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Petitioner: ZAHAR HUSSAIN SHAH and others VS Respondent: SHAH NAWAZ KHAN and others
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Khawaja Muhammad Saeed, Sardar Muhammad Nawaz Khan Title: ZAHAR HUSSAIN SHAH and others vs SHAH NAWAZ KHAN and others Case No.: Criminal Appeals Nos.4, 5 and 40 of 1996 Date of Judgment:1998-10-15 Reported As: 1999 P Cr. L J 1981 Result: Order accordingly
Judgment ORDER ' SARDAR MUHAMMAD NAWAZ KHAN, J.--- The above titled appeals arise out of a single judgment of the trial Court, dated 31-3-1996 whereby Shah Nawaz appellant was awarded a sentence of 25 years' R.I. Alongwith Rs, Fifty thousand as fine and the respondent Rang Baz was acquitted. All the three appeals shall stand decided through this single judgment. 2. A Crime No,43 of 1993 for offence under sections 302/34, and 5 Islamic Penal Laws was registered at Police Station Pallandari on a report of complainant Zahar Hussain Shah wherein it was alleged that his father Syed Murtaza Hussain Shah and Subedar (Retired) Shah Nawaz Khan were having a dispute over a way used for cattle. According to the F.I.R., the aforesaid way was blocked by Subedar (Retired) Shah Nawaz Khan and as such the cattle of the complainant party were obstructed from going to water spring. On 28-7-1993, the complainant party approached Numberdar Bandar Ali an Ex-Member of Local Council of their village to settle down the dispute between the parties over the way. Numberdar Bandar Ali went to the spot and asked Shah Nawaz Khan and others to restore the cattle way but the accused party did not acted upon and the complainant himself removed the stones placed as obstruction in the way on 29-7-1993 morning and took the cattle to water spring. On the same day, at about 2 O'clock Shah Nawaz along with his two sons Mr. Aurang Zeb and Rang Baz again placed obstruction in the way. The aforesaid persons were equipped with .12 bore guns and a pistol .32 bore. The complainant asked them not to block the way .And, on his objection, they attacked on the complainant. The complainant raised hue and cry whereupon his father Mr. Murtaza Hussain Shah also arrived at spot. Mr. Murtaza Hussain Shah (deceased) asked Shah Nawaz and his sons to avoid escalating the situation. Meanwhile Mr. Shah Nawaz, in order to murder him, fired at him with revolver. The bullet of revolver hit Murtaza Hussain
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Shah on the lower part of his belly and the said person after receiving this injury, fell down on the ground. He was being taken to the Pallandari Hospital while in the way he succumbed to the injury and died. This incidence, according to the complainant, was also witnessed by Hassan Shah son of Farman Ali Shah and Azrar Hussain Shah son of Manzoor Hussain Shah. 3. This written report, according to prosecution, was submitted by the complainant to S.H.O. Police Station Pallandari at Barral Bazzar where he was on some official duty. The S.H.O. After receiving this report, made an endorsement on the back of the application and sent it to police station through Constable Muhammad Azad No,1339 for registration of the case. On this report, the aforesaid case was registered at Police Station Pallandari by 2nd Incharge of the police station. 4. The S.H.O. After sending the written application submitted by the complainant, proceeded to place of occurrence situated in Village Barral Khamba Parnian and, thus, started the investigation, according to the prosecution case. 5. The police during investigation arrested Mr. Shah Nawaz and his two sons Aurang Zeb and Rang Baz and after completion of the investigation, the aforesaid persons were forwarded to District Court of Criminal Jurisdiction Pallandari to face the trial for allegations leveled against them. 6. The trial Court, after conclusion of trial, awarded a sentence of 25 years' R.I. With a fine of Rs, Fifty thousand to accused Shah Nawaz and acquitted Rang Baz by giving him the benefit of doubt through its judgment, dated 31-3-1996. Mr. Aurang Zeb absented himself during trial before the competent Court and as such proceedings under section 512, Cr.P.C. Were initiated against him by the said Court. 7. The accused convict Shah Nawaz has challenged the judgment of the trial Court, dated 31-3- 1996 whereas complainant Zahar Shah and the State have also challenged the judgment of the trial Court. The accused convict Shah Nawaz through the above appeal titled Shah Nawaz v. The State claims his acquittal whereas the complainant party want to enhance the sentence awarded by the Court alongwith another appeal to set aside the judgment of the trial Court regarding acquittal of Rang Baz and prayed to award him sentence in accordance with law. 8. The learned counsel for the appellant Shah Nawaz while assailing the judgment and order of the trial Court, argued that the prosecution failed to establish its case beyond reasonable doubt. According to the learned counsel, the case was registered on a belated and fake F.I.R. Which cast a serious doubt on prosecution story. He further contended that oral testimony did not stand corroborated by the post-mortem report. According to the learned counsel, the recoveries made by the prosecution were also doubtful and the evidence when appreciated in its true perspective, clearly shows that a fake case was registered against the convict appellant Shah Nawaz and his two sons. The learned counsel further argued that the-prosecution witnesses were interested and inter-related to the deceased and were also having enmity against the accused party. It was also the case of the learned counsel appearing on behalf of the convict appellant Shah Nawaz that some important witnesses were given up by the prosecution and this very fact also made the prosecution story as doubtful. The Reports of Chemical Examiner and Arms Expert were not permitted by the trial Court to be tendered in evidence and, in absence of the aforesaid reports, the prosecution case further suffered infirmity which should have been resulted into acquittal of the appellant but the trial Court fell in error by convicting him, the learned counsel submitted. The learned counsel for the appellant cited the following authorities in support of his contention. (1) PLD 1988 SC (AJ&K) 207 and (2) PLD 1989 SC (AJ&K) 5. 9. The learned counsel Raja Muhammad Hanif Khan who also represented Rang Baz respondent in the cross-appeal titled Zahar Hussain Shah v. Shah Nawaz and others argued that the trial Court was right to acquit the accused respondent Rang Baz as the prosecution failed to prove its case beyond a reasonable doubt against him. He further submitted that, keeping in view the evidence on record, the entire case against the accused persons was liable to be dismissed but the trial
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Court acted contrary to law by not acquitting the accused appellant Shah Nawaz Khan. As regards the case against Rang Baz accused there was ample evidence to show his innocence and the trial Court committed no error whatsoever while acquitting him, the learned counsel maintained. According to the learned counsel "Tazkiya-Shahood" (purgation) was also conducted through the secret means and the judgment of the trial Court revealed that the eye-witnesses in the instant case were not "Adil". It was also argued on behalf of Shah Nawaz appellant that keeping in view the overall evidence and report about "Tazkiya" of eye-witnesses warranted acquittal of the accused appellant Shah Nawaz but the trial Court failed to appreciate the evidence in accordance with law which resulted into a wrong judgment. 10. The learned counsel representing the complainant and learned Assistant Advocate-General while submitting the case of the prosecution, argued that keeping in view the evidence on record it was necessary for the trial Court to award the capital punishment to the accused appellant Shah Nawaz. According to the learned counsel, the trial Court fell in error while acquitting Rang Baz co- accused. The learned counsel further maintained that there were no contradictions whatsoever in the statements of eye-witnesses and post-mortem report. The contradictions pointed out by the learned defense counsel were of no material importance and such-like minor discrepancies were expected which could not form the basis of acquittal of the accused-appellant. According to the learned counsel, the statement of the doctor who conducted the post-mortem of the deceased pertaining to the hole on the Qameez of the deceased was not trustworthy for an Expert was not expected to depose as such and the trial Court rightly disbelieved his testimony to this extent. It was also argued that there was no reason to disbelieve the depositions made by the eye- witnesses on account of relationship with the deceased as they had no enmity with the accused party. The medico-legal report and other circumstantial evidence was also in corroboration with oral testimony and it was obligatory for the trial Court to award a capital punishment to the accused appellant Shah Nawaz. The learned counsel, while controverting the arguments advanced on behalf of defence, argued that the points raised by the defence were not of worth consideration for the reason that those did not find any support from settled principles of law. The learned counsel further submitted that even if the medico-legal report stood excluded from the evidence, the direct evidence was sufficient to convict the accused person. The learned counsel for prosecution submitted the following case-law to support his version. (1) 1993 PCr.LJ 1036, (2) 1995 PCr.LJ 789 (804), (3) PLD 1995 SC 46, (4) PLD 1976 SC 53 (452), (5) 1990 SCMR 1272, (6) 1996 SCR 197 and (7) 1991 PCr.LJ 2110. 11. We have heard the learned counsel for the parties and perused the record with the care and caution. 12. To arrive at some conclusion, it is felt expedient to keep the respective versions of the parties in sight. The prosecution case is that on the relevant date, the accused party assaulted the complainant party by equipping themselves with .12 bore guns and .32 bore pistol. The deceased, while he was asking the accused party to avoid any conflict, stood face to face in a straight position at a distance of 1/3 Karam (less than two feet) from accused Shah Nawaz; was hit by a revolver bullet fired by the aforesaid accused. The victim and the assailant did not scuffle each other. The deceased did not die instantly but he expired in the way while he was being taken to hospital. The complainant who was also going to hospital alongwith his injured father proceeded ahead to lodge F.I.R. After the death meaning thereby that he did not return to home with the dead body and the dead body was taken back to home by (P.Ws.) Azrar Hussain Shah and Hassan Muhammad Shah. The complainant submitted'a written report to S.H.O. Police Station Pallandari at Barra Bazar from where he accompanied S.H.O. Towards placC of occurrence. The written report was sent to police station with an endorsement on its back through constable Muhammad Azad whereupon the case against accused party was registered. Whereas the case of defence is that
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accused Shah Nawaz Khan did not murder the deceased but the fact of the matter is that P.Ws. Zahar Hussain Shah and Azhar Hussain Shah attacked the accused party and the deceased intervened and tried to stop them from going towards accused party. The complainant obeyed his father whereas P.W. Azrar Hussain Shah who was armed with .30 bore pistol attacked on the accused party but the deceased Murtaza, Hussain Shah scuffled with him in order to avoid some conflict and during the course of scuffling the pistol of Azrar Hussain Shah went off and, thus, the deceased sustained bullet injury which ultimately resulted into his death. The defence version put forward by defence counsel during crossexiinination is reproduced as below. It looks proper to reproduce the relevant portion of statements of eye-witnesses. The statement of P.W. Zahar Shah at pages 56, 57, and 58 is reproduced as under:--{{URDU TEXT}} ' The P.W. Azrar Hussain Shah on page No,62 (back) and 64 (back) depOsed as below:-- ' {{URDU TEXT}} ' The relevant extract of P.W. Hussain Shah on page 71 reads as follow:-{{URDU TEXT}} 12. It is evident from the above referred portions of evidence that the deceased stood straight and face to face to the accused Shah Nawaz at the time of bullet fire. The medico-legal report shows the exit wound on the left buttock and entrance wound on the right side downwards umbilicus. Normally the exit wound should have been on the right side of back if both the assailant and victim were standing face to face in straight position at the time of fire. However, it is possible that the victim or even assailant might have changed the direction before the bullet hit the victim. But the question arises as to how the hole having blackening of 7-1/2 c.m. In diameter around it is on the left side of "Qameez" front. This hole shows that the bullet hit the deceased on left side of chest but the post-mortem report shows the entrance wound on the right side below umbilicus. This is not possible when the case is of single bullet. We have examined the Qameez of the deceased also. It clearly shows that observations of doctor Rashid Yacloob are correct. The hole having blackening around it there on left side of Qameez front shows that the bullet was fired in close contact with the body of the deceased. The nature of hole shows that the barrel of pistol was in touch with the body of the deceased otherwise such-like hole having diameter of 7-1/2 c.m. Is not possible if the bullet is fired from a distance. The Qameez admittedly is of the deceased. This fact makes, the prosecution case highly doubtful and we are of the firm view that {{URDU TEXT}} The matter becomes clear when the evidence of eye-witnesses and defense versions is placed in juxta position. The relevant portions of the eyewitnesses and defense version have already been reproduced in the earlier part of the judgment. 13. According to prosecution witnesses, the victim and the assailant were face to face standing in a straight position at the time of bullet fire and they did not scuffle each other whereas the defense version is that P.W. Azrar Hussain Shah wanted to attack Shah Nawaz accused with a .30 bore revolver in his hand whereupon the deceased Murtaza Hussain Shah intervened and tried to snatch the pistol. They scuffled with each other and during scuffling the pistol in the hand of Azrar Hussain Shah went off and, thus, injured the deceased which ultimately resulted into his death. The oral testimony and the defense version when weighed, the balance tilts on the side of the defense for the reason that during scuffling the Qameez of the deceased might have been pulled from left to right side. As it is not the case of prosecution that the assailant and the victim scuffled each other, there remains nothing but to accept the defense version. Another important aspect of the case is that the observation made by the doctor at the time of post-mortem was very well in the knowledge of the prosecution but it failed to explain this contradiction during recording of evidence in the Court. Therefore, the prosecution story is not acceptable. It is true that people can tell lie but not the circumstances. 15. The P.Ws. Especially the eye-witnesses who happened to be interested and inter-related to the deceased having a previous grudge on account of a dispute over a cattle way blocked by accused
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party narrated a parrot like tale. The reference may be had to the portion of statement of P.Ws, Zahar Hussain Shah and Azrar Hussain Shah at pages 62 and 64 wherein they made such a deposition which is not acceptable. The aforesaid eye-witnesses while making their statements in the Court stated the distance of assailant while firing from the deceased as 1/3 Karam (less than 2 feet). This deposition was not made in answer to any question from any side but at their own they stated like that. The same distance exactly appears in medico-legal report and side plan prepared by Patwari Halqa. It means that the eye-witnesses attempted to make their statements in line with the testimony of Patwari who also prepared the side sketch in accordance with the post-mortem report. The common man is not expected to give such a accurate distance in terms of Karam (Revenue term) and furthermore, it is also beyond expectation for a common man to convert Karams into feet so accurately. It shows that eye-witnesses were tutored by the prosecution in the light of medico-legal report and site ketch prepared by the Patwari to make their statements in line with the medico-legal report. The prosecution story is not trustworthy having nothing in it to be believed for a person of normal prudence. 16. The evidence of two eye-witnesses namely Zahar Hussain Shah (complainant) and Azrar Hussain Shah when seen through another angle makes the prosecution story as doubtful. The aforesaid eye-witnesses while making their statements before the trial Court deposed that the deceased after receiving bullet injury by Shah Nawaz accused fell down on the ground and was beaten by the co-accused Aurang Zeb and Rang Baz with the butt of riles but this depositions does not find any corroboration by medico-legal report or injury sheet prepared by Investigating Officer. There is only one fire-arm injury showing its entrance and exit on the person of the deceased according to the medico-legal report. It is correct that the Courts are to sift the grains out of chaff and the maxim "falsus in uno falsus in omnibus" has not been acted upon by the Courts in recent past but nevertheless a false deposition in a statement more or less affects the prosecution story adversely and testimony of such a nature loses its weight to some extent. 17. The argument that the bullet was fired from a close distance of less than two feet and there was every possibility that the Qameez worn by the deceased at the time of occurrence might have slipped to the right side is devoid of any force. The hole having a blackening around it is on the left side of the chest just below the left shoulder. It is not possible that the Qameez was slipped over to such an extent that it went downwards to the right side below umbilicus where the entrance wound exists especially when the assailant and victim were in standing position at the time of bullet fire. It cannot he accepted by any stretch of imagination that a Qameez being in worn position can go downwards to the seat of injury on the person of the deceased. 18. Similarly the argument advanced on behalf of prosecution that the direct evidence is sufficient for conviction of accused persons even if the medico-legal report is excluded might he correct provided the same was of confidence inspiring to such an extent that the circumstantial evidence in shape of postmortem report looses its weight in presence of such direct evidence. It is also correct that in some criminal cases the nature and extent of direct and circumstantial evidence is such that there is no alternative but to accept the direct evidence by giving preference over circumstantial evidence in shape of medico-legal report etc. But the facts and circumstances of the instant case are of such a nature which warrant to assess the respective versions of the parties by keeping direct and circumstantial evidence in juxta-position. 19. The recovery of pistol as weapon of offence is not of much importance because the Report of Forensic Expert was not allowed to he tendered in evidence by the trial Court. However, it further makes the prosecution case as doubtful. The prosecution version about the recovery is that the pistol (weapon of offence) was recovered at the instance of convict accused in presence of marginal witness and furthermore, a licence copy taken into custody also shows the pistol as ownership of the convict accused. The same pistol and fire empty were sent to Forensic Expert and
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the report of the Expert shows that the empty was fired by the pistol, whereas the defence stand is that the pistol was neither recovered at the pointation of the accused Shah Nawaz nor he used any pistol during incidence. The fact of the matter, according to defence, is that the police themselves took the Pistol No,2647 owned by Shah Nawaz from his house through another person by adopting coercive method. The pistol when examined by the police was not found in working order and police then, with the connivance of the complainant party, managed another pistol bearing a different number. The police themselves fired a bullet by the same pistol and an empty was sent to the Expert to make recovery in equation with the prosecution. The relevant extract is given below (Cross-examination on Investigating Officer):-- {{URDU TEXT}} ' We examined the pistol also. A clear attempt to change the number of pistol has been made failing which No,2647 was engraved on a separate place to tally it with the number that finds place on licence copy. Moreover, pistol reportedly recovered at the instance of the convict accused remained in the custody of police for a pretty long long time with no plausible explanation through the evidence. The police employee who took the pistol to the Expert was also not produced as witness. Therefore, the story of recovery of pistol at the pointation of Shah Nawaz also appears to be fabricated. The reason given by the trial Court to rely on this recovery cannot be accepted because the record of the weapons in the office of licence authority cannot help in this regard. The trial Court failed to keep the version of defence in mind. The defence stand is that the pistol bearing No,2647 alongwith a licence copy bearing the same number taken into possession through another person was not in a working order and it was changed during investigation. Had it been the case of the defence that pistol and licence bearing No,2647 were not the ownership of the convict accused then of Courts, the record present in the office of Licensing Authority would have helped in' this regard. Furthermore, the clear evidence to show an attempt to change the number of pistol coupled with the delay in sending it to Expert suggest to draw an inference against the prosecution. The evidence. Of marginal witnesses is also not trustworthy because Hassan Shah P.W., per purgation report and in the opinion of the trial Court is not "Adil" and other witness also a close relatives of the deceased especially when impartial evidence was present at the relevant time. 20. Now let us see to what extent the prosecution succeeded to establish its case beyond reasonable doubt as it is settled principles of law that the prosecution is always under heavy burden to prove its case irrespective of the fact that what stand is taken by the defence and whether or not it proved the version taken by it. 21. Though the prosecution has enlisted as many as 18 witnesses out of which 16 were produced in the Court but the material evidence that warrants to he debated is that of eye-witnesses. Post- mortem report. a pistol allegedly recovered from convict accused and the statement of Investigating Officer. The other evidence in shape of blood-stained clay, Report of Chemical Examiner and Forensic Expert Report are of not much importance in this case. The Report of Chemical Examiner and Forensic Expert were not allowed to be tendered in evidence by the trial Court and moreover the recovery of blood-stained clay etc. Are not disputed. 22. The respective stand taken by the parties tend to show that the presence of eye-witnesses Zahar Hussain Shah and Azrar Hussain Shah is admitted during incidence. The controversy is only to the extent of manner of occurrence and the same needs to be resolved with the help of the evidence on record. 'The material evidence has already been discussed which shows that the prosecution failed to establish its case above suspicion. 23. The F.I.R. In the instant case and its reception at Barra! Bazar also appears to be the result of fabricated story. The F.I.R. When seen in the light of the statement of P.Ws. Numberdar Behdar Ali, Tanweer Hussain Shah and Investigating Officer Mr. Muhammad Kabeer Khan, makes the same as
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doubtful document.. The relevant portion of statement of P.W. Behdar Ali on page 80 (back is reproduced as below:--{{URDU TEXT}} 24. Likewise the relevant statement of Tanweer Hussain Shah P.W. Is also reproduced as under on page 78 (back).. {{URDU TEXT}} 25. According to P.W. Numberdar Bandar Ali, he remained present near the dead body till the darkness at the relevant date and left for home by 8 p.m. And by then police did not reach the spot. The statement of Tanweer Hussain Shah also corroborates the statement of Numberdar Bandar Ali. 26. The statement of P.W. Numberdar Behdar Ali is of worth consideration for the reasons that according to prosecution and in the opinion of trial Court too he…
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