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Petitioner: SHER DIL And Others VS Respondent: THE STATE And Others
Court Name: Federal Shariat Court Judge(s): Ch. Ejaz Yousaf, Dr. Allama Fida Muhammad Khan, Fazal Ilahi Khan. Title: SHER DIL And Others vs THE STATE And Others Case No.:Criminal Appeal No.38-I of 1999Criminal Appeal No.38-I of 1999Criminal
JUDGMENT
Reported As: 2003 YLR 110 Result: Order accordingly Judgment JUDGMENT CH. EJAZ YOUSAF, J.---This judgment will dispose of Criminal Appeal No.38/1 of 1999 filed by appellant Sher D.1, against his conviction and sentences, through Mr. Abduliah Jan Mirza, Advocate, Criminal Appeal No.40/I of 1999 filed by Abdul Razzaq complainant against acquittal of accused persons namely Riafat, Pervez, Khalil-ur-Rehman's, Rafaqat and Fayyaz, Criminal Appeal No.24/P of 1999 filed by Advocate-General, N.-W.F.P. Against acquittal of aforenamed accused persons and Criminal Revisions bearing Nos.5/P and 6/1 of 1999 filed by Abdul Razzaq complainant and Advocate-General N.-W. F. P., for enhancement of sentence inflicted on respondent/appellant Sher D.1, as all these appeals and revisions arise out of the same judgment dated 26-2-1999 passed by the learned Additional Sessions Judge, Abbottabad whereby Sher D.1 appellant was convicted under section 396, P.P.C. And sentenced to undergo imprisonment for life (25 years) and to pay a fine of Rs. 1,00,000 or in default thereof to further undergo R.I. For live years and the accused persons name above, were acquitted of the charges. Benefit of section 382-B, Cr.P.C. Was. However. Extended to appellant Sher D.1. It was also ordered that on recovery of tine, half of the recovered amount be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. 2. Briefly stated the prosecution case as gathered from the record is that on 26-4-1997 at 22-00 hours, at Mohallah Jogan, one Abdul Razzaq son of Malik Ghulam Qadir the complainant, met with S.H.O. Muhammad Rafique of Police Station Nawan Shehr and reported to him that at 21-30 hours on the same day, the complainant and his brother namely Abdul Majid, Riaz-ur---Rehman's and Jamil-ur-Rehman's were present in their house situated in Mohallah Jogan. In the meanwhile, the door bell rang whereupon Jamil-ur-Rehman's went towards the gate. No sooner said Jamil-ur-
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Rehman's opened the gate then four persons who were armed with pistols and rifles forced their entry into the house by pushing Jamil-ur-Rehman's aside and called out that no one should move. It was further alleged by the complainant that as they i.e. Complainant and his companions tried to catch hold of the culprits, they started firing. One of them fired at his brother namely Abdul Majid and the bullet landed on his chest. Resultantly, he fell down to the ground and after some time succumbed to the injury, at the spot. It was further alleged by the complainant that three of the culprits were able to make good their escape while one of them was apprehended at the spot alongwith a pistol and a National Identity Card in the name of some Ghulam Mustafa son of Muhammad Yousaf resident. Of Mohallah Shoaibzai. It was further claimed by the complainant that the occurrence was witnessed by him and his aforenamed companions. The complainant charged all the four persons vicariously for committing house trespass and also for committing Qatl-e-Amd of his brother Abdul Majid. Murasila/report i.e. Exh.P.A./1 was accordingly written and sent to the police station for registration of the case, on the basis whereof formal F.I.R. Bearing No.135, dated 26-4-1996 under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Hudood Ordinance) read with sections 419, 420, 468, 471/34, P.P.C. And 13, Arms Ordinance was registered at Police Station Nawan Shehr and investigation was carried out in pursuance thereof. In the course of investigation it came to light that name of the culprit who was apprehended at the spot and was subsequently arrested by the police, was Sher D.1 son of Muhammad Alam resident of Nawan Shahr and not Ghulam Mustafa as was found written in the National .Identity Card allegedly taken from his possession at the spot. As per prosecution version. Accused Sher D.1 in the course of his 161, Cr.P.C. Statement disclosed before the Police that he himself, Pervez, Rafaqat, Khalil, Riafat, Arshad and Fayyaz had, in the cattle shed of Pervez, chalked out a plan on the evening of the alleged occurrence, for committing dacoity in the house of Abdul Majid which was shown to them by said Pervez as he i.e. Abdul Majid according to Pervez was a wealthy person and was his neighbour, therefore; they all armed with pistols (except Khalil who was armed with a rifle) went to the house, pointed out by Pervez, who himself returned after making pointation. That he i.e. Sher D.1, Rafaqat, Khalil and Arshad went on the gate of the house, while Fayyaz and Riafat stood outside. Rafaqat gave bell, whereupon a person came out to open the gate who was taken on gun point by them. In the meantime, however, three more persons came at the spot and tried to catch hold of them. Resultantly, they made firing and as he was overpowered, in order to get rid from their hold, he tired straight on the person and yet made another tire but he was not aware as to whether the same hit some one or not while, the third cartridge stuck up in the pistol. He was apprehended and beaten due to which he became unconscious. On the disclosure allegedly made by Sher D.1 rest of the accused persons except Arshad were also apprehended. Two of them Riafat and Pervez also allegeably made confessions before Judicial Magistrate. On the completion of investigation the accused persons were challaned to the Court for trial. 3. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial. 4. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons, produced 11 witnesses. In all. P.W.1 Muhammad Ishaque Moharrir Head Constable had on the receipt of Murasila/complaint i.e. Exh.P.A./1 had incorporated contents thereof into the formal F.I.R. Exh.P.A. P.W.2 Muhammad Ravail is a marginal witness of the recovery memo. Exh.P.W.2/1 vide which a National Identity Card Exh.P.1 and Domicile Certificate Exh.P.2 were recovered and taken into possession by the police from the house of one Shamraiz brother-in-law of accused Sher D.1, at his instance. He is also a marginal witness of the recovery memo. Exh.P.W.2/2 vide which 7 mm rifle Exh.P.3 was recovered by the police from the possession of accused Khalil-ur-Rehman's, at his pointation, from a Kassi. P. W.3
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Muhammad Shafique is a marginal witness of the recovery memo. Exh.P.W.3/1 vide which blood with the help of a cotton was taken by the Investigating Officer from the place of occurrence. He is also a marginal witness of the recovery memo. Exh.P.W.3/2 vide which two .30 bore empties i.e. Exh.P.4 were taken into possession by the Investigating Officer from the place of occurrence. He is also a marginal witness of Exh.P.5 vide which on the same day, the police had taken into possession of .30 bore pistol produced by the complainant allegedly belonging to Sher D.1 and snatched from him by Riaz-ur-Rehman's P.W. Alongwith 2 magazines Exh.P.6, one magazine Exh.P.7 having one live cartridge, a bandolier Exh.P.8, 24 live cartridges Exh.P.9 and an I.D. Card Exh.P.10 in the name of Ghulam Mustafa son of Muhammad Yousaf, while photograph of accused Sher D.1 was on it. P.W.3 is also a marginal witness of the recovery memo. Exh. P. W.3/4 vide which an empty Exh.P.11 from the path, outside the house, two empties Exh.P.12, three live cartridges of .30 bore Exh.P.13 and three empties Exh.P.14 were taken into possession by the Investigating Officer. He is also marginal witness of the recovery memo Exh P.W.3/5 vide which a white Bunyan Exh.P.15, a shirt Exh.P.16 and a sheet --(Chaddar) Exh.P.17, all blood-stains( belonging to the deceased and produced by Constable Mehboob were taken into possession by the Investigating Officer. He is also a marginal witness of the pointation memo. Exh.P.W.3/6 prepared by the Investigating Officer on the pointation accused Riafat alias lagga who, while :: custody had on 1-5-1997 led the police party to a cattle shed belonging to Pervez accused wherein they all had allegedly planned to commit the offence. P.W.4 Mehboob F.C. Had escorted the dead body from the place of occurrence to the mortuary. After post--mortem examination, the doctor had handed him over a white Banyan, one shirt and a Chadar all blood-stained, which he produced before the I.O. Who took the same in his possession vide memo. Exh.P.W.3/5. P.W.5 Ijaz is a marginal witness of the recovery memo. Exh.P.W.5/1 vide which police had recovered a .30 bore pistol i.e. Exh.P.18 from the house of Pervez, on the pointation and instance of accused Rafaqat. P. W.6 Mst. Farah Jamshaid Khan, Judicial Magistrate had on 3-5-1997 recorded confessional statement i.e. Exh.P.W.6/2 of accused Riafat. She confirmed that she had recorded the statement in question after fulfilling all the legal requirements. In the course of her cross-- examination she admitted the suggestion as correct that having been inquired, as to how many days he remained in police custody`' accused Riafaq had stated before her that he was in police custody for four days. P.W.7 Dr. Mustafa Ali had on 27-4- 1997 at 8-35 --hours, examined the de Majid and found as under:-- A middle aged, well built male lying supine on post-mortem table wearing blood and stand stained light brownish Shalwar and Qamiz eyes and mouth closed, blue coloured cotton cloth around face. Black hairs and moustaches. Rigor mortis and lividity developed. Wound of entry (1)A wound on left side of chest 2" medial to left nipple and in 6th intercastal space, starting towards left side. Measuring 1-1/2" x 1". No blackening or tattooing seen around the wound. Wound of exit (1)A wound on tip of left shoulder, measuring 1-1/2" x. 1-1/2" margins everted. Internal examination Thorax---Walls, ribs and cartilages---wound of entry in 6th intercastal space medial to left nipple. No fracture of rib or cartilage. Pleaurae---pierced. Left lung----collapsed. Pericoridum and heart-- --pierced left ventricle shattered. I found fracture of upper end of humerus. " 5. On the conclusion of prosecution evidence the learned defence counsel tiled two applications for the summoning of Dr. Khalid Javed, Medical Officer, D.H.Q. Hospital, Abbottabad, Dr. Aun Ali, Medical Officer, D.H.Q. Hospital, Abbottabad and Dr. Mustafa Ali, C.M.O. Ayub Teaching Hospital, Abottabad, as C.Ws., as according to him their evidence was essential. They were summoned accordingly.
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Dr. Khalid Javed, while appearing as C.W.1 deposed that he had on 30-4-1997 examined Riafat accused and found entrance wound 1/2 c.m. x 1/2 c.m. In front of his right upper thigh, with inverted margins, sides were of brownish colour. He also found an exit wound 1 c.m. x 1 c.m. With averted margins, clotted wounds (bleeding) nature of injuries was simple and time elapsed was 4 to 5 days. Distance tired from was distant area. Kind of weapon used was tire-arm. He produced his report as C.W.1/1. He further deposed that on 4-5-1997 he had also examined Riafat accused and found that he was suffering from left renal colic. He produced his report as C.W.1/2. On 4-5-1997 he had also examined Khalil-ur-Rehman's accused and found a tire-arm injury over left tuberosity of his left foot just making laceration about 2-1/2 c.m. Size. Nature of injury was simple and weapon used was fire--arm. Duration was about 8 to 10 days. He produced his report as C. W.1/3. On 4-5- 1997, he also examined Fiaz accused and found that his left foot was swollen and tender with restricted movements. He advised X-Ray of the foot and referred him to Male Orthopaedic Ward for the needful. In his opinion the weapon used was blunt. He produced his report as Exh.C.W.I/4. Dr. Aun Ali C. W.2 had on 1---5-1997 examined Parvez accused and prepared injury sheet i.e. Exh.P.W.8/1. As per his examination the accused was complaining of pain in his right knee-joint, which was found tender to touch. X-Ray was advised, however, no evidence of fracture on X-Ray or any other deformity was found. He produced his report as C.W.2/1. Dr. Mustafa Ali C.W.3 had examined accused Sher D.1 and prepared injury sheet as Exh.P.W.II/3. He found an abrasion on his nasal bridge and also an abrasion on anterior aspect of his left leg, midway. As per his report the patient was unconscious. Weapon used was blunt. He produced his report as C.W.3/1. In the course of his cross-- examination C.W.3 deposed that nature of both the injuries were simple and artificial and could not have led to unconsciousness. 6. All the accused persons in their statements under section 342. Cr.P.C. Denied the charge and pleaded innocence. They however, failed to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C. Accused Sher D.1 in his above statement denied the recovery of .30 bore pistol, magazines, bandolier, 24 live cartridges of .30 bore and identity card allegedly effected vide recovery memo. Exh.P.W.3/3 by the Investigating Officer and pleaded that recoveries were foisted on him. Accused Parvez denied to have made confession voluntarily and stated that the so-called confessional statement was the result of 3rd degree methods. Riafat accused also denied to have made confessional statement voluntarily, and stated that the confession was extracted from him through coercive methods and was the result of torture. 7. We have heard Mr. Abdullah Jan, Advocate for appellant Sher D.1, Malik Rab Nawaz Noon, Advocate, for the complainant, Mr. M. Sharif Janjua, Advocate for the State and have also perused the record of the case, minutely, with their assistance. Mr. Abdullah Jan Mirza, Advocate, learned counsel for the appellant has raised the following contentions:-- (i)That F.I.R. Was recorded at the spot after due deliberations, consultations and preliminary inquiry, therefore, it was of no value. (ii)That both eye-witnesses i.e. P.Ws.9 and 10 were not present at the place of occurrence, therefore, narration given by them is not surrounded by physical circumstances. (i.e)That the eye-witnesses were interested and partisan. Therefore, their testimony was of no significance. (iv)That so-called retracted confessional statements of co-accused were neither recorded according to law nor were corroborated by any other evidence, rather it were inconsistent with the story narrated in the F.I.R. (v)That the prosecution evidence was disbelieved qua the acquitted accused persons, therefore, the same evidence could not have been relied upon against appellant Sher D.1 without material corroboration.
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Malik Rab Nawaz Noon, Advocate, learned counsel for the complainant as well as the learned State Counsel on the other hand, while controverting the contentions raised by learned counsel for the appellants have urged:-- (i)That appellant Sher D.1 was apprehended at the spot with .30 bore pistol and a bogus National Identity Card, therefore, his participation in the crime was proved. (ii)That it was neither a case of substitution of accused nor was of mistaken identity, therefore, appellant Sher D.1 was rightly convicted for the offence. F.I.R. Was lodged with utmost promptness and all necessary details were given therein. Besides, specific role was attributed to appellant Sher D.1. (i.e)That both the eye-witnesses were independent and natural and had no enmity with appellant Sher D.1 or any other accused person, therefore, their statements were rightly believed by the learned trial Judge. They can by no stretch of imagination, be tagged or dubbed as interested or partisan. (iv)That the medical evidence also fully supported the prosecution version. (v)That the recoveries effected at the spot as well as subsequently at the instance of other co- accused persons too, had strengthened the prosecution case, therefore, the accused persons were rightly convicted for the offence. 8. We have, given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused entire record of the case carefully 9. In order to supplement his first contention that the F.I.R. Was lodged after preliminary investigation, deliberations and consultations. Mr. Abdullah Jan Mriza, Advocate, learned counsel for the appellant Sher D.1 has contended that actually the occurrence took place on or about 8-00 p.m. On 26-4-1997, whereas, in the report, the time of occurrence was wrongly given by the complainant as 9-30 p.m. He maintained that the time elapsed in between 8-00 p.m. To 9-30 p.m. Was utilized by the prosecution to concoct the story and falsely implicated the appellant in the crime. In order to ascertain as to whether or not there is substance in the through the record of the case. It is explicit on record that the F.I.R. Was registered at 22-30 hours whereas the report was lodged at 22-00 hours. In the report it has been mentioned that the occurrence took place at 21-30 hours. In the F.I.R., the distance between the police station and place of occurrence has been shown to be one kilometre. Both the eye-witnesses i.e. P.W.9 Abdul Razzaq and P.W.10 Riaz-ur- Rehman's, while appearing in Court, have categorically stated that the occurrence took place at 9- 30 p.m. And police arrived at the spot at 10-00 p.m. Though both the eye-witnesses, in the course of their cross-examinations were suggested by the defence that the occurrence took place at 8-00 p.m. (which suggestion, being incorrect, was denied by them) yet, in the absence of any evidence to the contrary it, by no stretch of imagination, can be concluded that the occurrence took place at 8-00 p.m. Further though no such question was made to P.W.11 i.e. The Investigating Officer, yet in the course of his cross--examination it was suggested to him (which suggestion too, being incorrect was denied by him) that he had effected recoveries at 9-00 p.m. Before lodging the report. We are unable to understand as to how learned counsel for appellant Sher D.1 has gathered this impression that the occurrence took place at 8-00 p.m. Because the assertion itself, is belied by the record. The fact cannot be lost sight of that in Exh.P.W.7/1 i.e. The post--mortem report, the time of death of the deceased has been shown to be between 9 to 10 p.m. On 26-4-1997 and probable time elapsed between the injury and death mentioned therein is about 30 minutes. It is, further mentioned therein that time elapsed between death and post-mortem examination was within 11 to 12 hours. Now if the time of death of the deceased is computed from the time of his post-mortem on the basis of the had died exactly between 9-00 to 10-00 p., on 26-4-1997 as claimed by both the witnesses. Stand taken by the learned counsel for the appellant that occurrence had take place earlier, therefore, is negated by medical evidence. It would be
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worthwhile mention here that entries made by P. W.7 doctor qua death of Abdul Majid deceased, the post-mortem report, were neither challenged nor disputed at the trial and single question was not put to him the deceased had not died between 9-00 to 10-1 p.m. On 26-4-1997, as found by him. It well-settled that if statement of a witness which was material to the controversy is not challenged then such unchallenged statement should be given full credit and usually accepted as true unless displaced by trustworthy and sound evidence. In this view we are fortified by the following reported judgments:-- (1) Mst. Noor Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300, (2) Qaamar-ud-Din through his Legal Heirs v. Hakim Mahmood Khan 1988 SCMR 819, (3) Muhammad and others v. State 1993 PCr.LJ 1632, (4) Kaleem Ahmad and others v. The State PLD 1993 Kar. 13, (5) Amjad Pervez v. State 1992 ALD 269(2) (6) Mst. Nazeer Begum v. Abdul Sattar PLD 1963 Kar. 465, (7) Karim-ud-Din Shad v. Mst. Fatima Mian Ahmad 1989 CLC 545, (8) Muhammad Ibrahim v. Haji Raza Hussain 1987 MLD 515, (9) Muhammad Mujeeb-ur-Rehman's Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537, (10) Fida Hussain v. Mst. Anwari Khatoon 1985 MLD 110 and (11) Syed Iqbal Hussain v. Mst. Sarwari Begum PLD 1967 Lah. 1138. We are, therefore, unable to subscribe to the contention that the F.I.R. Was lodged after preliminary investigation deliberations and consultations. Because if the time given by the complainant in the report is presumed to be true then hardly any time was left for the prosecution to concoct or fabricate the story or try to improve its case. 10. In furtherance of his next contention that since both the eye-witnesses were not present at the place of occurrence, therefore, narration given by them is not surrounded by physical circumstances, the learned counsel for the appellant Sher D.1 has vehemently contended that statements made by both the eye-witnesses are not only inconsistent with the story narrated in the F.I.R. But are contradictory inter se as well on certain material points, therefore, the only inference possible to be drawn is that the eye-witnesses were not present at the time and place of occurrence. For instance, he pointed out, that:-- (i)P.W.9 has stated that more than 10 or 15 shots were fired by the culprits whereas, P.W.10 has deposed that the culprits fired 15 to 20 shots while the stand taken by the Investigating Officer is that he had recovered two empties from the place of occurrence. Thus, all contradicted each other qua the number of shots fired. (ii)Both the eye-witnesses have stated that as they wanted to overpower the culprits they i.e. The culprit resorted to tiring. Investigating Officer has stated that only two empties were recovered from inside the house. The learned counsel maintained that had statement of the eye-witnesses been true, a lot of empties should have been recovered from inside the room. It appears that the learned counsel for the appellant Sher D.1 has raised the contention under some misconception because, at the trial, it was never the stand taken by the appellant that the eye- witnesses were not present at the place of occurrence. On the contrary, his stance was that both the eye-witnesses were very much present at the spot. Rather, through counter-version, it was suggested to both the eye-witnesses that they had also participated in the crime and resorted to tiring. A perusal of the following portion from the statement of P.W.9 would crystallize the position:-- "It is incorrect to suggest that Majid had obtained loan from the father of Sher D.1 accused and for the settlement of the dispute Sher D.1 accused was summoned by the deceased to his house. It is incorrect to suggest that both Majid and his brother Razzaq came out to settle the matter with Sher D.1 and during talk Majid gave butt blow of pistol on the nose of Sher D.1 accused who tell down
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unconscious. It is wrong to suggest that when his companions came to his rescue. Majid and his companions including Ghulam Mustafa fired at them with pistol causing them bullet injuries." It would also be not out of place to mention here that P.W.10 too, was not only expressly tried to be implicated in the crime but his presence at the place of occurrence was also admitted, by the defence, through the following suggestion:-- "It is incorrect to suggest that ' we' injured them with pistol." Even otherwise the contradictions pointed out by the learned counsel for the appellant, regarding the number of shots fired by the culprits, at the time of occurrence, to our mind. Are neither material nor have any bearing on the case of the present appellant because firstly; the deceased had died as a result of a single gunshot injury allegedly inflicted on him by the present appellant and the firing made by the rest of the culprits remained ineffective and secondly; in the circumstances, it could not have been expected from any of the witnesses to count and remember the number of shots, exactly, fired by all the culprits. The fact cannot be lost sight of and it is the prosecution case that as inmates of the house tried to apprehend the culprits they i.e. The culprits resorted to firing and, while doing so, they fled. The recovery of a number of empties from outside the house suggests that firing was also made outside the house, therefore, the eye--witnesses who both, as per prosecution version, remained inside the room were not expected to know or to count as to how many shots were, exactly tired. Therefore, if one of them has stated that the number of shots tired were 10 to 15 and the other has come out with the reply that it were 15 to 20 then the narration given by them cannot be doubted because they…
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