the doctor. Capital was being made by the defence out of the statement of P.W. Khalid Mahmood in cross-examination that he was allowed to go by the police after he had made the report. It is not clear from the line of cross-examination that the witness was made to understand that the question related to the F.I.R. The use of the word 'report' by Khalid Mahmood was not used in the sense of F.I.R. Being an eye-witness he may also have given information about the incident after the dying declaration was recorded. Khalid Mahmood had more than once in his statement confirmed that the dying declaration was made in his presence and that he had signed it. The objections to the dying declaration are, therefore, without substance. Since the dying declaration was made by the deceased soon after he was injured, in the presence of a Police Officer and an eye-witness, there is no reason to disbelieve it, particularly when there is total absence of previous enmity and reasons for false implication. ' Out of the four eye-witnesses of the occurrence three were examined by the prosecution, two of them injured. The narration of the occurrence by all the three witnesses appear to be materially similar and also consistent with the story set up in the F.I.R. The presence of the two injured eye- witnesses at the place of occurrence stands established by their injuries whereas the presence of P.W. Khalid Mahmood has been admitted by all the accused in their statements recorded under section 342, Cr.P.C. Wherein they have alleged that he had caused the injury to Akram Taj soon after the musical performance. Though Khalid Mahmood is related to Khan Afsar and P.W. Khadim Hussain was his servant and P.W. Abdul Waheed had no such relationship, none of the eyewitnesses were on inimical terms with the accused par_y. The attack on the veracity of the eye-witnesses was focussed by the defence on their failure to sufficiently describe the event, some inconsistencies and suppression of the actual happening. The narration of the event given by all the three witnesses in their examination-in-chief is consistent and sufficiently detailed. In the cross-examination P.W. Khalid Mahmood had admitted to pelting of stones at the accused party in self-defence. P.W. Abdul Waheed confirms this whereas P.W. Khadim Hussain denies the pelting of stones before the firing. From the combined reading of the testimony of the three witnesses it does appear that pelting of stones had taken place, either before, during or after the firing, but that is a
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matter to be discussed later when examining the plea of self-defence of the convict. For the present it is sufficient that such an immaterial inconsistency would not create doubt about the presence of the eye-witnesses at the scene of occurrence, which is otherwise well-established. All the three eye-witnesses were present at the scene of occurrence and had visited the crime. The truthfulness of their testimony is, therefore, free from doubt. ' The argument that the medical evidence is inconsistent with the site plan and the ocular testimony has no substance. According to the site plan, which was prepared at the instance of P.W. Khalid Mahmood, the distance between point No,5, where the deceased was present at the time of firing, and point No,6 from where Muhammad Taj had fired his first shot, is given to be 5 paces. The medical evidence shows blackening on some injuries found on the person of the deceased. During the cross-examination of P.W. Khalid Mahmood he claimed that the distance between the two points was 2 to 3 paces. No further cross-examination was conducted on this aspect. It is understandable that an eyewitness may commit an error of one or 2 paces while fixing the points between the victim and the assailant when about 10 persons were involved in the quarrel in which stones were also pelted. Considering the fact that a shot gun, which has a long…
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