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Petitioner: Mir SAHIB KHAN VS Respondent: ZAREEN KHAN and 3 others
Court Name: Peshawar High Court Judge(s): Muhammad Alam Khan, Syed Yahya Zahid Gilani Title: Mir SAHIB KHAN vs ZAREEN KHAN and 3 others Case No.: Criminal Appeal No,19 and Murder Reference No,1 of 2008 Date of Judgment:2009-03-26 Reported As: 2009 YLR 1849 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SYED YAHYA ZAHID GILANI, J.---Convict-appellant Mir Sahib Khan was tried in the Court of Mr. Asad Hameed Bangesh, learned Additional Sessions Judge-I, Lakki Marwat, under sections 302/34, P.P.C, in the case registered vide F.I.R. No,294 dated 13-8-2005 of Police Station Lakki Marwat. He was convicted vide judgment dated 29-2-2008 and sentenced to death, with direction to pay Rs,2,00,000 as compensation for legal heirs of deceased in terms of section 544-A, Cr.P.C. Hence, this Appeal No,19/2008 against conviction and Murder Reference No,1/2008 for confirmation of death sentence. This judgment will dispose of both of them. 2. Briefly, the prosecution case is that the complainant Zareen Khan went to fields at afternoon, on 12-8-2005, along with his brother Jamal Khan and uncle Noor Nawaz. On return, at about 1920 hours, when Noor Nawaz was going ahead, and the complainant and Jamal Khan were following him, they came across the under trial accused Mir Sahib Khan and the absconding accused Noor Wali, who were duly armed with Kalashnikovs. Both the accused shouted at Noor Nawaz that he would not escape and hit him with the bullets of their arms. Noor Nawaz got injured and fell down. Both the accused fled away. The deceased then injured was moved to Bannu for treatment but he died when they were reaching the hospital. Thereafter the dead body was brought back and taken to Police Station Lakki Marwat, where the aforementioned report was recorded. Motive for the occurrence was disclosed to be dispute over a school. 3. During trial, eight prosecution witnesses were examined. Dr. Mashal Khan was examined as P.W.1, He observed that the deceased, aged about 25-30 years, was having following wounds on his person:--
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(1) Entrance wound of fire-arm on left side of abdomen, stomach area size 1/4" x 1/4", oval, skin muscles viscera deep. ' Exit wound. One exit wound on right lumber area size 2" x 2", bleeding present. (2) Entrance wound of fire-arm on posterior thoracic region blackening and scarring present. Skin muscle and bone deep size 1/4" x 1/4", ' Exit wound on the area of right iliac foosa size 1" x 1", (3) Entrance wound of fire-arm on left armpit size 1/4" x 1/4" skin and muscle deep. ' Exit wound is in between the two scapulae posteriorly size 1 "x 1". (4) Entrance wound of fire-arm on the left lumber area size 1/4" x 1/4" skin and muscle deep. ' Exit wound on right side of abdomen size 1" x 1". (5) Entrance wound of fire-arm on left buttock size 1/4" x 1/4", ' Exit wound on right iliac foosa below wound No,2 size 2" x 2". (6) Entrance wound of fire-arm on dorsal aspect of right forearm size 1/2" x 1/2". ' Exit wound on ventral aspect of right forearm size 1" x 1", 4. Zareen Khan complainant and his brother Jamal Khan, being eye-witnesses, were examined as P.W.6 and P.W.7. Akbar Ali S.-I. (Investigating Officer). Was examined as P.W.8. The remaining witnesses were produced to prove alleged ten months abscondence of the convict-appellant, recovery of blood-stained earth, nine empties of Kalashnikov from the spot, blood-stained garments of the deceased and other formal relevant facts. 5. After examination of the convict-appellant under section 342, Cr.P.C, the statements of his three D.Ws. Were also recorded. 6. Learned trial Court disbelieved the defence witnesses and mainly placing reliance on the ocular testimony of P.W.6 and P.W.7, having been corroborated by medical evidence, recoveries and abscondence, held the convict-appellant guilty and sentenced him to death. 7. We have listened arguments of Mr. Sultan Shehryar Khan, Advocate for the convict-appellant, Mr. Marghoob Hassan, Advocate for the complainant and Mr. Salimullah Khan Ranazai, Advocate for the State. Record has been gone through. 8. Learned counsel for the convict-appellant contended that the impugned conviction is not sustainable because icar-d trial Court has failed to appreciate evidence in its true perspective, in accordance, with law and settled principles governing administration of justice in criminal cases. He argued that there is delay of at least four hours in lodging report which has been explained but unconvincingly. It hints consultation and deliberations before nominating accused and further that the occurrence was unwitnessed, The alleged eye-witnesses are closely related to deceased, highly interested and chance witnesses. They have materially improved their statements in Court to fill up lacuanae in the prosecution case and it renders their statements to be not worth confidence-inspiring. Medical evidence does not corroborate the ocular testimony, rather it contradicts because one of the entrance wound on the body of deceased was having blackening and scarring which was not possible from the distance of five paces from v;thich the shots were allegedly fired, The alleged motive remained unproved and abscondence alone cannot prove the guilt. The defence version is well-proved that the deceased had friendship with one Muhammad Zaman alias Manaki, who was a handsome boy of about fifteen years and since the deceased attempted to commit sodomy upon him, Manaki killed him. He concluded that learned trial Court has wrongly believed the legally defective evidence of prosecution and unlawfully discarded the believable defence evidence. Hence, he prayed for setting aside conviction and sentence of the convict-appellant, and requested for his acquittal. 9. Learned counsel for the complainant and the State counsel argued that the delay in lodging report has been explained. It was because the deceased then injured was alive and due to serious nature of injury, he was decided to be directly shifted to D.H.Q. Hospital Bannu because the facilities
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required in such emergency cases are not available in the local hospitals. Unfortunately, the victim died on reaching to Bannu and he had to be brought back to Police Station Lakki Marwat for recording report. This is a true and reasonable explanation which was rightly believed by the learned trial Court. Both the eye-witnesses are though related to deceased but they have no personal enmity with the accused. The alleged motive indicate personal dispute of deceased and assailants. They had gone to fields according to their routine activity at the weekend. So, neither they are interested, nor chance witnesses. They are unanimous on mode and manner of the occurrence. They have not at all improved their statements. They have not been confronted with previous statements, to prove existence of improvements. Their explanations, asked for in the cross-examination, cannot be termed to be improvement. Their statements are duly corroborated by the nine empties recovered from the spot and Forensic Science Laboratory report that two weapons were used. Parties are known to each other. There is no question of misidentification or substitution of accused. The convict-appellant was arrested in a raid with an unlicensed weapon and his abscondence is proved. Motive has been alleged. The D.Ws. Have given stereotype statements one ne year of the occurrence. Their story that the deceased was busy in congregational prayer at village Mosque is in fact an "alibi" which could not be proved beyond doubt. Rather, admissions of the D.Ws have given support and strength to prosecution case. The convict-appellant have been rightly convicted and sentenced. They prayed that his death sentence may be confirmed. 10. The first invasion of learned counsel for the convict-appellant on the prosecution case is that the F.I.R. Is palpably delayed and such F.I.R. Creates sufficient room for doubt in the prosecution case because the delay is attributable to consultations and deliberations before nominating the accused. It is also an indicia of absence of alleged eye-witnesses on the spot. 11. We have considered this point carefully. The record shows that the occurrence took place at 1920 hours on 12-8-2005 and the F.I.R. Was registered at 00:15 a.m. On 13-8-2005. The intervening time is four hours and 55 minutes. Although the distance recorded in between the place of occurrence and' Police Station Lakki Marwat is 11-12 kilometers but it is immaterial in the present case because of the explanation given in the prosecution case for delay in lodging report. Before discussing the explanation, it would be beneficial to glance at some relevant precedent cases on the delay in lodging F.I.R. 12. Honourable Supreme Court of Pakistan has held long before, in the case Khalil Ahmad alias Khalil and another. v. The State (1975 SCM R 442), that an F.I.R. Lodged without loss of time 'eliminates possibility of fabrication at the part of the first informant. However, there is no such hard and fast rule that a delayed F.I.R. Would always be unreliable and a prompt F.I.R. Would always be true. It has been appropriately held in the case Radha Kishan v. Emperor (AIR 1938 Lah. 714-B) that delay in lodging report is only a suspicious circumstances which puts the Court on . Guard and by itself it cannot be held to be a reason for rejecting the evidence which is otherwise credible. The same view has been expressed by a Division Bench of this Court in the case Asmat Khan. v. The State (1995 PCr.LJ 459-C) in the words that the Courts are always pricked at the very outset when they find delay in lodging an F.I.R. Nevertheless, delay per se is not aground to reject the prosecution case downright. Every case proceeds on its own facts and circumstances. Therefore, the adverse effect of delay cannot be made a rule of universal application. Nonetheless, in absence of plausible and convincing explanation of any such delay, the Courts are compelled to conclude it like skid on the first step of marathon. 13. What we desire to highlight over here is that the delay in lodging F.I.R. Itself is not final if it is not inordinate and well-explained. In this respect, we would refer the judgment of Honourable apex Court handed down in the case of Nasrullah and others v. The State (1996 SCM R 1926) wherein delay in lodging, F.I.R. Was convincingly explained and it was held that the question of consultation
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and deliberation was thus completely ruled out. In another case decided by Honourable apex Court titled Mst. Shamim Akhtar, v. Fayaz Akhtar and two others (PLD 1992 SC 211-b), there was delay of eight hours in lodging a report and the explanation was given that the complainant and injured P.Ws. Went to hospital to get medical treatment, before lodging report. It was held that there was nothing unusual in the conduct of the complainant in first shifting the injured to the hospital for treatment to save their lives and delay in lodging report was not fatal. 14. In the instant case, the report Exh.PA has been lodged at Police Station Lakki Marwat, wherein it is clearly explained that the victim got injured, and after arranging Datsun Pick-Up, he was preferred to be shifted to Civil Hospital, Bannu to avail better treatment facilities. Unfortunately, he died when they were near to Civil Hospital, Bannu and the dead body was brought back to Police Station, Lakki Marwat for report. 15. Here a crucial question arises that keeping in view the injuries sustained, could the victim be alive for some time. In this respect answer is available in the medical evidence. P.W.1 Dr. Mashal Khan has clearly recorded in the post-mortem report that the probable time in between injury sustained by the victim and his death was about one to three hours. In such circumstances, we would again refer to the observations of Honourable apex Court in the case of Mst. Shamim Akhtar (supra) that it is a normal human conduct if the treatment of injured person is preferred over going to Police Station for lodging report. In our society there had been a tendency of refusing treatment before lodging report and the case related interference of police used to thwart medical aid, frustrate medical staff and ultimately the injured persons used to suffer. In order to eliminate this cruel attitude, the legislature has taken step forward to pass "Injured Persons (Medical Aid) Act, 2004" (Act No,XII of 2004). Its section 3 provided for treatment of injured person on priority basis and section 4 makes police officials/officers bound, not to interrupt or interfere during the period an injured person is under treatment. Section 8 of the Act is the most relevant section to be referred over here which is quoted below for ready reference:-- "Section 8. The injured person not to be taken to a Police Station: (1) Under no circumstances an injured person be taken to a police station before necessary medical aid and treatment is given. (2) The police officer is bound to ensure that the injured person is treated in a hospital as provided in this Act before any medico-legal procedure is undertaken. The police officer shall not in any way influence the doctor or to give any opinion about the type and details of injury or the injured person." 16. In the light of above discussion, there can be no difference of opinion that treatment of injured person is always c paramount and keeping in view the facts and circumstances of each case, can be preferred over lodging report. 17. Now, the next question is whether the prosecution has been able to prove the given explanation. Both P.W.6 Zarin Khan complainant and P.W.7 Jamal Khan have stated on Oath in their examination-in-chief that the Pick-Up was arranged and Noor Nawaz deceased, the injured, was taken, to D.H.Q. Hospital, Bannu and he died near the hospital. Here it was objected that there was a Rural .Health Centre at Gambeela which was nearer and if at all the treatment was to be preferred, the* injured should have been taken to R.H.C., Gambeela. To this objection, learned counsel for the complainant rightly replied that the injured was serious and it was understood that he would be referred to D.H.Q. Hospital, Bannu because of better facility, lacking at R.H.C. Gambeela. So, he was directly taken to D.H.Q. Hospital, Bannu. We are of the opinion that this reply is convincing. If we go through the cross-examination of P.W.6, we find that further explanations were asked for and the witness replied that the injured was first taken to their baithak where they waited for the pick-up for half an hour, thereafter, they took the dead body on charpoy, obviously and understandably because they could not remain static and wait for the vehicle for indefinite period, and when they were carrying the victim on cot towards Gambeela, Gul Raeep Khan, who was sent for the Pick-Up,
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brought it from Paharkhel in which the injured was placed. This witness was further asked that while proceeding to Bannu hospital, there was a Police Post and a police station in the way which he admitted correct, but this is not fatal with reference to lodging report over there because it was, at that time, not the priority, and the treatment priority. Similar questions were put to P.W.7 Jamal Khan eye-witness and his answers are almost identical on material aspects. We ignore the minor discrepancies because their statements were recorded after two years of the occurrence. The cross-examination could not create any doubt in the explanations given by them and the circumstances approve it. We are, therefore, satisfied and hold that the delay of a few hours in lodging the report is not fatal to prosecution in the facts and circumstances of this case, because the alleged explanation is satisfactory. 18. The next contention of learned counsel for the convict-appellant was that the alleged eye- witnesses examined as P.W.6 and P.W.7 are not reliable due to their doubtful credentials being highly interested and chance witnesses. Elaborating the point, he argued that P.W.7 has admitted that both of them are masons by profession and work at Bannu. They are admittedly nephews of the deceased and very closely related to him, thus, highly interested too and their presence on spot is not natural. So, these inherent flaws in their status. Are not ignorable and outrightly diminish value of their testimony to minimum level. 19. These arguments were considered in the light of record. Both P.W.6 and P.W.7 have stated in the start of their examination-in-chief that on the day of occurrence, at digar time, they along with the deceased then alive, had gone for a walk upto their fields. True, it is an admitted fact that they are masons and work at Bannu, but they have explained in replies to cross-question that they use to visit their village on weekends and it was their normal practice that they used to go for walk upto their fields inn the afternoon, whenever they used to be in village. It is further explained by P.W.6 in answer to a cross question that they used to prefer the aforesaid walk because they were prevented by the convict-appellant Mir Sahib Khan from visiting the village Hujra. This statement remained unchallenged and unrebutted. Satisfaction of judicial mind about presence of these P.Ws. In the village was no doubt essential and during search of evidence, we have noted that the defence witness Gul Bazar, produced by accused and examined as D.W.1, has admitted in the cross-examination that P.W. Zarin Khan (P.W.6) and P.W. Jamal Khan (P.W.7) used to come to village every week for a day or two. He further admitted that they attended injured Noor Nawaz at the "outset" of the village (this word seems to be "outskirts" but typed as "outset") when he was brought by the villagers to the village. This admission from the opposite corner makes us satisfied that the witnesses were present in the village on the eventful day and they were not at Bannu. They have further explained in their cross-examination that they were staying in the village due to election campaign. Their statement that they normally used to go to fields for walk, has also remained unrebutted. All this suggests that both are not chance witnesses, because a chance witness is that witness who should not be normally present at a E particular place, at the given time, or that he cannot reasonably explain his presence over the spot of occurrence in the normal course of life. 20. It has been held by Honourable apex Court in the ease of Muhammad Ashraf and another v. State (PLD 1977 SC 538) hat no doubt, the Courts have been rather cautious in accepting the testimony of chance witnesses and that too not without corroboration but chances do occur in life and more often in frequented public places like bus stands, railway platforms, level crossings etc. The presence of a witness at such public resorts would considerably detract from the prejudice usually attached to the testimony of a witness casually appearing at the scene which of course has to be subjected to the well-settled tests of credibility. In Mehmood Ahmad. v. The State (1997 SCM R 89), it has been held that even a passerby is not always a chance witness. This judgment from Karachi jurisdiction, in the case Soomar and another v. The State reported in 1990 M LD 1077
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and from Lahore jurisdiction, in the case titled Iqbal, v. State reported in 1998 M LD 1372 are also in line with the aforementioned proposition. 21. In the case-in-hand, due to reasonable explanations having come in cross examination, admission of D.W.1 and urebutted stand about routine of the witnesses of going for a walk, leads us to conclude that both the eye-witnesses of this case cannot be labelled to be chance witnesses. 22. The law, by now, is well-settled on the concept of "interested witness". The, chain of authorities in this regard define that an interested witness is that who has motive to falsely implicate someone as accused and mere relationship with the deceased is not sufficient to declare a person to be interested witness. During cross-examination, no personal enmity of the eye-witnesses against the convict- appellant could be brought on record. Even no suggestion has been given to them in this regard. The motive for the occurrence, as disclosed, refers to a bilateral dispute of convict- appellant and the deceased, over a school. So, in strict sense, both the eyewitnesses are not interested witnesses, because they have no personal grudge with the accused. Reliance in this regard is placed on 1997 SCM R 1424 (b) and (c). 23. At the most, the two eye-witnesses of this case are related witnesses because they are nephews of the- deceased and thus their statements are to be scrutinized and tested on the touchstone of recognized judicial principles goyerning administration of justice in criminal cases to answer the cruicial question that whether they have witnessed the occurrence and that they are credible witnesses. 24. It was the contention of learned counsel for the convict-appellant that both the eye-witnesses have made frequent improvements in their statements to fill up lacunae and to match their statements with the circumstances evidenced which speaks volumes about their incredibility. 25. If a witness makes any improvement in his previous statements, his credibility can be impeached in cross- examination drawing his attention towards his previous statement under Article 140 of Qanun-e-Shahadat, 1984, and this law in this Article says that such confrontation is a "must". Adopting this mode, improvement or contradiction in his present and previous statements can be brought on record, by proving and. Exhibiting his previous statement for comparison. When we go J through . The statements of both eyewitnesses of this case, we'do not find extensive confrontation with their previous statements. P.W.6 has been confronted with F.I.R, to prove that he had not stated in the F.I.R, that when the deceased "reached near" the accused, they fired at him, but this improvement is not fatal because the F.I.R, is not a detailed document and minute details cannot be incorporated therein. Besides this, the remaining alleged improvements are in fact explanations given by the witnesses in answers to cross questions, some asked for, and some H voluntarily given. Such explanations are not improvements and an objection in this behalf raised in the trial'Court during the statement of P.W.6, the order was reserved by the trial Court and later on rightly answered in the impugned judgment,' accordingly. 26. The next objection of learned counsel for the convict-appellant was that the statements of eye- witnesses have been materially belied by the medical evidence the because the site-plan shows the distance of fire to be five paces (12-13 feet), but entrance wound No,2 on the body of deceased carries "blackening and scarring". Meaning thereby that the occurrence did not take place in the mode and manner described by the eye-witnesses. He placed reliance on the case of Matloob Hussain and another v. The State 2007 PCr.LJ I 1699. 27. Rebutting this argument, learned counsel for the complainant referred the case of Abdul Majid alias Fauji and another v. The State 1998 PCr.LJ 1914 to support his stance that modern weapons and ammunition now commonly used in our society have different impacts than those narrated in the classic books on the subject of medical jurisprudence, weaponry and ballistics. In the ease referred by him, a Division Bench of Honourable Lahore High Court has held that blackening found on the firing was allegedly made from a distance of 36 feet would be inconsequential when it was
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from sophisticated weapon like Kalashnikovs and mousers. Their lordships presiding the D.B. So held because of high velocity of bullets used in these modern weapons, which could produce spark while passing through the metallic body of the vehicle and create blackening effect before entering the human body. 28. We feel ourselves in harmony with these views. Scientific technology has developed in all areas of life and the field of arms and ammunition is ahead of all. New sophisticated weapons and ammunitions have been invented. Their impacts are quite different than the weapons and ammunition of the past described in the old books on the subject. So, we should keep ourselves aware of the available arms and ammunition, developed by the modern technology, used in our society and their impacts, relevant for judicial consideration, as circumstantial evidence. 29. In this behalf, we have collected information from "Wikipedia", the free encyclopadia accessible on internet, on the subject of "Tracer Ammunition". The page which we have consulted has been last modified on 7th April, 2009, because, it is commonly known that people in our jurisdiction do use "Tracer Bullets" in Kalashnikovs. These rounds are especially…
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