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Petitioner: MUHAMMAD ASHRAF KHAN TAREEN VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Muhammad Bashir Jehangiri, Abdur Rehman Khan Title: MUHAMMAD ASHRAF KHAN TAREEN vs THE STATE Case No.: Criminal Appeal No,39 of 1991 Date of Judgment:1994-09-26 Reported As: 1995 P Cr. L J 313 Result: Order accordingly
JUDGMENT
JUDGMENT ' ABDUR REHMAN KHAN, J.--- In this appeal, the appellant, assails the correctness and legality of the judgment, dated 6-10-1991 of the learned Additional Sessions Judge, Haripur Camp at Abbottabad, whereby he was convicted under section 302, P.P.C. For the murder of Mazhar Sher Khan, was awarded death sentence and a fine of Rs,50,000 or in default of payment of this amount to suffer further two years' R.I. The appellant was also found guilty of the charge of murder of Raja Amanullah Khan under section 301, P.P.C. Read with section 302, P.P.C. And on this count he was sentenced to imprisonment for life and a fine of Rs,25,000 or for non-payment to remain as prisoner for further one year. He was also held guilty under section 449, P.P.C. For trespass into the Bungalow of the deceased Mazhar Sher Khan and on conviction under the said section he was sentenced to five years' R.I. And a fine of Rs,5,000 or in default to six months' R.I. It was also ordered that fine if recovered should be paid to the legal heirs of the deceased as compensation. 2. In this case the episode occurred on 16-2-1989 at 21-10 hours in the Official residence of the deceased Mazhar Sher Khan who was then Deputy Inspector-General of Police, Abbottabad and was reported to the police by Taus Khan (P.W.13) Head Constable Police who was during those days working as Orderly with the Deputy Inspector-General on the same day, at 21-30 hours. This report when rendered in English would read as under:-- "I was present in the Bungalow. D.I.-G. Mazhar Sher Khan was watching T.V. At about 9-00 p.m. The Telephone Operator, Muhammad Ilyas, informed me that Raja Amanullah Khan, an ExM.PA. And Muhammad Ashraf Khan Tareen have come to meet the D.I.-G. I informed the D.I.-G. Who asked me to make the guests seated and I made them sit in the small room adjoining the Drawing Room. The D.I.-G. Came to meet the guests and had hardly sit when the two accused abused him. Raja
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Amanullah asked 'V d" on which Ashraf Khan fired at the D.I.-G. With "{{URDU TEXT}}" which hit and injured him. I tried to catch hold of Ashraf Khan when Raja Amanullah proceeded towards me and in the meantime Ashraf Khan fired another shot which hit and injured Raja Amanullah. During this time Muhammad Saleem Orderly also reached there. The two accused decamped through the car parked near the door where Driver was already present. The D.I.-G. Has been immediately taken to the hospital." 3. It is to be noted at this stage that Mazhar Sher Khan (D.I.-G.) died of the injuries the next day i,e, 17-2-1989 at 3-50 a.m. In the District Headquarter Hospital, Abbottabad while Raja Amanullah Khan succumbed to the injuries in Pakistan Institute of Medical Science, Islamabad at 10-25 on 24-4- 1989 i,e, more than two months after the occurrence. 4. In order to appreciate the prosecution case in its correct perspective it will be useful and helpful to refer to the relevant evidence examined by the prosecution at the trial. ' P.W.1 is Dr. Shaharyar, Medical Officer, Casualty Department District Headquarter Hospital, Abbottabad who examined Mazhar Sher Khan for his injuries before his death and also conducted his post-mortem examination and had found the following external injuries:-- (1) Fire-arm entry wound present at posterior axillary line at level of 3rd rib in a direction of left to right side obliquely placed from above down. The size of wound 1/2" oval inverted edges, burnt edges. (2) Fire-arm wound present at the supra clavicular region on the left side of neck. Size of wound 1/2" in diameter, circular from left to right obliquely placed within an exit wound with overted edges with the size of 1/2" oval in shape, placed at the level of first thoracic vertebra near the midline towards the right on the posterior aspect of body. ' He also examined Raja Amanullah Khan and found the following external injuries:-- "One fire-arm entry wound on right lowal quardant of about 1/2" diameter, oval shape witk corresponding hole in shirt. No exit wound present. Advised X-ray abdomen. Nature of injury later on." ' P.W.2 is Dr. Azmat Humayun Khan Sunbal, Medical Officer, Federal Government Services Hospital, Islamabad who had conducted post-mortem examination of the deceased Raja Amanullah Khan and who verified the postmortem report Exh.P.W.2/1 as correct. The external injury having old scar could not be particularised by the witness and which can be found in the statement of P.W.1 who initially examined the deceased for his injuries. Mst. Yasmin widow of the deceased Mazhar Sher Khan appeared as P.W.3 and stated that she and her husband were sitting in T.V. Lounge at about 9-00 p.m. And at that time the Orderly Taus Khan P.W. Came there and informed her husband that guests have come. On enquiry he disclosed their names to be Raja Amanullah Khan and Ashraf Khan. He was directed to get the guests seated and switch on the heater. Taus came and informed that the guests have been got seated so Mazhar Sher followed by Taus Khan went to meet the guests. After a few moments she heard report of fire-shot and she took it for a short circuit. In the meantime Mazhar Sher who was held by P.W. Taus Khan came to T.V. Lounge and told her that he has been shot and asked her to take him to the hospital. He was put in the car with the help of Yunas who was cook in the Bungalow and Saleem and was taken to the hospital in a car driven by Rahim. "While on road to the hospital I asked Mazhar Sher who has shot you? And I asked "Raja Amanullah". In answer Mazhar Sher said, "no Ashraf'. When we reached in hospital, immediately after us another car also arrived in the hospital. Rahim P.W., the driver of my car told me that the two persons who alighted from the other car behind us were Raja Amanullah and Ashraf'. Mazhar Sher was taken inside the Emergency Room when Raja Amanullah and Ashraf also came in and Ashraf was shouting that prior to the treatment of D.I.-G. The bullet should be removed from Raja Amanullah. During this time S.S.P., Abbottabad also arrived the emergency room and Mazhar Sher pointing towards Ashraf stated that he had fired at him and that the S.S.P. Should arrest him.
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"Thereafter, S.S.P., Abbottabad caught hold of Ashraf and took him out of emergency room. At that time, Ashraf was swearing that he has shot D.I.-G.". ' P.W.4 is Fiaz Khan Toru, then S.S.P., Abbottabad. He deposed that at about 9-15 p.m. He was hearing news on T.V. When he received a telephone call from the operator of D.I.-G.'s house that Ashraf and Raja Amanullah had come to D.I.-G. House and after firing at D.I.-G. They managed to decamp in Corolla Car. He directed the police line to arrange pilot escort jeep for arresting the decamping accused and himself reached D.I.-G. House. There the S.H.O. Informed him that the D.I.- G. Had been taken to the hospital and "he wished me to follow him to the hospital". So, he followed the S.H.O. In his own car driven by Yunas (P.W.12). He straightway went to the casualty room where he found the D.I.-G. In injured condition. The D.I.-G. When noticed his arrival, looked towards him and pointed towards Ashraf that he was the person who fired at him. He caught hold of him, brought him outside the room and on his search .30 bore revolver was recovered from his possession which had four empties and one live cartridge. The driver Yunas was asked to take him to police station and he was also given the recovered revolver for handing it over to the S.H.O. Yunas was escorted by other police personnel. ' P.W.5 Muhammad Ilyas on receipt of the Murasila from the S.H.O. Registered the case through F.I.R. Exh.PA. (Statements of P.W.6 and P.W.7 are not that much important and are, therefore, not referred). ' P.W.8 Abdul Manan, Inspector, Crime Branch took into possession a spent bullet recovered by the doctor from the dead body of Raja Amanullah at the time of his post-mortem examination through recovery memo. Exh.P.W.8/1 which had been sealed into parcel. He sent this spent bullet to the Arms Expert. He also prepared the inquest report of the said deceased vide Exh.P.W.8./2. ' P.W.9 is Iftikhar Ahmad, S.I. Who is marginal witness to recovery memo. Exh.P.W.9/1 whereby the clothes of the deceased Mazhar Sher Khan were taken into possession. Similarly he witnessed the recovery of various bulbs from different places, in the Bungalow through recovery memo. Exh.P.W.9/2. The Investigating Officer also took a spent bullet recovered from the dead body of the deceased of Mazhar Sher Khan which was sent by doctor through Exh.P.W.9/3 which was also witnessed by this witness. He is also witness to recovery memo. Exh.P.W.9/4 by which the Investigating Officer took into possession white car and from inside the car he recovered the following articles:-- (1) Registration copy in the name of Muhammad Ashraf; (2) An empty Kash (Bandolier); (3) One Klashnikov No,29085 with two magazines having 20 cartridges and its licence in the name of accused Ashraf; (4) Radio licence of the motor-car; (5) Driving licence of accused Ashraf; (6) Copy of licence of .32 bore pistol in the name of Muhammad Ashraf. ' Ghulam Hussain Shah, A.S.I. Who had seized the car belonging to accused Ashraf during the raid and had recovered the articles therefrom as detailed in the memo. Exh.P.W.9/4, made a statement as P.W.10. Muhammad Yunas Driver of the S.S.P. To whom the latter had handed over the accused alongwith revolver of .38 bore, four empties and a live cartridge appeared as P.W.12 and deposed to this effect and also the recovery memo. Exh.P.W.12/1 being its marginal witness. ' The complainant Taus Khan who is also an eye-witness was examined as P.W.13. He enumerated the same fact as alleged by him in the F.I.R. And reproduced in the earlier part of this judgment which need not be reiterated. The Investigating Officer Sadiq Hussain, S.H.O. Police Station Cantt. Was examined as P.W.14. This witness gave details of the steps taken by him in completion of the investigation, explained the recoveries and gave particulars of the various documents prepared by him. There is no need to recapitulate his statement as it would be referred to whenever necessary.
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5. The accused when examined under section 342, Cr.P.C. Pleaded innocence, false involvement on account of ulterior motive and described the entire prosecution case as fabricated, cooked up. He, however, declined to appear in his defence in terms of section 340(2), Cr.P.C. 6. The learned counsel, Dr. Khalid Ranjha, appearing for the appellant at the very outset took exception to preparation of the map of venue of the offence by the Investigating Officer as according to him this offended against Rule 25.13 of the Police Rules, 1934, which lays down that such a plan should be got prepared by Patwari or expert. According to him this site plan prepared by the Investigating Officer is inadmissible in evidence under section 162, Cr.P.C. Being a statement made to the police during the investigation. He supported his submission by the Rule laid down in AIR 1944 Cal. 339, AIR 1962 SC 399, AIR 1956 SC 327 and AIR 1976 SC 1421. ' Mr. Zahurul Haq, who represents the State in his capacity as Special Prosecutor did not dispute the legal proposition as enunciated in the above judgments but while relying on PLD 1976 SC 234, PLD 1979 Pesh. 36, 1983 PCr.LJ 429, submitted that the site plan is not a substantive piece of evidence and even if defect in preparing it is found even then it would not detract from the veracity of the prosecution case or devalue the otherwise proved and unchallenged version of the incident. He also referred to the various parts of the statements of the eye-witness (P.W.13) and the Investigating Officer P.W.14 to prove that their statements on this count i,e, regarding the place of crime has rather been admitted. It is, however, curious to note that the appellant's counsel could not take this plea to its logical conclusion as he did not even remotely point out as to how the alleged flaw would detract from or affect the veracity of the prosecution case or in what manner it would help the defence or would affect the finding of guilt. We were, therefore, unable to understand the logic in advancing the rrgument when at some later stage of the arguments it was conceded that the episode did occur in the official Bungalow of the D.I.-G. i,e, the Bungalow in question but not in the small room or in the manner in which it was described. Under the mentioned Police Rule the Area Police Rule the Area Patwari should only be asked to draw the sketch in those heinous crimes which are connected with land disputes for obvious reason that he has the custody of the record pertaining to the lard under his jurisdiction. Similarly the preparation of the site plan by the expert will be necessary only if the Investigating Officer considers it proper to have the assistance of a technical man otherwise there is no bar to the making of map by the Police Officer who investigates the case. In this case the eye-witness in his Court statement supported the site plan and admitted that it was prepared at his instance and it is not that case where the prosecution merely relies on the testimony of the Investigating Officer, therefore, the principle formulated in the precedent cases would not strictly apply. Moreover, the Investigating Officer himself had recovered a bullet from the room where the occurrence had occurred, therefore, this portion of his statement regarding the recovery is relevant and admissible to determine the place of occurrence. In any case this argument is merely academic in nature as the defence itself did not dispute the site of crime rather he admitted the same as is clear from the following extracts from the statement of the eye-witness (P.W.13) on pages 138, 139, 140 and 141 of the print book:-- "The moment I informed the D.I.-G. About the arrival of the guests he asked me to get them seated in the small room adjacent to T.V. Room. One big and two small Sofas were lying in that room where I got them seated. Usually when the guests visited the D.I.-G. They were made to sit in that room. It is correct that the small room is contiguous to drawing room which in turn is close to Dining Room and the apportionment of T.V. Attached to the Dining Room. .... It is incorrect that the D.I.-G. Asked me to make arrangement for the dry fruit or its despatch to the room meant for guests before he left for the room. The distance between the room where the guests and T.V. Lounge is about 50 paces. It is incorrect that the wife of the deceased had left to meet them. ' Again on page 140:
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' It is incorrect to suggest that the Electricity had failed due to snowfall and break at that time. .... It is correct that I did have talk with any one about the occurrence till the arrival of S.I. Sadiq Hussain at the scene of occurrence at 9-30 p.m. Alongwith .... Duly armed .... The S.H.O. Prepared the site plan at my instance and pointation on the very day thereafter when the S.H.O. Arrived at the spot I was with the children and was summoned to the room where the occurrence took place. It is correct that before writing my report the S.H.O. Sadiq Hussain inspected the room of occurrence." ' Many other parts from this statement and the statement of the Investigating Officer can be referred to show that from the defence side the scene of crime has been admitted but that would burden the judgment unnecessarily. 7. The learned counsel next referred to two newspapers clipping Exh.P.W.4/D-1 and Exh.P.W.4/D-2 appearing at pages 65 and 66 of the print book and argued that the contents of these extracts should have been considered in support of the plea of the appellant which he had introduced by way of suggestion to the eye-witness as is manifest from at page 143 of the Print Book. This suggestion is to the effect. "It is incorrect to suggest that the deceased came to the crime room to meet the guests, served them with Alcohol and during that he abused because he also took the Alcohol (the entire suggestion is incorrect). It is incorrect to suggest that the deceased, accused, Ashraf Khan and deceased Raja Amanullah got drunk and started abusing each other in which deceased Mazhar Sher abused the accused and he was fired at by Raja Amanullah deceased". ' It is interesting to note that in his statement under section 342, Cr.P.C. The accused has not taken any specific plea or stance, but to the question "It is in evidence that on 16-2-1989 at about 9-00 pin. You alongwith Raja Amanullah Khan went to the Bungalow of Mazhar Sher Khan D.I.-G. At Abbottabad. What do you say about it?" his answer was "It is incorrect. I did not visit the Bungalow of D.I.-G. Late Mazhar Sher Khan". It is thus clear from this statement that the accused neither admitted his presence on the spot nor admits the venue of occurrence to be the one as shown by the prosecution but it is amazing that even then insists that the version of the incident as given in the news item should be considered in support of his plea. Exh.P.W.4/D-1 is a news item in "Daily Mustaqbel" dated 17-2-1989 by the Staff Reporter who has described the strife between the deceased and their compeers over gambling while they all were drunk. The other Exh.P.W.4/D-2, dated 18-2-1989 in "Daily Aman" Karachi is from the Staff Report and is also to the same effect and in that too the incident has been shown to be the result of a fall out in gambling on cards and cheating at the time when the deceased of the case and their compeers were not in senses being drunk. It was argued that these news items were are relevant and should have been considered. It was, however, conceded that it could have only be looked into if it had been duly proved on record. It was pointed out that P.W.4 had been asked about it but he did not say that he had contradicted these news items. It was also stressed that the news items could help the Court in forming opinion about the prevailing circumstances in those days. It was argued that the Coin t should have at least read these news clipping but it was conceded that the Court was not bound to have either accepted it or acted on it. Reference was made to the following cases in support of this contention:-- (1) PLD 1993 SC 473, (2) PLD 1963 BJ 14, (3) AIR 1930 Lah. 371. ' The correctness of this argument was disputed by the learned Special Prosecutor. He submitted that these documents were absolutely inadmissible in evidence as no effort was made to prove it because neither the original print copy nor the correspondence which was instrumental in furnishing the information were produced. It was also pointed that even if both the above had been produced even then without the production of the original source of these news no reliance could
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have been placed on it. He distinguished the Rule laid down in PLD 1993 SC 473 and in this contest referred to Article 58(2)(b) of the Constitution as the President of Pakistan could form opinion on the basis of the news items to the limited extent of informing himself about the public opinion. It was submitted that it was not understandable as to how a criminal case can be decided on reports in the news and that too on inadmissible, unproved, unverified and conjectural type of reports. It was also stated that P.W.4 was not legally required to contradict such type of inadmissible reports. He referred to PLD 1986 SC (AJ&K) 120, PLD 1960 Kar. 178, AIR 1961 Pb. 215, AIR 1953 Himachal Pradesh 41 and AIR 192. Lah. 289. ' It is not correct that the trial Judge has not referred to above news cutting but he has in fact not discussed its evidentiary value to the extent it was relied on by the defence. We find on page 209 the contention put up by the defence in respect of the news items which is reproduced. "The learned counsel for the accused emphasized that the vanue of the occurrence was changed and it was not established that the occurrence had taken place in the Bungalow of the late D.I.-G. Because no blood was recovered from the spot at all and news items were published in the newspapers that the venue of the crime was somewhere else: In this regard he referred to cutting of the newspapers copies Exh.P.W.4/D-1 and Exh.P.W.4/D-2 but the perusal of the said items would show that the place of occurrence was mentioned as the Bungalow of the D.I.-G. However, the occurrence was shown to have taken place in different mode". It is thus clear that this point was agitated to the extent of venue of the crime and was answered to that extent. In any case it could not be disputed that these Press Reports only amounted to hearsay and were inadmissible and that no efforts were made by the defence to prove it formally and to produce the Reporter and its source for verification. The appellant has also tried to play hide and seek as he was not bold to admit his presence on the spot and to take a specific plea in the light of the contents of the Press reports which he now relies on. If the precedent of deciding the criminal cases on Press reports is laid then that of course would be a very dangerous one and would frustrate the very purpose of "Qanun-e-Shahadat". The reliance on the rule laid down in PLD 1993 SC 473 is misplaced as the facts and circumstances of that case were entirely different. As that was a case relating to the formation of opinion by the President in term of Article 58(2) of the Constitution and, therefore, the Press report reflecting a certain view which was not controverted by the opposing side were taken into consideration. Similarly the dictum in the other cases relied on by the defence is not attracted as those were formulated in entirely distinct factual background. On the other hand, the judgment referred to from the defence side clearly envisages that the Press reports of the type as in this case amount to hearsay and, therefore, inadmissible. 8. The third objection of Dr. Khalid Ranjha was that the D.S.P. Gulzarullah Khan who had conducted partial investigation in the case, submitted challan in the Court whereas the requirement of section 173, Cr.P.C. Is that it should have been filed in Court by the S.H.O. (P.W.14). It was argued that in view of the law laid down in AIR 1936 PC 253 things should be done as prescribed by law otherwise it should not be done at all. PLD 1962 Kar. 633 was relied to show that this amounted to an illegality which vitiated the trial. It was also in this context pointed out that the statements of witnesses or accused recorded by the D.S.P., Gulzarullah Khan had not been supplied to him which vitiated the trial on account of the decisions in these judgments, 1989 P Cr. L J 316, PLD 1962 Dacca 671, 1985 SCMR 1442, 1986 P Cr. L J 3025. The non-production of Gulzarullah Khan, D.S.P. And Muhammad Amin, S.H.O., Police Station, Bhagnotar was also criticised. The sole purpose for raising these objections was that it prejudiced the appellant in his defence as according to the arguments if Gulzarullah Khan had been produced he would have been asked about the contents of the statement of Raja Amanullah Khan co-accused and Muhammad Amin S.H.O. Could be questioned regarding the statement of the appellant made before him when he was arrested. It was, therefore,
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clarified that if all the above had been brought on the record then the Court would have known the plea of the appellant at the earlier stage. The cases cited in support of this point are AIR 1947 PC 67, PLD 1953 Dacca 10, 1985 SCMR 1442, PLD 1989 SC 226, PLD 1988 SC 99, 1989 P Cr. L J 316, 1987 P Cr. L J 1532-445, 1982 P Cr. L J 10, 1969 P Cr. L J 586, 1978 P Cr. L J 10 and PLD 1962 Dacca 671. ' The learned Special Prosecutor Mr. Zahurul Haq, while answering the above objection submitted that under section 190, Cr.P.C. Any Police Officer can submit the challan in Court and there is no such limitation in the section as argued by the defence. It was also stressed that the statements of all the witnesses and also other available material has been supplied to the accused before the trial which can be satisfactorily concluded from the fact that no such objection was taken during all the time the protracted trial continued. The statement of Raja Amanullah co-accused had not been recorded at any stage as he was not able to make a statement, therefore, the question of supply it to the accused never arose. It was clarified that D.S.P. Gulzarullah Khan had only recorded the statement of P.W.3 Mst. Yasmin and she appeared in Court but was not confronted by the defence with her statement under section 161, Cr.P.C. Meaning thereby that no…
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