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Petitioner: TARIQ HUSSAIN VS Respondent: StateHonorable Justice Syed Arshad AliRazaullah and Sahibzada Assadullah,Rashid Ali Khan
2019 P Cr. L J Note 124 [Peshawar (Mingora Bench)] Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ TARIQ HUSSAIN---Appellant Versus The STATE through Additional Advocate-General, Khyber Pakhtunkhwa and others---Respondents Criminal Appeal No. 100-M and Criminal Revision No. 33-M of 2018, decided on 18th February, 2019. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 201 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, common intention, possessing illicit weapon---Appreciation of evidence---Accused committed murder of nephew of the complainant and injured another person---Motive behind the occurrence was disclosed to be that both the accused were used to tease the deceased---Record showed that the offence was committed at about 19:00 hours in a thickly populated area and in front of a hotel---Complainant was not the eye-witness to the occurrence and at the relevant time he was not present at the place of occurrence, however, he had lodged the FIR at 19:35 hours---Complainant did not mention in the FIR that on whose information he had narrated the mode and manner of the occurrence---Complainant did not mention the name of alleged eyewitness in his first information report, however, such omission would not render the entire prosecution case doubtful for the reason that the complainant had frankly conceded that he was not an eye-witness to the occurrence---Complainant had only set the prosecution case in motion being the uncle of deceased and the injured/witness who at the relevant time were fourteen and sixteen years of age respectively as per their injury sheets---Mode and manner of the occurrence had been narrated by eye-witnesses including injured---Injured appeared in support of the prosecution case and narrated the prosecution case in his court statement---Although, said witness had not mentioned about the presence of the eye-witness in his examination-in-chief, however, in cross-examination he had fully explained the incident by mentioning that the eye-witness not only saw the occurrence but stated that said eye-witness and some other persons took him to the hospital---Presence of said eye-witness at the spot was also established from the medical evidence which clearly mentioned that then injured (now deceased) was brought by eyewitness and was identified at 7:30 p.m.---Non-mentioning the name of eye-witness in the FIR by complainant would not lead to an inference that eye-witness was not available at the spot---Evidence of eye-witness, in circumstances, could not be disbelieved---Despite lengthy cross-examination, said witness remained consistent and firm in his testimony---Injured/eye-witness had also supported the prosecution case---Evidence furnished by Medical Officer was also in line with the prosecution case---Source of light was not recovered by the Investigation Officer through recovery memo---Record/evidence showed that the offence had committed in Bazar/market in front of a hotel and in the normal course of business in Bazar, the presence of light i.e. bulb could not be ruled out---Mode and manner of the occurrence narrated by the prosecution witnesses, whereby the accused got hold of deceased enabling the co-accused to inflict dagger blows on his chest and thereafter when the co-accused was held by the injured and taking knife from him and injuring the injured clearly showed that the present accused-appellant was also sharing common intention with the co-accused---Prosecution, in circumstances, had established its case beyond any doubt---Appeal was dismissed, in circumstances. Muhammad Mushtaq v. The State PLD 2001 SC 107; Muhammad Basharat v. The State 2003 SCMR 554; Iftikhar Ali v. The State 1998 PCr.LJ 2022; Abdul Rauf and others v. Mehdi Hassan and others 2006 SCMR 1106; Muhammad Waris v. The State 2008 SCMR 784; Muhammad Riaz alias Riasti and another v. The State 1987 SCMR 177; Gheba and others v. The Crown PLD 1949 Lah. 453 and Muhammad Akbar and 2 others v. The State PLD 1991 SC 923 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 201 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, common intention, possessing illicit weapon---Appreciation of evidence---Delay of about one hour and twenty minutes in lodging the FIR---Effect---Record showed that offence was committed at 19:00 hours, whereas it was reported at 19:35 on the same day---Overwriting appeared on the 'Murasila' relating to the time of occurrence and the time of report---Said overwriting did not affect the prosecution case, because the time of report and registration of FIR had been mentioned without any overwriting---Time of examination of then injured (deceased) also appeared in the medical report as 7:30 p.m. therefore, said overwriting was inconsequential and did not appear to be the result of manipulation. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 201 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13--- Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, common intention, possessing illicit weapon---Appreciation of evidence---Recovery of weapon of offence from accused persons---Reliance---Scope---Record showed that the weapon of offence i.e. dagger, was recovered vide recovery sketch memo on the pointation of both the accused in presence of its marginal witnesses---Recovery had been conducted on the joint pointation, which prima facie was illegal, however, said recovery was only a corroborative piece of evidence. [Para. 16 of the judgment] (d) Criminal trial--- ----Evidence---Corroboration---Where the eye-witnesses remained firm and straight-forward in their testimony before the court then they did not require further corroboration from circumstantial evidence. [Para. 16 of the judgment] Shafqat Ali and others v. The State PLD 2005 SC 288 rel. (e) Criminal trial--- ----Witness---Minor discrepancies in the statements of prosecution witnesses---Effect---With the passage of time it was very natural that the witnesses might have not been unanimous on minor narrations. [Para. 17 of the judgment] Razaullah and Sahibzada Assadullah for Appellants (in Criminal Appeal No. 100-M of 2018). Rahim Shah, Assistant Advocate-General for the State (in Criminal Appeal No. 100-M of 2018). Rashid Ali Khan for the Complainant/Respondents (in Criminal Appeal No.100-M of 2018). Rashid Ali Khan for Petitioner (in Criminal Revision No. 33-M of 2018). Rahim Shah, Assistant Advocate-General for the State (in Criminal Revision No. 33-M of 2018). Razaullah and Sahibzada Assadullah for Respondents (in Criminal Revision No. 33-M of 2018). Date of hearing: 18th February, 2019. CONSOLIDATED JUDGMENT SYED ARSHAD ALI, J.---Through this single judgment, we propose to decide this Criminal Appeal bearing No. 100-M/2018 as well as the connected Criminal Revision bearing No. 33-M/2018, as both these matters emanate from one and the same judgment dated 14.04.2018 handed down by the learned Additional Sessions Judge/Izafi Zila Qazi Khwaza Khela Swat, in case FIR No. 638 dated 08.11.2014 registered under sections 302, 324, 201, 34 of the Pakistan Penal Code, 1860 ("P.P.C.") read with section 13 of Pakistan Arms Ordinance, 1965 ("A.O.") at Police Station Khurshid Khan Shaheed (Khwaza Khela), District Swat, whereby the appellant namely Tariq Hussain was convicted and sentenced under different sections of law in the following manner:- Under section 302(b), P.P.C. to life imprisonment along with payment of compensation of Rs. 200,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C., or in default thereof, shall further undergo 6 months' simple imprisonment. The said compensation shall be recovered as arrears of land revenue from the person and Estate of the convict. Under section 324, P.P.C. to 5 years' simple imprisonment for attempting at the life of injured Izaz along with fine of Rs.50,000/-, or in default thereof shall further suffer 6 months simple imprisonment. Under section 201, P.P.C. to 3 years' simple imprisonment along with fine of Rs. 25,000/-, on in default thereof shall further undergo 3 months simple imprisonment. All the above-referred sentences shall run concurrently, however, the accused/appellant was extended the benefit of section 382-B, Cr.P.C. 2. As per prosecution story, the complainant, Rahmat Ali, PW-1 on 08.11.2014 at 19:35 hours reported the incident to Qibla Alam Khan, SI, PW-6 at Khwaza Khela hospital about the murder of his nephew Hasham Khan and causing injury through dagger blows upon the body of other injured Izaz by the present accused/appellant Tariq Hussain and other co-accused Arif Hussain. The motive behind the occurrence was disclosed to be that both the accused used to tease the deceased Hasham Khan. In view of the report of the complainant the Murasila Ex.PW-1/1 was drafted which culminated into FIR, Ex. PA being registered against the accused/appellant and other co-accused at PS concerned on 08.11.2014. 3. Investigation of the case was entrusted to Muhammad Umar, ASI, PW-13 who has stated that on 08.11.2014 at about 20:00 hours the Muharir of the police station concerned informed him in respect of the occurrence which took place in Khwaza Khela Bazar, therefore, he rushed to the Khwaza Khela hospital where Qibla Alam Khan, ASHO, PW-6 handed over to him the 'Murasila'. During investigation, he has taken into possession blood stained garments of the deceased Hasham Khan having on front two corresponding cuts of dagger vide recovery memo Ex. PW-10/1, which was sealed in parcel No. 1 Ex. P-4. He has also taken into possession blood stained garments of the injured Izaz having dagger blows cuts on back side vide the said recovery memo Ex. PW 10/2. He has also prepared site plan Ex. PB on the pointation of the eye-witnesses. He has collected blood from the spot through 'Gatta/' and white tissue paper from the places of the deceased and the injured vide recovery memos Ex. PW-8/1 and Ex. PW-8/2 along with one pair of a Chappal black colour of the deceased Hasham Khan vide recovery memo Ex. PW-8/3. During investigation, on pointation of the accused Tariq Hussain the police recovered the weapon of offence i.e. blood stained dagger (Ex.P-9), which was taken into possession by the Investigation Officer and in this regard he prepared pointation memo Ex.PW-13/5 along with recovery sketch Ex. PW-13/6. The recovered articles were sent to FSL vide application Ex. PW-13/8. He has also prepared the list of legal heirs of the deceased Ex. PW-13/11 and as per opinion obtained from D.P.P concerned sections 201, P.P.C. and 13, A.O. were added against the accused through addition memo Ex.PW-13/12. He has also placed on record the FSL report Ex. PW-13/13. Upon completion of the investigation, complete challan was forwarded to the SHO concerned for onward submission. 4. During the course of trial, the prosecution examined as many as 17 witnesses whose statements were recorded and placed on file. On closure of the prosecution evidence, accused was examined under section 342, Cr.P.C., wherein he denied the charges, claimed innocence and stated to have falsely been implicated in the case. 5. On conclusion of the trial, the learned Additional Sessions Judge/Izafi Zilla Qazi Khwaza Khela Swat, convicted and sentenced the accused/appellant, vide the judgment impugned herein, hence the present appeal. 6. The learned counsel appearing on behalf of the appellant have argued that the prosecution before the lodging of FIR has conducted a preliminary inquiry as allegedly the complainant Rahmat Ali, PW-1 was not the eye-witness of the occurrence and in the FIR the person who informed him about the occurrence i.e. Mohsin Khan, PW-2 was not mentioned. Furthermore, have argued that the allegations in the FIR made by the complainant was never endorsed either by PW -2 Mohsin Khan or the injured/witness Izaz Khan, PW-3. Next argued that the alleged injured/witness Izaz Khan despite the fact that at the relevant he was conscious did not register the FIR in person and furthermore he has not mentioned the name of Mohsin Khan, PW-2, the alleged eye-witness of the occurrence in his examination-in-chief, therefore, he is not a truthful witness. They have further argued that the alleged independent witnesses i.e. shopkeepers of the Bazar were not examined by the prosecution and have further stated that the mode and manner of the offence was introduced later. They have also contested the arrest of the appellants and have also attacked the recovery of alleged dagger i.e. the weapon of offence being result of the joint pointation of both the accused having no independent corroboration. They have further drawn the attention of the Court to the overwriting on the `Murasila' as well as in the FIR and the medical report and have also argued that although it is mentioned that there were light, however, no attempt was made by the prosecution to place on record the alleged source of light i.e. bulb. They have lastly argued that the mode and manner of the occurrence does not suggest that both the accused were allegedly sharing the common intention as the occurrence took place at the spur of the moment. 7. Conversely, the learned counsel appearing on behalf of the complainant has argued that the FIR is only meant to set in motion the law and the complainant who is not an eye-witness of the occurrence is not required to provide minute details of the incident in the FIR. He has further argued that the time, date, mode and manner of the offence were successfully established by the prosecution through an independent witness Mohsin Khan, PW-2 and the injured/witness Izaz Khan, PW-3 and despite lengthy cross-examination of the aforesaid witnesses by the defence there is no major discrepancy in their testimony to disbelieve them. He has further argued that indeed it is a quality of the evidence which is required for prosecution to establish the guilt of the accused and not the quantity of the evidence. The learned Astt: Advocate General appearing on behalf of the State has also supported the contentions of the learned counsel for the complainant. 8. We have heard arguments of the learned counsel for the accused/appellant, learned counsel for the complainant and learned Assistant Advocate General appearing on behalf of the State and have gone through the record of the case with their able assistance. 9. According to the prosecution story, the offence was committed at about 19:00 hours in a thickly populated area i.e. the market/Bazar of Khwaza Khela and in front of Anwar hotel. True, that the complainant Rahmat Ali, PW-1 is not the eye-witness to the occurrence and at the relevant time he was not available at the place of occurrence, however, he had lodged the FIR at Khwaza Khela hospital at 19:35 hours, where he did not mention that on whose information he had narrated the mode and manner of the occurrence. He also did not mention the name of PW-2 Mohsin Khan in his first information report, however, in our humble view, this omission would not render the entire prosecution case doubtful for the reason that the complainant has frankly conceded that he was not an eye-witness to the occurrence. Therefore, he has only set the prosecution case in motion being the uncle of deceased Hasham and the injured/witness Izaz who at the relevant time were of the age 14 and 16 years respectively as per their injury sheets. 10. The mode and manner of the occurrence has been narrated by PW-2 Mohsin Khan and injured/eye-witness Izaz Khan, PW- 3 to the effect that at the relevant time the deceased Hasham Khan and injured Izaz were going towards the house of their grandfather, however, at 'Isha Vela' at about 7:00 p.m. when they reached near Anwar hotel, there the convicts Arif and Tariq both sons of Dost Muhammad Khan emerged and Tariq the convict got-hold of Hasham Khan and Arif Hussain had inflicted dagger blows at Hasham Khan. In order to save his brother, the injured Izaz got-hold of Arif, in the meanwhile, Tariq released Hasham deceased and took the dagger from Arif and had inflicted a dagger blow at his back (Izaz). 11. In support of the prosecution case, Izaz Khan appeared as PW-3 who has narrated the aforesaid story in his Court statement. Although, he has not mentioned about the presence of the eye-witness Mohsin Khan, PW-2 in his examination-in-chief, however, in cross-examination in response to a query of the defence he has fully explained the incident by mentioning Mohsin not only to have seen the occurrence but has stated that the said Mohsin and some other persons had taken him to the hospital. Furthermore, the presence of Mohsin at the spot is also established from the medical evidence which clearly mentions that the then injured now deceased Hasham was brought by Mohsin and was identified by Qibla Alam, ASHO at 7:30 p.m. on 08.11.2014. 12. The said eye-witness Mohsin Khan appeared as PW-2 who has fully supported the case of prosecution. The said Mohsin Khan is not related to the complainant and works as police constable and has not only justified his presence at the spot but the medical report also established the presence of Mohsin to have brought the then injured now deceased Hasham to the hospital. Therefore, Mohsin Khan is indeed a natural and an independent eye-witness. The defence has not given even a remote suggestion to him regarding his interest in the prosecution of the appellants. Thus, in the circumstances, for the only reason that the complainant did not mention his name in the FIR will not lead to an inference that he was not available at the spot. In this regard, reliance is placed on the judgment of august Supreme Court of Pakistan titled "Muhammad Mushtaq v. The State" (PLD 2001 Supreme Court 107)", wherein it was held by that:- "Eye-witness although was not named in the FIR, yet he was a natural witness to whom no enmity or ulterior motive was attributed for false involvement of accused in the commission of the offence and his deposition was found to be true." This view further reflects in the judgment of the august Supreme Court of Pakistan titled "Muhammad Basharat v. The State" reported as 2003 SCMR 554, wherein it was observed that:- "Eye-witnesses were the natural witnesses of the occurrence and their testimony inspired confidence. Fact that the eye-witness had not been named in the FIR was not by itself sufficient to discard his testimony. Ocular evidence was corroborated by medical evidence. Leave to appeal was refused to accused accordingly." Even this Court in case law titled "Iftikhar Ali v. The State (1998 PCr.LJ 2022 Peshawar)", has held that:- "Non-mention of the names of eye-witnesses in the FIR and the site plan was not fatal as the FIR was not made by an eye-witness or relative of the deceased and the site plan was not a substantive piece of evidence." Thus, there exist no occasion to disbelieve the evidence of PW-2 Mohsin Khan, more particularly in circumstances that despite the lengthy cross-examination by the defence he remained consistent and firm in his testimony. Even he has exactly mentioned the places where at the relevant time the complainant-party as well as the accused-appellants were present. 13. Izaz Khan, PW-3 the injured/eye-witness has also supported the prosecution case. Since he has sustained injury on his thigh and was immediately shifted to the hospital where his injury-sheet was prepared and was further shifted to Saidu Teaching Hospital for further treatment. Thus, the presence of this injured/PW at the spot is also established. In the circumstance, it cannot be believed that the present appellant was substituted for the real culprits. In this regard, reliance is placed on the judgment of august Supreme Court of Pakistan titled "Abdul Rauf and others v. Mehhi Hassan and others" (2006 SCMR 1106)", wherein it was held that:- "Presence of eye-witnesses who had received fire-arm injuries at the place of occurrence at the relevant time was not open to any doubt. None of the eye-witnesses was shown to have any motive or ill-will to maliciously implicate the accused in the case." This ratio has further been affirmed by the august Supreme Court of Pakistan in case titled "Muhammad Waris v. The State (2008 SCMR 784)", wherein it was held that:- "Eye-witness had explained their presence at the place of occurrence at the relevant time and thus, they were natural and independent witnesses of the incident. Medical evidence was not destructive of the ocular testimony." 14. The medical evidence furnished by Dr. Khairun Nabi, PW-11 is also in line with the prosecution case. According to the medical report, the then injured now deceased Hasham Khan in a critical condition was brought to the hospital at 7:30 p.m. on 08.11.2014. According to the medical report, he has sustained the following injuries:- External Appearance: > Mark of ligature on neck and dissection:- Nill > Condition of subject: fresh 1) cut wound with sharp instrument across the chest over sternum (Bone). Cutting the sternum and 02 ribs and cutting the heart lower boarder (3.5" in length and deep to heart). 2) Cut wound on left side of chest near to apex 1-1/2" in length and 3 cm deep. Walls, Ribs and cartridges:- 2 ribs cut (6-7) right side. Plura:- Left side cut. Right lung:- cut Pericardium and heart:- both cut. Injury of chest:- 2 ribs and sternum cut. Patient was brought to casualty before expiry. He died on the table of casualty. Cause of death:- direct injury to heart internal and external bleeding. The cause of death of deceased Hasham Khan was also confirmed by the doctor. 15. Moving on further to the objection of the learned counsel for the appellant regarding overwriting on the 'Murasila', FIR and the medical report of the injured/eye-witness Izaz. According to the prosecution case, the offence was committed at 19:00 hours, whereas it was reported at 19:35 on the same day i.e. 08.11.2014 and the FIR was registered at 20:20 hours on the same date. Although, the overwriting appears on the 'Murasila' relating to the time of occurrence and the time of report. This overwriting prima facie appears that probably initially the time of occurrence was written as 07:00 and the time of report as 07:35, later it was made as 19:00 and 19:35 to bring it in conformity with the conventional standard of mentioning the time in FIR. However, this overwriting does not effect the prosecution case, because the time of report and registration of FIR has been mentioned without any overwriting. Furthermore, the time of examination of the then injured now deceased Hasham also appears in the medical report is 7:30 p.m. Therefore, this overwriting is inconsequential and does not appear to be the result of manipulation. Moreover, PW-6 Qibla Alam Khan, ASHO who has drafted the 'Murasila' when was confronted with the same situation of overwriting who have fully explained the same in his cross-examination. Hence, this objection is also overruled. 16. The learned counsel for the appellant have also attacked on the recovery weapon of offence i.e. dagger, which was recovered vide recovery sketch memo Ex. PW-13/5 on the pointation of both the accused i.e. Tariq Hussan accused/appellant in the instant appeal and Arif Hussain accused/appellant in the connected appeal in presence of its marginal witnesses. The recovery has been conducted on the joint pointation, which prima facie is illegal, however, this recovery is only a corroborative piece of evidence and it is settled law that when the eye-witnesses remained firm and straight-forward in their testimony before the Court then they do not require further corroboration from circumstantial evidence. In this regard, wisdom is derived from the judgment of the august Supreme Court of Pakistan titled "Shafqat Ali and others v. The State (PLD 2005 Supreme Court 288)", wherein it was observed that:- "If a witness has furnished wholly reliable evidence. It is bound to be accepted even without corroboration, whereas halfly reliable evidence needs strong corroboration for its acceptance." 17. The learned counsels for the appellant have also referred to certain minor discrepancies in the evidence of prosecution witnesses, however, on the major point they remained consistent and with the passage of time it is very natural that the witnesses may not be unanimous on minor narrations. 18. As far as the objection of the learned counsel for the appellants that allegedly the occurrence has taken place at 7:00 p.m. and the bulb i.e. source of light was not recovered by the Investigation Officer through recovery memo. However, it is a matter of record/evidence that the offence was committed in Bazar/market in front of a hotel and in the normal course of business in Bazar the presence of light i.e. bulb cannot be ruled out. 19.…
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