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Petitioner: ZARDULLAH KHAN VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Mian Muhammad Ajmal, Shah Jehan Khan Yousafzai Title: ZARDULLAH KHAN vs THE STATE Case No.: Criminal Appeal No,123 of 1995 Date of Judgment:1997-09-03 Reported As: 1998 MLD 855 Result: Appeal dismissed
JUDGMENT
JUDGMENT SHAH JEHAN KHAN, J.---The appellant alongwith his father Zarin, brothers Saadullah Khan and Sher Zamin were tried by the Additional Sessions Judge/Izafi Zilla Qazi Malakand at Dargai in a case F.I.R. No,131 dated 9-11-1993 registered under section 302/307/34, P.P.C. for committing the murder of Akhtar Muhammad and attempting at the lives of Didar Muhammad effectively and Ghulam Muhammad ineffectively. The case was tried as Sessions Case No,2 of 1995. At the conclusion of the trial, the learned Sessions Judge after having found the appellant guilty of .committing the murder of Akhtar Muhammad and causing injuries to Didar Muhammad, convicted and sentenced him to life imprisonment and a fine of Rs,1,40,000 as Diyat amount vide his judgment and order dated 16-3-1995 while Saadullah Khan, Zarin and Sher Zamin were acquitted of the charges for want of proof. The appellant has challenged his conviction through the instant appeal, while no appeal or revision has been filed by the State or complainant against the acquitted accused. 2. The facts as disclosed in the F.I.R. are that Didar Muhammad complainant lodged a report in injured condition to Naib Subedar Amir Gul (P.W.8) at 0730 hours on 9-11-1993 in Civil Hospital Dargai that on the same day at 0645 hours he alongwith his deceased son Akhtar Muhammad and Ghulam Muhammad (P.W.6) while coming back to their house after irrigating their land, the aforesaid four accused had way-laid them and started indiscriminate firing at them, resulting in the murder of Akhtar Muhammad and causing injuries on his vital parts. However, Ghulam Muhammad (P.W.6) being taken shelter escaped unhurt. The motive behind the occurrence was stated, as altercation on the cutting of a 'Kikar' tree. The report was recorded in the shape of Murasila' and was sent through a levy constable for registration of the case. The injury sheet of the
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injured complainant was prepared and handed over to the medical officer for his report. 3. Naib Sabedar Amir Gul P.C. Dargai alongwith Foot Constables went to the spot where he prepared the site-plan at the instance of Ghulam Muhammad (P.W.6), blood-stained earth was allegedly recovered from two different points where the deceased was allegedly hit and died, and the place where Didar Muhammad complainant sustained the injures. However, no empties were recovered from the places attributed to the four accused. All the points showing the presence of complainant party and accused party have been shown in the vacant space of graveyard Musa Mina. The site plan also indicates the house of complainant and appellant adjacently at some distance from the spot. The Investigating Officer conducted the house search of the accused. The acquitted accused were found present in their houses and arrested. However, the appellant was found missing from his house and nothing incriminating was recovered from his house search. The appellant surrendered and arrested on 4th day of the occurrence i,e, 13-11-1993. 4. The dead-body of Akhtar Muhammad, deceased, was found lying in his house but no injury sheet or inquest report of the deceased was prepared as the relatives of the deceased present there refused to give the dead body for any medical/post mortem examination. In this regard memo. Exh.P.J. was prepared and signed by heirs of the deceased. The statements of Ghulam Muhammad and marginal witnesses of the memos. were also recorded. 5. On the arrest of the appellant the same day, he allegedly led the Investigating Officer for the recovery of a kalashnikov as weapon of offence. The investigating officer vide recovery memo. Exh.PJ/1 recovered a kalashnikov, bearing no number on the surfice from a room of the house of the appellant at his pointation. The appellant was produced before the M.I.C. Dargai on the following day i,e, 14-11-1993 where his statement Exh.P.K. was recorded under section 164/364, Cr.P.C. After completion of investigation, complete challan was submitted to the Court. 6. In order to prove guilt of the accused, the prosecution produced eight witnesses in all including the Investigating Officer. The prosecution relied upon the ocular evidence of Didar Muhammad father of deceased and an injured witness of the occurrence (P.W.5) and Ghulam Muhammad brother of the deceased (P.W.6) as eye witnesses, Dr. Wajid (P.W.1) who had examined the complainant Didar Muhammad in support of his report Exh.P.W.1/1, Salahuddin MIC (P.W.2) who has recorded the confessional statement of the appellant Exh.P.K. questionnaire Exh.P.K./1 and certificate Exh. P.K/2. Banaras (P.W.4) a marginal witness of the recovery memo. Exh. P.C. and Exh.P.C/1 whereby blood stained earth were recovered from the spot, Amir Gul Naib Subedar (P.W.8) who conducted the investigation in the case, Muhammad Karim F.C. Levy Post (P.W.7) who scribed the Murasila Exh.P.A/1, recovery memos., site plan Exh.P.B. under the instructions of P.W.8 and also marginal witness to the pointation memo. Exh.P.J/1 whereby kalashnikov was allegedly recovered from the house of the appellant and Muhammad Saleem Moharrir Levy Post Agra (P.W.3) as formal witness who incorporated the Murasila Exh.P.A/1 into F.I.R. Exh.P.A. 7. The case was put in the Court of Sessions Judge/Zilla Qazi Bathkela on 13-7-1994. Formal charge was framed on 16-8-1994 which was denied by the accused and claimed trial. The statements of P.W.1 to P.W., 6 are recorded by the Sessions Judge. Thereafter, the case was transferred to the Court of Additional Sessions Judge/Izafi Zilla Qazi Malakand at Dargai who recorded the statements of the remaining P. Ws. and passed the impugned order and judgment. 8. The learned Additional Sessions Judge, after considering the prosecution evidence and the submissions of defence counsel came to the conclusion that the involvement of the acquitted accused is improbable, unnatural, unreasonable and the result of exaggeration and consequently granted acquittal to them while the case of appellant was found distinguishable from acquitted accused and awarded him conviction in the terms noted in para. 1 above for the reasons that his house is lying adjacent to the place of occurrence, he was arrested on 13-11-1993 on the fourth day of the occurrence, on his pointation the klashinikov was recovered from his house and that he
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made a confessional statement. For the said distinguishing features, while relying on the ocular testimony of P.W.5 and P.W.6 coupled with the aforesaid circumstances, the learned trial Judge found the appellant guilty and awarded him the sentence stated above. As the evidence required for Qisas under Shariat was not available and the case of the appellant was found of mitigating circumstances, he was not awarded Qisas or major penalty of death. He was also awarded punishment for causing injuries to the complainant Didar Muhammad, four in number, (two of them were entrance and two exit as per medical report) two were found 'Jaifa' and rest of the two were found 'Mutalahima/Hashima'. He was punished for 'Jaffa' to the tune of 2/3rd of the Diyat amount calculated to be Rs,1,20,000 while for causing injures of Mutalahima and Hashima' he was held liable to pay 'Daman' amounting to Rs,10,000 for each. It was further ordered that the total 'Ursh' and 'Daman' amounting to Rs,1,40,000 be recovered from the person and property of the appellant and till then he should be kept in custody if pardon is not granted or Diyat is waived of by complainant. On the recovery of the said amount it was ordered to be paid to the complainant. However, no conviction or acquittal was accorded for the charge of attempt to commit murder of Didar Muhammad (injured P.W.) and Ghulam Muhammad (P.W.6). The appellant was served with a suo motu notice as to why his sentence should not be enhanced to death. 9. The learned counsel for the convict-appellant raised the following contentions for Court consideration:-- (i) Co-accused, three in number, (the father and brothers of the appellant) were granted acquittal and no appeal/revision has been filed either by State or complainant. No distinct role has been attributed to the appellant by prosecution and the case against the appellant is at per with acquitted accused. (ii)The evidence disbelieved vis-a-vis the acquitted accused could not be believed for awarding conviction to the appellant. (iii)Unnatural death of Akhtar Muhammad by inflicting him injuries was not proved by prosecution, as neither he was examined by medical officer either externally or internally nor any injury sheet or inquest report regarding the injuries caused to him was prepared by the Investigating Officer. Even the blood stained earth recovered from points A and B lying two paces from each were not sent for laboratory test and whether blood found on these two points were of the same persons or two different persons (deceased and complainant). Even the blood-stained garments of deceased and injured P.W. were not taken into possession. (iv)The statement of Didar Muhammad has got no corroboration on material aspect. i,e, no recovery of empties or spades carrying by P.Ws., at the time of occurrence was effected from the spot, no irrigated filed was pointed out to the Investigating Officer no cutted tree of 'Kikar' was shown to the Investigating Officer. (v) The alleged recovery of kalshnikov, a weapon of offence at the instance of appellant was not proved at the trial. The recovery of kalashnikov was immaterial in the sense that no empty was recovered during spot inspection, but even otherwise the kalashnikov allegedly recovered at the instance of the appellant was not produced at the trial. The alleged recovered klashinikov was numberless while kalashnikov produced at the trial was having a number on its body. Accused has denied the recovery of any kalashnikov at his pointation. (vi)The alleged confessional statement was retracted at the trial, even then if taken into consideration, required to be considered in toto. In the said statement, he has neither confessed the commission of the murder of deceased or causing injuries to P.W.S. (vii) Complainant has got blood-feud enmity, and the occurrence has taken place in dark hours and unknown assailants have fired at them and accused party were charged on suspicion. In support of his contentions he relied upon Tariq Khan v. The State (1997 SCMR 254), Qalb-e-Abbas v. The State (1997 SCMR 290), Shamoon v. The State (1995 SCMR 1377), Muhammad Jehangir v. The
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State (1995 SCMR 1715), Naik Muhammad v. The State (1996 SCMR 317) and Atta Muhammad v. The State (1995 SCMR 599). 10. The learned counsel for the complainant while refuting the contentions of the learned counsel for the appellant vehemently submitted that acquittal of co-accused has no bearing upon the case against the appellant. The case of appellant is distinguishable on various grounds i,e, the appellant's house is situated adjacent to the venue of occurrence, and he went in hidence immediately after the occurrence while the houses of co-accused are away from the place of occurrence and they were found present in their houses and arrested on the day of occurrence. At the instance of appellant a kalashnikov was recovered from his house as a weapon of offence. He made a confession before a competent Court wherein he has not only confessed the commission of offence but also the motive. Further contended that as a rule of administration of criminal justice grain has to be sifted from chuff. Appellant is the brother of complainant's wife and maternal uncle of the deceased, his niece is also married to Ghulam Muhammad P.W.6, so there are no reasons for false charge due to close relationship and no previous enmity. In support of his contentions he relied upon 1978 PCr.LJ 35, and PLD 1980 Peshawar 92, Further submitted that appellant has rightly been held guilty on the basis of ocular evidence including the injured P.W., corroborated by recovery of klashinikov at the instance of appellant, a clean breast confessional statement and motive for the occurrence. Absence of postmortem report or non-production of garments of the deceased does not adversely affect the prosecution case, as in that part of the country people under Rewaj of the area never allow post-mortem examination of dead bodies and always burried the dead bodies of innocent persons believing them 'Shaheed'. 11.Further contended that although the blood-stained earth recovered from two different points on the place of occurrence were not sent for laboratory test, but it has been established through evidence that blood was recovered from the places where deceased and complainant were hit and fell on the ground. The Levy Force are lacking knowledge of investigation in criminal cases. Any omission on the part of Levy Force investigating officer may not be considered for adverse effect. In the conclusion of his arguments he submitted that appellant has rightly been issued 'suo motu notice by this Court for enhancement of sentence to death penalty as there was no mitigating circumstances in the case and appellant has brutally committed the murder of his nephew and also attempted at the life of his brother-in-law (P.W.5). Appellant deserves to be awarded death penalty and also severe penalty for attempting at the lives of P.W., 5 and P.W.6. 12.The learned Assistant Advocate-General supported the impugned order and judgment of Additional Sessions Judge/Izafi Zilla Qazi and placed reliance on 1985 PCr.LJ 463, where in absence of post-mortem and inquest report conviction was maintained. 13.The prosecution case against appellant rests upon; (1) Ocular testimony of P.W.5 and P.W.6. (2)Recovery of kalashnikov at the appellant's pointation. (3)confessional statement of appellant, and (4)Motive behind the occurrence. 14.The trial Court has applied the principle to sift the grain from the chaff." The ocular evidence of P.W.5 and P.W.6 was not believed in toto, but only these parts of their statements were believed which has got independent corroboration from circumstantial evidence. The presence of P.W.5 was held established due to the stamps of injury on his person. A portion of confessional statement of appellant was also considered corroboration of the fact that appellant has fired at the complainant party. Altercation over cutting of "Kikar" tree, the alleged motive behind the occurrence was also corroborated through confessional statement of accused. The trial Court has disbelieved the eye-version account of P.W.5 and P.W.6 regarding their way-laid by accused party. This part of the statement was termed as exaggeration in order to implicate the
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whole family of appellant, which was found unnatural. The statements regarding involvement of acquitted accused, were disbelieved. It was found unnatural that a maternal grand-father and 3 maternal uncles should launch an attack to commit the murder of their son-in-law, brother-in-law and nephew. 14-A. As already said in the ocular account of the two P.Ws. no distinction has been drawn between the acquitted accused and the appellant. The moot question for determination in the instant appeal is that whether the prosecution has successfully brought home guilt to the appellant. Since three of the co-accused were awarded acquittal and no appeal or revision has been filed against their acquittal, their case cannot be reopened which has attained finality but only the case against appellant is to be considered in light of available record. 15. The complainant party and appellant are closely related to each other. On the one hand, it can be argued that due to close relationship the evidence of P.W.5 and P.W.6 can safely be relief upon in absence of any circumstance for false implication. But the unchallenged finding of the trial Court that they have exaggerated the occurrence by implicating acquitted accused make them not truthful witnesses. It has been held in Ata Muhammad v. State (1995 SCMR 599) that ocular evidence could be classified in three categories; (i) reliable (ii) unreliable (iii) partly reliable and partly unreliable. In the first category conviction may safely be recorded on the oral testimony without any corroboration. In the cases falling under second category no conviction could be recorded even if strong corroboration is available. For cases of third category, conviction can only be recorded if the testimony is corroborated through oral or circumstantial evidence coming from distinct source. In the instant case the appellant has been charged for the murder of his nephew and causing injuries to his brother-in-law without any previous motive. The testimony of P.W.5 having a stamp of injury on his person are such circumstances which cannot be ignored. On the other hand the charge against three acquitted accused were found false and exaggerated, by the trial Court and finality is attached to that finding. In the circumstances of the instant case, it falls under third category and the testimony of P.W.5 and P.W.6 eye-witnesses require corroboration of oral and circumstantial evidence from a distinct and independent source. The charge against acquitted accused was lacking such corroboration, therefore, rightly acquitted by the trial Court. The contention of the learned counsel for the appellant that by discarding the evidence of P.W.5 and P.W.6 vis-a-vis acquitted accused cannot be formed basis for conviction of appellant, cannot be accepted for the single reason that in present day society the witnesses rarely tell the whole truth. This tendency prevailing in the Society has placed more burden on Courts of law and the old maxim" falses in uno falses in omnibus" has lost its effect and by now the Courts follow the principle of sifting the grain from the chaff. People now-a-days usually involve the entire family of opposite party or at least involve the head of family or an influential member of the family with malicious intent. The Courts are trying to pick the actual culprit among the lot of accused and grant punishment on the collection of evidence placed before the Court vis-a-vis the actual culprit. The Courts must try to dig out the actual culprit so that a guilty persons should not escape from the punishment for the wrong done by him. The learned counsel for the appellant has misread the evidence by stating that no distinction can be brought in the case of appellant and acquitted accused. As against acquitted accused there was bare statement of P.W.5 and P.W.6 without any corroboration but in case of appellant the oral testimony of P.W.5 and P.W.6 have got a corroboration of material points. The confessional statement though retracted during trial but prosecution has successfully proved the same as voluntary and without coercion or pressure. The evidence of P.W.5 and P.W.6 can be disbelieved for want of corroboration and the trial Court has rightly disbelieved the same vis-a-vis acquitted accused but the same can rightly be relied upon against the appellant in view of sufficient corroboration. 16. This is also wrong to say that there is no distinction in the case of acquitted accused and
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appellant. The confessional statement of appellant has itself provided the said distinction. There are no reason to disbelieve those aspects of the confessional statement which are in consonance with the prosecution case. It is a fact that acquitted accused were arrested from their houses on the very day of occurrence. Their houses are situated at a distance of two kilometres from the spot. They could conveniently conceal themselves had they been guilty, but they preferred to surrender themselves being innocent. The appellant fled away knowingly that he was guilty. The appellant surrendered under the pressure of his conscience as his aged father and two of his innocent brothers were arrested for his wrong. The appellant not only surrendered himself but also led the Investigating Officer for recovery of klashinikov as weapon of offence. This is also unfortunate that investigation in that part of the country is being conducted by Levy Force having no proper training of investigation and little knowledge of Criminal Procedure and Qanoon-e-Shahadat. The kalashnikov recovered at the pointation of accused was not thoroughly checked and on cursory examination it was noted in the memo. to be numberless. The said kalashnikov when produced in Court was found that there was a number on it but under the shield/cover. There was no need of sending the kalashnikov for laboratory test as no empty was recovered on the spot. However, the appellant himself led the Investigating Officer for the recovery of kalashnikov as weapon of offence. The memo. in that respect was proved at the trial and appellant failed to discard the recovery except the aforesaid omission on part of the Investigating Officer. 17. The Investigating Officer has not only shown carelessness in the proper scrutiny of kalashnikov at the time of recovery, but has also shown his weak knowledge of investigation in criminal cases by not preparing the injury sheet/inquest report of the deceased, or taking in possession the blood-stained garments of the deceased and injured P.W., or sending the blood-stained earth for serological test. It was thoroughly discussed in Rahimullah v. The State (NLR 1985 Criminal 41) a case of Provincially Administered Tribal Area in the following words:-- "The absence of post-mortem examination and inquest report regarding the injuries sustained by the deceased would not be fatal to the prosecution case. Reference can be made to the provision of section 174(3), Cr.P.C. which is in the following terms:-- "174(3). When there is any doubt regarding the cause of death, or when for any other reason the police-officer considers it expedient so to do, he shall, subject to such rules as the (Provincial Government) may prescribe in this behalf, forward the body with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the (Provincial Government), if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless." Under rule 25.35 of the Police Rules, 1934, an Investigating Officer is required to draw a report stating the apparent cause of death and to give a description of any mark or marks of violence which may be found on the body and describe the manner in which and the weapon or instrument with which such marks appear to have been inflicted. No doubt the Investigating Officer has not complied with the obligatory provisions of Police rule 25.35 read with section 174, Cr.P.C. in failing to prepare the inquest report but in our view, the absence of the inquest report or for that matter the absence of post-mortem examination, in the circumstances of the case, would not be fatal to the prosecution. There is sufficient evidence on the file to establish that Fazle Qadir (deceased) was done to death by the appellant by firing at him." 18.The contention of learned counsel for the appellant that prosecution has failed to prove the unnatural death of deceased Akhtar Muhammad by receiving fire arm injuries, is based on missing of post mortem report or non-production of blood stained garments of deceased, is without substance. A guilty person cannot escape from conviction merely for absence of post-mortem report which always form a corroborative piece of evidence of the ocular testimony. But in absence of post-mortem report the testimony can be corroborated by other independent evidence either
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oral or circumstantial. In the instant case, the appellant in his own confessional statement affirmed the death of deceased as a result of fire-arm injury. The recovery of blood-stained earth by Investigating Officer from the place where deceased was fallen on the ground after receiving injury was proved unrebutted by the prosecution. 19.As already observed the injured complainant and his son (P.W.6) has thrown the net very wide and the father and two brothers of appellant were exaggeratedly roped in the commission of offence. But the charge against the appellant cannot be brushed aside for the available material on file. It is an established fact of the case that altercation over cutting of a "Kikar" tree in the graveyard is the only motive behind the occurrence. Otherwise, the appellant and deceased party are closely related to each other. There is nothing on the file suggesting any previous enmity, or dispute between the parties. The wife of Didar Muhammad complainant and the mother of Ghulam Muhammad is…
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