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Petitioner: NIAZ MUHAMMAD alias NIAZI VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Nasir-ul-Mulk, Abdur Rehman Khan, Jawaid Nawaz Khan Gandapur Title: NIAZ MUHAMMAD alias NIAZI vs THE STATE Case No.:Criminal Appeal No,85, Jail Criminal Appeal No,113 and Murder Reference
JUDGMENT
Reported As: 1996 P Cr. L J 394 Result: Appeal allowed Judgment JUDGMENT ' JAWAID NAWAZ KHAN GANDAPUR, J.--- By this judgment I propose to dispose of the following:-- (i) Criminal Appeal No,85 of 1993 Niaz Muhammad alias Niazi v. The State. (ii) Jail Criminal Appeal No,113 of 1993 Niaz Muhammad alias Niazi v. The State. (iii) Murder Reference No,5 of 1993. 2. The two appeals mentioned above are directed against the order of Additional Sessions Judge, Peshawar (Mr. Shah Jehan Khan), dated 20-6-1993 vide which he convicted the appellant under section 302, P.P.C. And sentenced him to death (to be hanged by the neck till he be dead) and to pay a fine of Rs,1,00,000 (Rupees one lac) or in default thereof to undergo further R.I. For five years. It was also ordered that in case of recovery of fine, half of the amount shall be paid to the heirs of the deceased under section 544-A, Cr.P.C. 3. Murder Reference No,5 of 1993 has also been put up, to .Us for confirmation. 4. Hazarat Ullah son of Sher Afzal (P.W.10) was killed on 29-7-1989 at 6 p.m. The unfortunate occurrence took place on a pathway situated within the limits of Landi Akhun Ahmad which is at a distance of one mile from Police Station Pushtakhara. The incident was reported by Sher Afzal (P.W.10), the father of the deceased, on the same day at about 6-40 p.m. Vide F.I.R. No,366, which was recorded by A.S.I. Farman Ali (P.W.3). 5. The prosecution case, in brief, as disclosed in the first information report that the complainant (P.W.10) was present in his house, when he heard the report of the fire shots, as a result of which he rushed out of his house and saw Niaz Muhammad accused son of Amir Muhammad, duly armed with a Kalashnikov, running towards his (accused) house, that thereafter he saw quite a few people
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gathering at the pathway situated at a little distance and therefore, he also went there. That as soon as he reached there, he found his son Hazarat Ullah lying dead. He noticed that it was the same place from where the accused, after causing the death of his son, had decamped. It has been alleged that the occurrence was witnessed by many persons. 6. The motive for the occurrence was stated to be an altercation, over a petty matter, which took place, between the accused and the deceased, sometime before the occurrence on the eventful day. 7. The investigation of the case was entrusted to S.I. Qazi Saeed (P.W.8). He rushed to the spot and found dead body of the deceased lying there. He prepared injury sheet (Exh.P.W.8/1) and inquest report (Exh.P.W.8/2) in respect of the deceased and sent the dead body to the mortuary, under the escort of F.C. Tehseenullah (P.W.4). There the dead body was identified by Gul Afzal (P.W.12) and thus the post-mortem examination was conducted by Dr. Shahid Kundi, whose report was later proved by Dr. Nazir Khan (P.W.14). 8. In the meantime, the S.I. (P.W.8) prepared the site plan (Exh.P.W.8/3). During the course of spot inspection, he collected the bloodstained earth (Exh.P.1) and took the same into his possession vide recovery memo. Exh.P.B., in the presence of A.S.I. Firdaus Khan (P.W.1). He also took into his possession the blood-stained shirt (Exh.P.2) and Shalwar (Exh.P.3), belonging to the deceased, which were sent by the doctor, mentioned above, who did the autopsy and sealed them into a parcel vide memo. Exh.P.B.1. 9. Thereafter he raided the house of the accused to arrest him and for the recovery of incriminating weapon of offence. However, the accused was not traceable. Accordingly he applied for warrants of arrest (Exh.P.Q.) under section 204, Cr.P.C. And proclamation (Exh.P.R.) under section 87, Cr.P.C. In respect of the accused. All this yielded no result and proved ineffective, as stated by F.C. Muhammad Youths (P.W.6). 10. Sub-Inspector P.W.8 sent the blood-stained earth along with the clothes of the deceased to the Chemical Examiner, for examination and analysis and the report received in this behalf is Exh.P.K. 11. He recorded the statement of the complainant (P.W.10) and also of the eye-witness, namely, Fazal-e-Mola (P.W.11). As a result of what has been stated above the then S.H.O. (now Security Officer) Hidayatullah (P.W.7) submitted challah under section 512, Cr.P.C. Against the accused. 12. It was on 23-4-1990 that, the accused was arrested by Inspector Muhammad Rafique (P.W.9) who obtained his police custody. However, before the expiry of the police custody S.I. Hassan Khan (P.W.13) produced the accused before the Ilaqa Magistrate Tayyab Awan (P.W.5) who recorded his confessional statement (Exh.P.F.) on 25-9-1990, after observing all the legal formalities. 13. After the completion of the investigation, the local police submitted complete challah against the accused in the Court of Additional Sessions Judge, Peshawar for trial. 14. At the trial, the accused pleaded not guilty to the charge leveled against him and claimed innocence. He stated that he was falsely charged for the commission of the offence because of the bitter relationship which existed between the parties. 15. To prove its case, the prosecution produced and examined as many as fourteen 14) witnesses, most of them mentioned above. The accused did not produce any evidence in his defence. After taking into account the prosecution evidence and hearing the parties, the learned Additional Sessions Judge, Peshawar convicted the accused under section 302, P.P.C. And sentenced him-- (a) to death, and (b) to pay a fine of Rs,1,00,000 or in default thereof to undergo further R.I. For 5 years. ' He also directed that in case of the recovery of fine, half of the amount of fine be paid to the heirs of the deceased under section 544-A, Cr.P.C. Hence two appeals were filed by the accused, one directly in this Court and the other through Jail. Murder Reference was also sent for confirmation.
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16. I have heard Barrister Zahur-ul-Haq learned counsel for the appellant and Mr. Muhammad Tahir Hussain Lughmani learned A.A.-G. For State assisted by Mr. Muhammad Safdar Khan, Advocate for complainant and have gone through the evidence, with some degree of care, with their help. The fate of instant case mainly hinges on the ocular testimony of Fatal-e-Mola (P.W.11), confessional statement (Exh.P.F), circumstantial evidence of Sher Afzal/complainant (P.W.10) and the abscondence of the accused, motive apart. 17. At the very outset, the learned counsel for the appellant has attacked the evidentiary value of the statement of Sher Afzal (P.W.10) on the grounds that he is not an eye-witness and had reached the spot on hearing the report of fire shots, while that of Fazal-e-Mola (P.W.11) on the ground that his name does not find mention in the F.I.R. He further alleged that both the witnesses were related inter se as well as with the deceased and that they had strained relations with the appellant and were inimically disposed towards him. According to him none of these witnesses received support/corroboration from any independent source/quarter. Likewise, retracted judicial confession of the accused/appellant is not corroborated, in material, by any other untarnished evidence. He further submitted that, in short the conviction rests, either on no evidence or on evidence which is of no legal consequence, that on this score/account the accused appellant is entitled to be acquitted. 18. A close scrutiny/analysis of the evidence on record, we have noticed an important fact which is that the scene of occurrence is situated on a pathway near which Fazal-e-Mola (P.W.11) son of Muhammad Afzal, owns the land and his contention that he was present at the relevant time in his field and cutting the fodder for his cattle is not only probable but is also natural. He was not cross- examined on this score. On the contrary his presence at the time and place of occurrence is confirmed/established from the very cross-examination directed against him. He was present, when the place of occurrence was inspected by the Investigating Officer, to whom he pointed out various events connected with the commission of the crime. The mere fact that the name of this witness was not mentioned in the F.I.R. Would not, in the circumstances of this case, raise an inference that he has been grafted in this case. Similarly Sher Afzal (P.W.10) who lives in the same locality and the proximity between his house and the scene of occurrence, as is apparent from the site plan (Exh.P.W.8/3), would make him the most natural witness of the occurrence. On his own accord, he stated that he left his house on hearing report of shots and came across the accused/appellant while decamping from the spot duly armed with a Kalashnikov and found his son Hazarat Ullah lying dead at a very short distance of a few paces. He then lodged the F.I.R. At the police station, within 40 minutes, excluding all chances of fabrication of a story or false implication of the culprit. In other words, the accused/appellant was named/ nominated in the F.I.R. With promptitude against whom neither of the said two witnesses had any acrimony, generosity, enmity, hostility, ill-will or spite. They have no motive or bias to depose against the accused falsely. The time of firing, flight of the accused from spot, as seen by Sher Afzal (P.W.10) and then seeing the dead body of his son at a few paces, furnishes an inference that the appellant being the culprit is so probable that a prudent man, under the circumstances of the case in hand, ought to act upon the supposition that it exists. This inference is confirmed by the positive statement of Fazal-e-Mola (P.W.11) who stated that the appellant was armed with Kalashnikov and as soon as the deceased, whom he was following, turned towards him (the accused) as a result of his call, he fired indiscriminately on him. The medical evidence and the post-mortem examination shows that the deceased had received fire entry wounds with corresponding exit wounds, besides the cross- wound. This pattern of injuries is quite consistent with the version given by P.W.11. The motive as alleged was not challenged. The fact of long ascendance of appellant has been duly proved by the evidence of D.F.C. Muhammad Younas (P.W.6) and that of Investigating Officer S.I. Qazi Saeed (P.W.8). Both these factors, undoubtedly, give additional/further strength to the evidence of Sher
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Afzal (P.W.10) and Fazal-e-Mola (P.W.11) and establishes the involvement of the appellant in the crime. Non-recovery of empties or weapon of offence would not dilute the version given by these two truthful witnesses. 19. The matter does not end here. The moment the appellant was charged for committing the murder, he ran away and became a fugitive/absconder. He was arrested on 23-4-1990 by Inspector Muhammad Rafiq (P.W.9) who took his police custody. It was on 25-4-1990 that P.W.9 produced the appellant before the Magistrate, Mr. Muhammad Tayyab (P.W.5) who, after observing all the legal formalities, recorded the confessional statement (Exh.P.F.) of the appellant. The learned counsel for the appellant could not point out any flaw or defect in the manner in which the confessional statement was recorded, in accordance with law. The testimony of the Magistrate, who recorded the confessional statement (though retracted at the trial) of the accused would show, beyond any doubt, that the admission of guilt made by the appellant was not the result of coercion, undue influence, inducement or promise and that it was made by him out of his free will. There is no denying of the fact that the appellant has retracted from the confession but the version given in the confessional statement is in line with the medical evidence and the ocular testimony. It may be noted that the fact that the appellant is also related to the complainant and has shown no enmity against him, supported the prosecution case in substance: Accordingly, we have no hesitation to hold that the retracted c confession, in this case, was not only voluntary but was also true. It is well-settled that if the confession is found to be voluntary and true then in that case, it can validly form the basis of conviction and that there remains no need, at all, to look for further corroborative evidence. However, it may be mentioned, that in this case, the confessional statement, though retracted, finds corroboration from medical evidence, motive and prolonged ascendance of the appellant/accused. 20. Taken in this context, in our opinion, the prosecution has been able to establish its case against the accused for killing Hazaratullah deceased, beyond any reasonable doubt. We, therefore, maintain the conviction of the appellant-accused under section 302, P.P.C. 21. The question of sentence, however, remains to be considered. It was stated by Sher Afzal (P.W.10) that an altercation had taken place between the appellant and the deceased over a petty matter. The cause and the nature of the altercation has not been unfolded/ascertained. Similarly Fazal-e- Mola (P.W.11) has not disclosed as to what had transpired between the appellant and the deceased immediately before the unfortunate occurrence took place. In the absence of any enmity, it still remains a mystery as to why a relative should resort to firing straightaway, unless, of course, something nasty had happened as a result of unjustified provocation. In our opinion, the prosecution has deliberately and purposely suppressed the reasons for which the appellant had killed the deceased. In view of the inadequate motive and the mystery surrounding the background of the offence, I refrain myself from visiting the appellant with the extreme punishment of death. I accordingly do not confirm the death sentence and instead substitute it with life imprisonment, which will meet the ends of justice, in the circumstances of this case. With this modification, the appeals are rejected. ' NASIR-UL-MULK, J.--- This judgment shall dispose of Criminal Appeal No,85 of 1993, Jail Appeal No,113 of 1993 both filed by the convict appellant and Murder Reference No,5 of 1993 sent up by Sessions Judge, Peshawar under section 374, Cr.P.C. 2. The appellant was convicted by the Additional Sessions Judge, Peshawar, by order and judgment, dated 20-6-1993 under section 302, P.P.C. For the murder of Hazratullah son of Sher Afzal and sentenced to death and a fine of Rs,1,00,000 in default whereof to suffer further 5 years' R.I. Half of the fine if realized was to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. 3. The foundation of the prosecution case was laid by F.I.R. No,366 (Exh.PA.) registered by Farman Ali, A.S.I. At Police Station Pishtakhra on 29-7-1989 at 6-40 p.m. On the information of Sher Afzal son
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of Safirullah (P.W.10) wherein he divulged that on the same day he was present in his house when at about 6 p.m. He heard shots fired outside the house, which prompted him to go out of the house to have a look. Outside his house, he saw the appellant armed with a Kalashnikov running with a speed towards his own house and a group of people who had gathered near a path. He went towards the group only to find that his son Hazratullah was murdered. He held the appellant responsible for the murder and the motive alleged was an altercation of not much significance between the appellant and the deceased earlier on the same day. 4. After registration of the case, Qazi Saeed, Acting S.H.O. Of the Police Station (P.W.8) rushed to the spot to investigate the case. He found the dead body of the deceased still lying on the spot and he prepared its injury sheet Exh.P.W.8/1 and inquest report Exh.P.W.8/2 on the spot and dispatched the dead body to the mortuary under the protection of Tehsinullah F.C. (P.W.4). The site plan Exh.P.W.8/3 was prepared at the instance of Fazal Maula (P.W.11). Blood-stained earth P.1 was taken into possession and sealed into a parcel vide recovery memo. Exh.P.B. The blood-stained shirt and Shalwar of the deceased were handed over by P.W. Tehsinullah and sealed into parcel vide recovery memo. Exh.P.B./1. The blood-stained earth and the bloodstained clothes of the deceased were sent to the Chemical Examiner for analysis who by his report Exh.P.K. Found the blood on all the 3 articles to be of human being and of the same group. As the accused could not be arrested, warrant of arrest and proclamation Exh.P.Q. And Exh.P.R. Respectively were issued against him and were entrusted to P.W. Muhammad Younis D.F.C. For execution. After completion of the investigation, a challan under section 512, Cr.P.C. Was submitted by Hidayatullah Khan, S.H.O. Of the police station. The appellant was arrested on 23-4-1990 nearly 9 months after the occurrence. On 25-4-1990, he made a confessional statement before Muhammad Tayyab Awan, M.I.C. (P.W.5) and on 27-4-1990 a supplementary challan was submitted to the trial Court. 5. The appellant was charged under section 302, P.P.C. He pleaded not guilty and opted to face trial. The prosecution produced 13 witnesses at the trial in support of its case. Firdaus Khan A.S.I. (P.W.1) was examined as a marginal witness to recovery memo. Exh.P.B. Through which blood- stained earth was taken into possession from the spot. Syed Afzal, A.S.I. (P.W.2) is a marginal witness to recovery memo. Exh.P.B./1 through which blood-stained clothes of the deceased were sealed in a parcel. Farman All A.S.I. (P.W.3) drafted the F.I.R. Tehsinullah (P.W.4) escorted the dead body of the deceased to the mortuary for post-mortem examination. Muhammad Tayyab Awan, M.I.C. (P.W.5) recorded the confessional statement of the accused. Muhammad Younas D.F.C. (P.W.6) was entrusted with the warrant of arrest under section 204, Cr.P.C. (Exh.P.Q.) against the accused which were returned unnerved. Hidayatullah S.H.O., Police Station Pishtakhra (P.W.7) submitted challah under section 512, Cr.P.C. Before the trial Court. Qazi Saeed (P.W.8) is Investigating Officer. Muhammad Rafique Inspector S.H.O. Police Station Pishtakhra -(P.W.9) arrested the accused on 23-4-1990 arid submitted supplementary challan before the trial Court. The complainant Sher Afzal was examined as P.W.10 and his nephew Fazal Maula, the eye-witness, as P.W.11. Gul Afzal (P.W.12) identified the dead body of the deceased at the mortuary. Hassan Khan (P.W.13) produced the accused before the Magistrate for recording of his confessional statement. As Shahid Kundi, the doctor who conducted the post-mortem examination was not available, Dr. Nazir, Medical Officer (P.W.14) testified that he was well-conversant with the handwriting of Dr. Shahid Kundi and that the post-mortem report was in his handwriting. The post-mortem examination of Hazratullah deceased was conducted at 8-35 hours on 30-7-1989 the report reads as follows:- "External Examination: ' A young man of 25/30 years of age. Rigor mortis developed Postmortem staining present. Injuries
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(1) 1/4" x 1/4", 2-1/2" below from left assulla at back 6-1/2" left to midline back and 6" from tip of left shoulder. (2) 1/4" x 1/4", 5" left to midline, 12-1/2" from tip of left shoulder. (3) 1/4" x 1/4", 3" left to midline of back 7" to left iliac crest. (4) 1-1/2 x r, 2" above sterno clavicular notch. (5) 1-1/2 x 1" on right shoulder, 1" left to shoulder tip, 4" right to neck side (Rt.). (6) 2" x 1-1/2", 5" Rt. To midline of back, 6" above Rt. Iliac crest. (7) 1/4" x 1/4" lateral margin of left elbow-joint. (8) 1" x 1/2" on medial aspect of right elbow joint 6" below left axilla. (9) 1/4" x 1/4", 5-1/2" below and left to umbilicus 3" left to midline of stomach. (10)2" x 1-1/2", 1" medial to right iliac crest. (11)Cross-wound 1/4" x 1/4", 2-1/2" to right of midline of chest wall 3" below right mid clavicular point. (12)1" x 1/2", 1" right to right nipple 2" to left of right asulla. ' Note.-- Injuries Nos.1, 2, 3, 7 and 9 are entry wounds while injuries Nos.4, 5, 6, 8, 10, 11 are exit wounds and injury No,12 is cross-wound. Internal examination ' Thorax: Walls, ribs and cartilages, pleurae, larynx and tracheas, right lung were injured. ' Abdomen: Walls, peritoneum, mouth, pharynx and esophagus, diaphragm, small intestines and large intestines injured. Semi-digested food was present in the stomach. ' In the opinion of the doctor, the cause of death was shock due to hemorrhage to vital organs due to fire-arm. Probable time between injury and death 0 to thirty minutes and between death and post-mortem 8 to 16 hours." 6. After the close of the prosecution case the appellant was examined under section 342, Cr.P.C. The defense did not produce any evidence nor did the appellant opted to be examined on oath under section 340(2), Cr.P.C. 7. The prosecution case rests upon the confession, the ascendance of the accused and the ocular testimony comprising of the statement of the complainant of having seen the appellant running away from the spot after the occurrence and P.W. Fazal Maula, the only eye-witness in the case. For fixing the venue of occurrence, reliance has been placed on the recovery of bloodstained earth from the spot. 8. Mr. M. Zahoorul Haq, Barrister, on behalf of the appellant contended that it was an witnessed crime in that the complainant P.W. Sher Afzal does not claim to have witnessed the crime and the testimony of the sole eye-witness of the crime, Fazal Maula P.W., is to be ruled out of consideration as he was not named in the F.I.R. Infirmities in the statements of these two witnesses were pointed out to show that they were not credible. That the confession is to be discarded as it was neither voluntary, being recorded on the 4th day of the appellant's arrest, nor true, for it was inconsistent with the rest of the prosecution evidence. Moreover, it was exculpatory for in it the appellant had taken the plea of self-defence. In the circumstances the learned counsel for the appellant contended that abscondence of the appellant would be of no avail to the prosecution as abscondence by itself is not enough for conviction of the appellant as the same can be used as corroborative piece of evidence only in cases where the prosecution evidence is otherwise sufficient to base conviction 'on. 9. For the State, ,Mr. Tahir Hussain Lughimani, Assistant Advocate-General, argued that the prosecution case is supported by two witnesses, one of them had seen the occurrence and the other had seen the appellant running away from the spot too thereafter. That the inconsistencies in the ocular testimony are so insignificant that they deserve to be ignored as the same can be attributed to ordinary human frailty. It was urged that the confession of the appellant is voluntary and that the ocular testimony receives corroboration from the confessional statement and the
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unsatisfactorily explained abscondence of the appellant of about 9 months. The learned Assistant Advocate-General also pointed out that there is nothing on the record to show the motive for false implication of the appellant. On the other hand, the prosecution has attributed a motive to the appellant for murdering the deceased. 10. The eye-witness account of the manner in which the murder took place has been given by P.W. Fazal Maula, the sole eye-witness in the case. Thus, in order to appreciate the prosecution evidence, it is appropriate to give a resume of the narration of the event given by him at the trial. According-to him, on the day of occurrence at about 6-00 p.m. While he was busy in his field cutting grass for his cattle he saw the deceased Hazratullah going towards his own house. He was followed by the appellant, who was armed with a Kalashnikov. He heard the appellant calling the deceased to stop, which the latter did and after stopping turned his face towards the appellant. At that very moment the appellant fired at the deceased who was hit and died then and there. 11. Fazal Maula P.W. Was not named by the complainant in the F.I.R., though the complainant in his statement before the trial Court admitted that the said P.W. Was present near the dead body of the deceased when he arrived at the scene of occurrence. While Fazal Maula P.W. Was the nephew of the complainant and also an eye-witness of the occurrence one fails to understand why he did not accompany the complainant to the police station for registration of the case. Strangely 'enough, this P.W. Did not go to the mortuary along with the corpse of the deceased. He claims to be an eye- witness and for that matter the only one, but he kept the knowledge of the commission of the crime to himself as a guarded secret. When the complainant, the father of the deceased arrived at the spot, Fazal Maula did not disclose the crime story to him,…
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