Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Malik Zaffar VS Respondent: Rashid Hussain Shah and another
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Raza Ali Khan, Khawaja Muhammad Nasim, Raja Saeed Akram Khan (C.J) Title: Malik Zaffar vs Rashid Hussain Shah and another Case No.: Criminal Appeals No. 25 of 2022 and 31 of 2022 Date of Judgment:2022-11-03 Reported As: 2023 PSC (Crl.) 14 Result: Order accordingly
JUDGMENT
JUDGMENT RAZA ALI KHAN, J.--- The common judgment of the Shariat Appellate Bench of the High Court (hereinafter to be referred as High Court), dated 03.08.2022, has been called in question in the appeals, supra, whereby the appeals filed by the contesting parties as well as the reference sent' by the trial Court have been decided in the following manner:-- "'The crux and epitome of the above discussion is, the impugned judgment to the extent of accused Zafar Iqbal recorded by Sessions Judge is differed and set at naught whereas judgment recorded by District Qazi is modified in the manner that accused Zaffar Iqbal is hereby convicted under section 302(c) APC by awarding 14 year's rigorous imprisonment and also sentenced to 3 years simple imprisonment under section 13/20/65 Arms Act. Convict Zaffar Iqbal shall also pay Rs. 10,00,000/- as compensation to the legal heirs of deceased under section 544-A, Cr.P.C., in case of failure same shall be recovered in accordance with the provisions of Land Revenue Act. Benefit of section 382, Cr.P.C. shall be extended in favour of convict. Accused Imran son of Mansha is hereby acquitted of the charges by extending benefit of doubt. The impugned verdict to the extent of rest of the accused persons is hereby sustained. The reference sent by the District Qazi is denied to affirm." As the titled appeals are outcome of one and the same occurrence and the judgment, hence, these are being disposed of through this single judgment. 2. The concise facts involved in the case are that the complainant, Rashid Hussain Shah, moved an application to the Police Station Kotli on 23.09.2003, that he is a resident of village Phagwari and running a PCO in Riyan Gala. Few days ago a minor altercation took place between the complainant and Nisar, brother of Malik Mansha, and today, again a quarrel took place and
---
## Page 2
thereafter, when he along with his brother Amir Asif Shah were sitting at the PCO, the accused persons namely Mansha Khan, Muhammad Yousaf, Muhammad Taj, Zaffar Malik, Aziz, Imran, Amjad, Rizwan, lmtiaz, Qammar Malik, Javed Niaz, Hafiz Aurangzeb came with 8/9 unknown persons on a Jeep No. 4682 and another Suzuki Jeep at 9:30 a.m. The accused Zaffar Malik, lmran and Hafiz Aurangzeb were armed with Kalashnikovs and other accused persons were armed with sticks, hatchets and small weapons. The accused who were armed with Kalashnikovs started firing as soon as their arrival at the spot. The brother of the complainant Amir Asif Shah ran towards the roof of a nearby school, meanwhile the accused, Zaffar Malik, with an intention to kill him fired a direct shot by targeting his brother (deceased) which hit him at the left side of his forehead and fell down, whereas, the other accused kept firing. It was contended that the occurrence has been committed with preplanning and on the instigation of Mansha Khan. 3. On the report of the complainant, initially, the case was registered under sections 147, 148, 149, 337-A1 and 324, APC, but later, on the injured succumbed to the injuries, whereupon, section 302, APC and section 13 of the Arms Act, 1965, were added. On completion of the investigation, the police sent the accused persons for facing trial before the learned District Criminal Court Kotli, on 22.11.2003. The statement of the accused under section 265-D, Cr.PC was recorded on 16.12.2003, whereupon they pleaded not guilty, hence, the prosecution was directed to lead evidence in order to prove its accusation and guilt of the accused persons. After recording of the prosecution evidence, the statements of the accused under section 342, Cr.PC were also recorded on 05.01.2007, however, they refused to record their statements under section 340(2), Cr.PC and also denied to adduce evidence in their defence. 4. At the conclusion of the trial, one of the learned Member of the District Court of Criminal Jurisdiction Kotli, Sessions Judge, acquitted all the accused persons of the charge while extending them the benefit of doubt, whereas, the other learned Member of the Court, i.e. District Qazi, awarded death sentence under section 302(b), APC, to the convict-appellant and 5 years' imprisonment to the co-accused Imran. On the difference of opinion, a reference was sent to the High Court and parties also challenged the said judgment by filing separate appeals which have been decided by the High Court in the terms mentioned in the preceding paragraph. 5. Raja Muhammad Shafat Khan, Advocate, one of the counsel for the convict-appellant, argued the case while submitting that the Impunged judgment of the High Court is against law, the facts and the record of the case. He contended that in the instant case the prosecution badly failed' to prove the case against the convict-appellant but despite of this fact, the learned High Court convicted him. In support of this version, he submitted that 23 persons were nominated as accused in the case, however, during investigation the police discharged 11 persons under section 169, Cr.P.C. and the complainant did not challenge this discharge at any forum which shows that the story narrated by the complainant was false, doubtful, and he concealed the real facts. He added that in the FIR the complainant showed 8/9 persons as unknown and later on, during investigation nominated them, whereas, all the persons are the residents of the same vicinity and well-known to each other, thus, in such state of affairs, the nomination of unknown accused after a considerable time creates serious doubts in the story. He added that the distance between the convict- appellant and the deceased has been narrated/shown in the site plan as 80 meter and according to the prosecution story the convict was armed with Kalashnikov and the affective range of the shot of Kalashnikov is 580 meter, so if the convict hit the deceased from such a short distance then the bullet must have crossed the body of the deceased, but the situation is otherwise as the bullet was recovered from the skull of the deceased during post-mortem. In continuation of the argument, he further stated that amazingly the shot of Kalashnikov is attributed to the convict- appellant and the same weapon has allegedly been recovered from him during the investigation, whereas, the bullet recovered from the body of the deceased was sent to the Forensic Science
---
## Page 3
Laboratory (FSL) and according to the report of FSL, the same was of 30 Bore Pistol. He stressed that such a glaring contradiction in the prosecution story create serious doubts, but the learned High Court failed to consider the same. He maintained that in the FIR as well as in the statements under sections 161, Cr.P.C., the alleged eyewitness specifically stated that the convict-appellant was armed with Kalashnikov but later on, tried to fix the flaw of the prosecution story in the light of FSL report by improvements in their statements recorded in the Court that the convict was armed with a Kalashnikov-like weapon/rifle. Such improvement has been made in the case which cannot be ignored lightly. He stated that statement of one of the alleged eye-witnesses, namely, Munir Shah, under section 161, Cr.P.C., has been recorded after 5 days of the occurrence, and no explanation for such a long delay has been explained, whereas, the superior Courts in number of cases have disbelieved the credibility of the statement recorded under section 161, Cr.P.C., even after a delay of 24 hours without any plausible explanation. The learned counsel further drew the Court's attention towards the inquest report and submitted that the same has been prepared at 3:00 p.m. and in the column of history of the case the names of the accused have not been incorporated which indicates that FIR has been registered after the preparation of the inquest report after due deliberation and time of registration of FIR shown as 10:00 am is not true. He forcefully submitted that medical report contradicts the ocular account as according to the prosecution story the convict-appellant was armed with. Kalashnikov and he fired the shot of Kalashnikov which hit the forehead of the deceased, whereas, during the post-mortem, the bullet recovered from the only injury inflicted in the forehead of the deceased was sent to the FSL and as per report of FSL the same was fired from 30 Bore Pistol. He also laid much stress on the point that the presence of the eye-witnesses at the scene of occurrence is highly doubtful and in support of this argument he submitted that there was a lot of confusion in this regard due to which the learned Members of the trial Court visited the spot and came to a unanimous view after inspecting the site, that the convict is not even visible from the points where eye-witnesses are allegedly shown according to the site plans prepared by the police and' the Patwari. Thus, in existence of such a patent doubt in respect of the presence of the eye-witnesses at the scene of occurrence their statements have no evidentiary value in the eye of law. He further submitted that it is a settled principle of law that a single doubt is sufficient to acquit the accused, whereas, in the instant case each and every part of the prosecution story is full of doubts and the learned High Court instead of giving the benefit of doubt to the accused has extended the same to the prosecution which is a unique example. He added that a specific Motive has been alleged in the case that an altercation took place between the complainant and the brother of Malik, Mansha but the prosecution failed to prove the motive as none of the witnesses was produced before the Court in order to prove the same. He added that it is settled principle of law that once a motive is alleged, the same must be proved beyond any shadow of doubt. He further stated that father of the deceased, who stated to be the eyewitness has also not been produced, and the father of a deceased could not implicate the innocent by letting go the real culprit so easily, which means that the prosecution deliberately did not produce him and in such-like situation an inference can be drawn that had he been produced he might have recorded the statement against the prosecution. The learned counsel also drew the attention of the Court towards the record and submitted that diagram, MLC etc. is not available in the record, the witness, Zafar Iqbal ASI who prepared the Injury Form and sought opinion from the Doctor has not been cited as a witness, moreover, according to the prosecution story indiscriminate firing hit the buildings of mosque and school but the record is silent about any-sign of firing on the said buildings and recovery of bullets from the spot and the investigating officer also did not find any mark there. He also submitted that one of the learned Member of the trial Court has discussed a letter allegedly written by the convict-appellant to the Court from Jail and on the strength of that letter has recorded the findings that the convict-appellant has himself confessed the offence,
---
## Page 4
whereas, neither such letter was put to the convict at the time of recording statement under section 342, Cr.P.C. nor the same is the part of record. He contended that the piece of evidence which was not put to the accused at the time of recording statement under section 342, Cr.P.C. cannot be read against him under law. He finally made a request for acquittal of the convict- appellant while submitting that no case is made out against him in the light of the material available on record. He referred to and relied upon the case laws reported as Allah Nawaz vs. The State [2009 SCMR 736], Noor Muhammad vs. The State [2020 SCMR 1049], Mst. Yasmeen vs. Javed and another [2020 SCMR 505], Aurangzeb vs. The State [2020 SCMR 612], Muhammad Arif vs. The State [2019 SCMR 631], State through Advocate-General vs. Muhammad Rafique and others [2019 SCMR 1150], Tafsir and others vs. The State [PLD 1960 Dacca 1019], Mst. Farzand Begum and others vs. Dil Muhammad and others [2020 SCR 367], Ghulam Qadir and others vs. The State [2008 SCMR 1221], Arshad Mehmood vs. Raja Muhammad Asghar [2008 SCR 345], Waseem Hussain and others vs. Muhammad Rafique and another [2017 SCR 428], Muhammad Akram vs. State [2009 SCMR 230], Nuzhat Bibi vs. Shabir Hussain and others [2006 SCR 58], Abdul Jabbar and others vs. The State [2019 SCR 129], Muhammad Zaman vs. State [2014 SCMR 749], Bashir Muhammad Khan vs. State [PLJ 2022 SC (CRC) 161], Muhammad Sadiq and others vs. The State [PLD 1960 SC, 223], Bashir Muhammad Khan vs. State [2022 SCMR 986], Tajamal Hussain Shah vs. State [2022 SCMR 1567], Haji Nisar Ahmed vs. Muhammad Murad and another [2003 SCMR 1588], Taj Muhammad and another vs. The State [2003 SCMR 1711], Haider Ali and others vs. The State [2016 SCMR 1554], Ghulam Farid and others vs. The State [PLD 1964 W.P, Peshawar 12], Muhammad Idrees and others vs. The State [2021 SCMR 612], Muhammad Aslam Khan vs. The State [1994 SCMR 172], Mst. Rukhsana Begum and others vs. Sajjad & others [2017 SCMR 596], Khud-e-Dad alias Pehlwan vs. The State [2017 SCMR. 701], Mst. Sadan Bibi vs. Muhammad Amir and others [2005 SCMR 1128], Barkat Ali vs. M Asif and another [2007 SCMR 1812], Pathan vs. The State [2015 SCMR 315J, Najaf Ali Shah vs. The State [2021 SCMR 736J, Khalid Mehmood and others vs. The State [2021 SCMR 8101, Yousaf and others vs. The State [1971 PCr.LJ 257], Muhammad Mansha vs. The State [2018 SCMR 772], Sardar Bibi vs. Munir Ahmed [2017 SCMR 344], Ramzan alias Jani vs. The State [1997 SCMR 590] and Ali Muhammad and others vs. The State [2022 YLR Note 8]. 6. Ch. Shoukat Aziz and Raja Inamullah Khan, Advocates representing the convict-appellant, Malik Zaffar, adopted the arguments of the learned Advocate, Raja Muhammad Shafat Khan. 7. Conversely, Raja Sajjad Ahmed Khan, the learned Advocate appearing for the respondents raised a preliminary objection that the titled appeal has been tiled under section 8 of the Shariat Appellate Bench of the High Court Act, 2017 which is not maintainable. He added that when a difference of opinion arises between the members of District Criminal Court, the appeal under section 23(7) of IPL, 1974, is already provided which is a special law and it is a settled principle of law that special law would displace general law, hence, this is not the matter of mere wrong quotation of a section rather a matter of wrong quotation of law, therefore, the appeal merits dismissal. While arguing on the merits of the case, he submitted that the FIR was promptly lodged at 10:15 a.m, wherein, name and specific roles of the convict-appellant and the other accused along-with the detail of weapon of offence and names of the witnesses have been mentioned. The time of registration of the FIR has also been proved through statements of complainant and SHO in cross examination and according to Article 129(e) of the Qanun-e-Shahadat Order, 1984, the official acts have a presumption of truth unless otherwise proved. The stance of the defense is totally incorrect that the FIR was recorded after 03:00 p.m, moreover, non-mentioning of FIR No. or each and every detail in the inquest report is neither fatal to the case nor the mandatory requirement of law. He further argued that non-production of the witnesses who prepared inquest report and injury sheet would not mean that there is doubt in prosecution story because the cause
---
## Page 5
of death is not doubtful in the light of record. The learned Advocate further argued that the delayed recording of statement under section 161, Cr.PC would not help convict-appellant and other accused. Further, the witnesses have not been cross-examined on their material statements and in cross-examination defense clarified the ambiguities and no improvement has been made by the witnesses neither they changed their stance regarding the place of occurrence or weapon used in occurrence rather, they remained consistent on their version stated in the FIR. Mere mentioning. instead of Kalashnikov is not an improvement (as alleged by the defence) and cannot destroy the whole prosecution story. He further clarified that mentioning the place of convict-appellant as Parrat' instead of 'road side' is also not an improvement but just a clarification. The prosecution witnesses narrated same story before the Court which was setup in their initial statements or in the FIR. He contended that there is no ambiguity in the site plan which is very much clear from the perusal of the statements of the witnesses and spot inspection reports of the learned Members of the trial Court. He added that even otherwise, when direct evidence is available on record, spot inspection is not warranted by law, and the defense tried to create a confusion by filing the application for spot inspection. It is also settled principle of law that site plan is never considered to be a substantive piece of evidence and the same cannot be given preference over the direct evidence. The learned Advocate further contended that no firearm of 30 bore, has been recovered so the recovery of bullet of 30 bore, has no value. Furthermore, the motive setup by the prosecution has been proved. While referring to the case reported as Yasmeen Ashraf vs. Abdul Rasheed, [2018 SCR 661], the learned Advocate stated that police diaries cannot be considered as evidence but can be perused by the Court in aid to the evidence brought on record for moral satisfaction. He submitted that the prosecution is not bound to produce all the witnesses and according to Article 17 of Qanun-e-Shahadat Order, the conviction can be based on the statement of solitary witness. He further submitted that where the eye-witnesses have witnessed the occurrence and supported the prosecution story, the opinion of expert becomes irrelevant. In' support of his version, the learned Advocate placed reliance on the cases reported as Abdul Rasheed and others vs. Abdul Ghaffar [PLJ 2001 SC AJK 129], Syed Ali Raza Asad Abidi vs. Station House Officer Police Station Model Town Gujranwala and others [PLD 1991 Lahore 3061, Brig. Red. Imtiaz Ahmed vs. Government of Pakistan through Secretary Division Islamabad and others [1994 SCMR 2142], Bakhat Jamal and another vs. Hakeem Khan and others [PLD 2014 Peshawar 84], Securities and Exchange Commission of Pakistan through Authorized Officer vs. Adnan Faisal and others [PLD 2019 Sindh 235], Muhammad Khurshid Khan vs. M Besharat & others [2007 SCR 1], Muhammad Bashir and others vs. Sain Khan and others [2014 SCR 821], Muhammad Taaleem and others vs. The State & others [2014 SCR 893], Muhammad Babar vs. The State through Advocate-General [2014 SCR 1585], Arshad Mehmood vs. Raja M. Asghar [2008 SCR 345], State vs. Habib-ur- Rehman, [PLD 1983 SC 286], Walayat Khan and others vs. M Yousaf and others [PLD 1995 SC AJK 41], Muhammad Ramzan vs. The State [1996 PCR.LJ 1076], Mir Afzal vs. The State [2008 Pcr.LJ 881], Muhammad Aslam vs. The State [1993 PCr.LJ 914J, Mauloo and others vs. The State [1983 PCr.LJ 1847], Abdul Rehman vs. The State [1983 Per. LJ 2462], Muhammad Amin vs. The State [1987 PCR.LI 643], Javed Azam and others vs. M Saleem [NJ 1997 SC AJK 226], Niaz Muhammad alias Jaja and others vs. The State [PLD 1983 SC AJK 211], Muhammad Arshad vs. Muhammad Mushtaq & others [2003 SCR 204], Farrukh Ahmed Chughtai vs. M lmtiaz [PLJ 1995 SC AJK 1], Muhammad Abbasi vs. The State [2011 SCMR 1606], Mudassar Altaf vs. The State [2010 SCMR 1861], Shafqat Hussain vs. The State through Advocate-General, AJK Muzaffarabad [2012 PCr.LJ 718], Arif vs. The State [PLD 2006 Peshawar 5], Ch. Muhammad Riasat and others vs. Muhammad Asghar and others [2010 SCR 1] and Arshad Mehmood and others vs. The State and others [2010 SCR 75].
---
## Page 6
8. Kh. Maqbool War, the learned Advocate-General while adopting the arguments advanced on behalf of Raja Sajjad Ahmed Khan, Advocate, submitted that impugned judgment passed by the learned High Court dated 03.08.2022, is well-reasoned, speaking one and passed in accordance with law and the facts of the case, hence, deserves to be upheld. He further submitted that the convict-appellant failed to point any legal ground for interference by this Court in the impugned judgment, hence, the appeal is a futile exercise, merely to prolong the litigation and put the complainant party into agony. He stated that the convict-appellant is fully connected with the commission of the murder and the prosecution has successfully proved its case beyond any shadow of doubt by production of ocular and corroborative evidence, whereas, the defense has failed to point out any dent in the prosecution story. 9. Mr. Babar Ali Khan, the learned Advocate representing the appellants (in appeal No. 31/2022), submitted that the learned High Court in the impugned judgment accepted that the direct evidence of the eye-witness is not only convincing but also confidence inspiring, but despite this, without any justification acquitted respondents No. 2 to 12, and declined to confirm the death sentence awarded by the District Qazi to convict-Malik Zaffar. He submitted that the weapon of offence was recovered on the pointation of convict and the recovery witnesses remained trustworthy, firm and steady during cross examination, but the learned High Court took a lenient view while awarding sentence to the convict-appellant without recording any cogent reasons. He further submitted that all the accused persons have been nominated with specific role in promptly lodged FIR and there is no doubt regarding the identity of the respondents. The evidence fully supports the prosecution version and the direct evidence has been admitted correct and confidence inspiring by one of the members of the District Criminal Court, but the learned Court below illegally upheld the judgment of the trial Court to the extent of acquittal of other accused. Moreover, the prosecution has proved through cogent evidence the constitution of unlawful assembly and all the accused acted in pursuance of common object which resulted into death of deceased, hence, all the accused persons are liable to be punished. He further argued that the motive of the incident was not only proved but has also been accepted by the High Court and the defense has also accepted the motive of the incident that on the basis of vendetta of previous incident, the accused-respondents, herein, formed an unlawful assembly and brutally murdered the deceased. He stressed on the point that the High Court has illegally dismissed the appeal of the appellants for being incompetent against the principle laid down in. the case reported as Abdul Khaliq Awan vs. Muhammad Afsar Khan & others [1995 SCR 144], wherein, it has been held that the complainant and legal heirs of the deceased can competently file appeal against the acquittal order and for enhancement of the sentence, therefore, the High Court wrongly dismissed the appeal of the appellants. He further contended that when the prosecution has proved its case through direct and confidence inspiring evidence and the same has been believed by the High Court then it was enjoined upon it to award capital punishment under law, but the High Court instead awarded lesser punishment and has also not recorded any reasons for that. The prosecution successfully proved through cogent evidence of eye-witnesses the role of the accused in commission of heinous offence but the Courts below did not appreciate the same against the accused-respondents No. 2 to 6 and 8 to 12. He stated that the impugned judgment has been passed in violation of the settled principles of law and justice and dictum of this apex Court, therefore, the appeal filed by appellants Mst. Mehfooz Fatima and others may be accepted. 10. Conversely, Raja Inamullah Khan, the learned Advocate representing the respondents (in appeal No. 31/2022), stated that the prosecution has failed to prove its case beyond any shadow of doubt. He stated that the complainant and the alleged eye-witnesses not only made improvements in the statements rather almost changed their statements when they appeared before the Court. He further stated that the occurrence happened in daylight when 30/35 shops
---
## Page 7
were opened but no independent witnesses came forward to support the case of the prospection, only interested, inimical and related witnesses have been produced.in support of their story, in such like situation, very strong and independent corroboration is required for conviction which is lacking in the case. He contended that it is the settled principle of law that history of the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.