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Petitioner: Fateh Khan and others VS Respondent: The State and others
Court Name: Balochistan High Court Judge(s): Muhammad Kamran Khan Mulakhail, Abdul Hameed Baloch Title: Fateh Khan and others vs The State and others Case No.:Criminal Appeals Nos.18 of 2018, 35 of 2020, Criminal Revision Petitions Nos.
JUDGMENT
Reported As: 2021 P Cr. L J 969 Result: Appeals dismissed Judgment JUDGMENT ABDUL HAMEED BALOCH, J.---Through this judgment we intend to dispose of Criminal Appeal No. 18 of 2018, Criminal Revision Petition No. 02 of 2018, Criminal Appeal No. 35 of 2020 and Criminal Revision Petition No. 02 of 2020, as the same are outcome of one and same incident and same have been directed against the judgments, dated 30th December , 2017 and 7th January , 2020, (impugned judgments), passed by learned Sessions Judge/MCTC, Zhob (trial court). 2. The prosecution case as gleaned from the Fard-e-Biyan dated 30th January , 2015 (Ex.P/1-A) submitted by PW-1 Naimat Khan son of Azad Khan, resident of Killi Shahabzai. Zhob that on fateful date he was present at his home. At about 5:45 p.m. on hearing firing he came out of the house and saw that firing was continued at Nadi cross, on which he rushed there and saw accused Ajab Khan, Amir Badshah, Sikandar Mirza, Fateh Khan, Tahir Khan, Jalat Khan duly armed with Kalashnikovs were making indiscriminate firing on his sons Sultan Shah, Ghulam Shah and grandson Behadur Shah. It was further alleged that while making firing the accused Ajab Khan shouted that they will lot let them alive. Sultan Shah, Ghula m Shah and Behadur Shah were seriously injuries who were brought to Civil Hospital and thereafter they were taken to CMH Zhob, where Sultan Shah succumbed to his injuries. The motive was alleged that accused Ajab Khan used to restrain them from passing main carpeted road of the Killi. The occurrence was witnessed by Haji Bagul and Akbar Khan. On this report FIR No. 14 of 2015, under sections 302, 324, 337-ADF , 147, 149, P .P.C. was registered against the accused persons with Police Station Zhob. 3. After registration of FIR, the investigation was entrusted to Javed Iqbal SI (PW-14), who proceeded to Civil Hospital Zhob where ocular witnesses Muhammad Ibrahim and Akbar Khan were present. Thereafter , he proceeded to the place of occurrence, prepared site plan of the crime scene, secured ten empties. On 1st February , 2015 recorded statements of injured witnesses, obtained inquest report, medical certificates of deceased
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and injured and on receiving FSL Report submitted incomplete challan. The appellant Fateh Khan was arrested on 18th August, 2015. Whereafter , the investigation was transferred to Crimes Branch Quetta. It is to be noted that prior to arrest of appellant Fateh Khan the learned Judicial Magistrate Zhob recorded statements of witnesses under section 512, Cr.P.C. After arrest of appellant Fateh Khan incomplete challan was submitted before the trial court, where charge was framed to which the appellant Fateh Khan denied. Thereafter , the prosecution produced PW-1 Naimat Khan (complainant), PW-2 Ghulam Shah, PW-3 Behadur Shah and PW-4 Akbar Khan. Meanwhile on 31st December , 2015 the Investigating Officer PW-15 Abdul Qayum SI Crimes Branch arrested appellant Ajab Khan, recovered Kalashnikov and secured FSL Report of weapon and thereafte r, submitted incomplete challan before the trial court. The trial court framed charge to which the appellant Ajab Khan denied. Whereafter the trial court recorded de novo statements of prosecution witnesses earlier recorded. The complainant Naimat Khan appeared and reiterated the contents of his statement as already narrated in his Fard-e-Biyan Ex: P/1-A. The statement of injured witness Ghulam Shah was recorded' on 8th December , 2016 as PW-6, while the statement of other injured Witness was recorded on 14th February , 2017 as PW-8. The statement of ocular witness Akbar Shah was recorded on 8th December , 2016 as PW-7. Dr. Shahbaz Khan Medical Officer DHQ Zhob produced Medical Certificate of deceased Sultan Shah as Ex: P/9-A, MLC of injured Behadur Shah as Ex: P/9-B and MLC of injured Ghulam Shah as Ex: P/9-C. The statement of PW-10 Muhammad Munir SI Crimes Branch was recorded on 28th February , 2017. He produced seizure memo of Kalashnikov as Ex: P/10-A, Kalashnikov as Art: P/1, ten live cartridges Art: P/2 to Art:P/14. On 25th March, 2017 the statement of Wazir Khan ASI Crimes Branch was recorded as PW-11. He produced disclosure memo of Ajab Khan as Ex: P/11-A. Muhammad Ramzan ASI appeared before the trial court and recorded his statement as PW-12. He produced the recovery memo of blood stained clothes of deceased and injured as Ex: P/12-A, recovery' of blood stained earth Ex: P/12-B, and 38 empties, six live cartridges of SMG as Art: 13/15 to Art: P/65. Muhammad Munir SI Crimes Branch appeared before the trial court and recorded his statement as PW-13. He produced recovery memo of criminal record of appellant Fateh Khan as Ex: P/13-A and ten photocopies of FIRs as Art: P/67 to Art: P/76. The statement of PW-14 Javed Iqbal SI Police Station Zhob, the first Investigating Officer was recorded, who produced FIR Ex: P/14-A, site plan Ex: P/14-B to Ex: P/14-C, FSL Report Ex: P/14-D, incomple te challan No. 16/2015 as Ex: P/14-E, FSL Report Ex: P/14-F and challan No. 16-A/2015 as Ex: P/14-G. Abdul Qayum SI Crimes Branch appeared as PW-15 (Investigating Officer), who produced challan No. 16-B/2015 as Ex: P/15-A and Ex: P/15-B, FSL Report Ex: P/15-C, incomplete challan No. 16- D/2015 as Ex: P/15-D. Abdul Qayum SI (Investigating Officer) again appeared on 10th August 2017, recorded his statement and produced photocopy of Punjab Forensic Science Agency Report as Ex: P/16-A. 4. On completion of prosecution evidence the appellants were examined under section 342, Cr.P.C., in which they denied the allegation of committing murder of the deceased Sultan Shah and injuring Ghulam Shah and Behadur Shah. They did not opt to record their statements on oath as envisaged under section 340(2), Cr.P.C., however produced Abdul Wali as DW-1, who produced unregistered Iqrar Nama in regard of sale purchase of vehicle as Ex: D/1-A and Mian Khan as DW-3. On conclusion the trial court convicted the appellants Fateh Khan and Ajab Khan under section 302(b) read with section 149, P.P.C. and sentenced to suffer life imprisonment for committing death of deceased Sultan Shah as Tazir and to pay compensation of Rs. 200,000/- each to the legal heirs of deceased under section 544-A, Cr.P.C. and in default to further' undergo six months simple imprisonment. The appellants Fateh Khan and Ajab Khan were also convicted under section 324, P.P.C. read with section 149, P.P.C. and sentenced to suffer seven years' rigorous imprisonment with fine of Rs. 5000/- each and in default to further undergo one month simple imprisonment. Further , the appellants Fateh Khan and Ajab Khan were convicted under section 337-F(i) read with section 149, P.P.C. and sentenced to suffer one year rigorous imprisonment for causing injuries to Ghulam Shah and Behadur Shah and to pay Rs. 15000/- each as Daman to both the above named injured and in default to further undergo fifteen days simple imprisonment. The appellants Fateh Khan and Ajab Khan were also convicted under sections 148 and 149, P.P.C. and sentenced to suffer two years rigorous imprisonment and fine of Rs. 5000/- each and in default to further undergo fifteen days 'simple imprisonment. Being aggrieved of the same the appellants Fateh Khan and Ajab Khan preferred Criminal Appeal No. 18 of 2018, whereas the injured Ghulam Shah preferred Criminal Petition No. 2 of 2018 for enhancement of the sentence.
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5. The appellant Jalat Khan was arrested on 10th April, 2018 and challan was submitted by the Investigating Officer on 5th July, 2018. Charge was framed to which the appellant Jalat Khan did not profess his guilt and claimed trial. The prosecution produced following witnesses: PW-1 Behadur Shah, PW-2 Akbar Shah, PW-3 Dr . Shahbaz Khan produced MLC of deceased and injured as Ex: P/3-A and Ex: P/3-C. PW-4 Ghulam Shah, PW-5 Naimatullah (complainant) produced Fard-e-Biyan Ex; P/5-A PW-6 Wazir Muhammad ASI produced disclosure memo of convict Ajab Khan as Ex: P/6-A. PW-7 Javed Iqbal (First Investigating Officer), produced FIR Ex; P/7-A, site plan Ex; P/7-B to Ex: P/7-C, FSL, Report of blood stained shirt, trouser (Shalwar), blood stained earth Ex: P/7-D to Ex: P/7-E. PW-8 Muhammad Ramzan ASI produced memo of blood stained clothes of deceased and injured Ex: P/8-A and blood stained earth Ex: P/8-B. PW-9 Muhammad Munir SI Crimes Branch produced memo of Kalashnikov Ex: P/9-A, Kalashnikovs and cartridges Art: P/60 to Art: P/73, memo of criminal record Ex: P/9-B. PW-10 Abdul Qayum SI Crimes Branch (Investigating Officer) produced FSL report Ex: P/10-C, photocopy of report of Kalashnikov from Punjab Forensic Science Ex: P/10-E. 6. On completion of prosecution evidence the appellant was examined under section 342, Cr.P.C. in which he denied the allegation. He did not opt to record his statement on oath as envisaged under section 340(2), Cr.P.C. However produced one Abdullah as DW -1 in his defence. 7. On conclusion of the trial the. trial court convicted the appellant Jalat Khan in the manners as awarded to the appellants Fateh Khan and Ajab Khan, mentioned in para-4, as such the appellant being aggrieved of his conviction preferred Criminal Appeal No. 35 of 2020, whereas the injured Ghulam Shah preferred Criminal Revision Petition No, 02 of 2020 for enhancement of the sentence. 8. The learned counsel for the appellants contended that the FIR was lodged with the delay of one hour and forty five minutes without plausible explanation. The complainant is not ocular witness. The witnesses are close relatives and inimical towards the appellant due to previous enmity . The prosecution failed to produce any independent witness. There appear contradictions in the statements of prosecution witnesses. Though independent witnesses were present, but their statements were not recorded. Even the defence filed an application for production of ocular witness Ibrahim as Court witness, but the trial court did not take coercive measures for production of the above witness despite directions of this court, as such under illustration (g) of Article 129 of Qanun-e-Shahadat Order , 1984 the same goes against the prosecution. The vehicle was not taken into possession. The statement of injured witnesses'recorded with delay of two days without plausible explanation. The alleged Kalashnikov and empties were sent with delay to FSL which lost its evidentiary value. The site plan is not in line with the ocular account. Reliance is placed on Jalat Khan alias Jalo v. The State 2020 PCr.LJ 503, Muhammad Zaman v. Muhammad Afzal 2005 SCMR 1679 , Faryad Ali v. The State 2008 SCMR 1086 , Nasrullah alias Nasro v. The State 201 7 SCMR 724, Saleh Muhammad v . The State 201 7 PCr .LJ 1391 and G. M. Niaz v . The State 2018 SCMR 506 . 9. The counsel for the complainant stated that the FIR was lodged without delay . The appellants and complainant party already known to each other . The witnesses have narrated each and every fact in detail. In murder case minor discrepancies have no ground for acquittal. The presence of witnesses was not denied by the appellants. The appellants have changed their defence plea during trial. The defence plea of the appellants was inconsistent and afterthought. The appellants have not denied the occurrence and venue of occurrence. The prosecution has proved its case beyond reasonable doubt. 10. The learned Additional Prosecutor General has strongly supported the conte ntion of learned counsel for the complainant. 11. The prosecution case rests on ocular account including statements of injured witnesses, medical evidence, recovery of casing, alleged crime weapon, positive report of FSL. The appellants contended that the FIR was lodged with delay of one hour and forty five minutes with consultation and premeditation. The contention has no
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force. It appears from the FIR No. 14 of 2015 (Ex: P/14) that distance of place of occurrence from police station Zhob is eight (08) kilometer . Through the complainant is not an ocular witness, however he reached at the venue of occurrence immediately and then submitted Fard-e-Biyan Ex: P/1-A. It is not necessary that each and every detail should be mentioned in the FIR. The concept of FIR is to set the prosecution in motion. It is settled law that in criminal cases delay by itself in registering FIR is immaterial. Delay in registration of FIR is only material when there is doubt regarding identity . In this regard reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 , wherein it was held: "6. So far as the FIR is concerned, it was, no doubt, delayed by 17 hours, yet seen in the light of the attending circumstances of the case, the delay stands explained. It is an established principle of law anal practice that in criminal cases the delay , by itself in lodgin g the FIR is not material. The factors to be considered by the Courts are firstly , that such delay stands reasonably explained and secondly , that the prosecution has not derived any undue advantage through the delay involved. The delay is explained in the FIR itself to the effect that everyone was busy at the hospital, struggling for the life of the victim. The possibility of the complain ant party arranging for the eye- witnesses is altogether ruled out because even if so, the occurrence having taken place in the cricket ground of the city, everything could have been arranged within minutes. It is proved through the version of the eye-witnesses that occurrence had taken place in the cricket ground duly supported by recovery memo (Exh. PD), indicating the recovery of blood from the spot. We believe while concurring with the two Courts that the prosecution has explained the delay in question." 12. The record transpires that the complainant (PW-1) reported the matter to police and FIR Ex: P/14-A was registered wherein the complainant mentioned the name of ocular witnesses. The eye-witness Akbar (PW-4) appeared before the court and recorded his statement. Despite lengthy cross-ex amination the defence failed to extract any point in their favour . Even if the eye-witness was not named in the FIR his statement cannot be discarded on this score alone. It was held by Honorable Supreme Court in case of Muhammad Mushtaq v. The State PLD 2001 SC 107 : "11. Learned counsel for appellant objected on the delay of sending the incriminating article's i.e. empty and shotgun for expert opinion without offering plausible explanation. A perusal of record revealed that no such objection was raised either before trial Court or the learned Appellate Court. As per settled law the delay in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in absence of objection of tampering or manipulating the articles as held in the case of Muhammad lqbal v. Muhammad Tahir and others (PLD 1985 SC 361 )." 13. The prosecution has not disputed the presence of ocular witnesses at the scene of occurrence. Due to heavy indiscriminate firing three persons sustained injuries. Among them Sultan Shah succumbed t the injuries. The prosecution has recorded statement of two injured witnesses namely Ghulam Shah (PW-2) and Behadur Shah (PW-3). The presence of witnesses was not disputed. It could not be believable that the injured let the real culprits and implicate the appellants. The eye-w itnesses were natural witnesses of the occurrence and their testimony inspires confidence. Reliance is placed on the case of Muhammad Waris v. The State 2008 SCMR 784, wherein it was held that the eye-witnesses tresses had explained their presence at the place of occurrence at the relevant time, thus they were natural and independent witnesses of the incident. 14. The record depicts that the occurrence had taken place at 5:45 p.m. in broad day light. The parties were well conversant to each other . There was no chance of mistaken identity . The complainant and ocular witnesses alleged that the appellants along with absconding accused came at the scene of occurrence from different side and started indiscriminate firing. The eye-witnesses Akbar Khan (PW-4), injured witnesses Ghulam Shah (PW-2) and Behadur Shah (PW-3) in unison stated that the appellants along with absconding accused had made firing upon them due to which Sultan Shah succumbed to the injuries, while they (witnesses) sustained injuries. The defence has not denied the occurrence rather admitted the occurrence during cross-examination of witnesses. All the said eye- witnesses had made consistent statement before the trial court. The statement of ocular account had received support from medical evidence. The medi cal evidence furnished by Dr. Shahba Khan (PW-9) is also in line with the statements of witnesses. The MLCs of the deceased and injured stated as under:
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"Deceased Sultan Shah : On external examination, we observed the following injuries: 1. Entrance of wound on right buttock. 2. Exit of wound on left iliac fossa The duration of wound was fresh and object used was gunshot. Cause of death : Due to massive bleeding, injury to vital organ." Behadur Shah : On external examination we observed the following wounds: 1. Entrance of wound on right distal part of femur . 2. Exit wound on right lateral surface of femur . After first aid therapy he is discharged on the request of his relatives. Duration of wound was fresh and objected used was gunshot. Ghulam Shah : On external examination we observed the fallowing wound: 1. Entrance of wound on right iliac fossa. 2. Exit of wound on right buttock After first aid therapy he is discharged on request of his relatives. Duration of wound was fresh and object used was gunshot." 15. Muhammad Munir (PW-13) produced criminal record of appellant Fateh Khan i.e. FIRs through memo Ex: P/13-A; got registered by the complainan t party , meaning thereby that the motive set up by the prosecution had duly been proved. The defence has not denied motive rather it was admitted that previous several FIRs were registered against each other . Reliance is placed on unreported judgment of this Court passed in Criminal Appeal No. 433 of 2019 , titled Laiq Shah v . The State , wherein it was held: "7. The incident in the present case took place on. Adalat Road, near Taxi Stand at about 03:00 p.m., when allegedly the appellant along with co-accused persons equipped with pistols, riding on motorcytle came, and, appellant and co-accused Ibrahim Shah and Shehzad made firing upon the complainant party , due to which Haji Luqman died at the spot, while Hamayun and Babarzai, sustained firearm injuries. In support of their case, the prosecution relied upon the statement of eye witness PW-1, PW-2 (injured), PW-3 (injured) and PW-6. All the eye- witnesses claimed to have witnessed the incident and identified the accused along with co-accused persons with specific role of firing. The defence has not denied the occurrence, nor denied the presence of the appellant at the place of occurrence. We have found that the prosecution has been able to produce sufficient evidence to connect the appellant Laiq towards the commission of the offence and FIR was promptly recorded, nominating the appellant with specific role in commission of the offence. All the said eye-witnesses had made consistent statements before the trial court and the ocular account furnished by them had received sufficient support from the medical evidence. The motive set up by the prosecution had duly been proved, as to the said extent there was no denial on part of the defence, rather it was admitted that previously several FIRs were lodged between the parties. The Court below has undertaken an exhaustive analysis of the evidence available on the record and had then drawn conclusion regarding guilt of the appellant having been proved to the hilt and upon our own independent evaluation of the evidence we have not been able to take a view of the matter different from that of taken by the court below ." 16. So far as vicarious liability is concern ed. the trial court framed charge under sections 302, 324, 147, 148, 149, P.P.C., section 149, P .P.C. is reproduced as under: "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. --If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly , or such as the members of that assembly knew to be likely to be committed in prosecuion of that object, every person who, at the time of the committing of that offence, is a member of the same assembly , is guilty of that offence." 17. The doctrine of vicarious liability as mentioned in section 149, P.P.C. requires co-existence of following ingredients: i. That one should be member of unlawful assembly: ii. That in prosecution of the common object of that assembly the offence should have been committed by a member of unlawful assembly .
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iii. That the offence should be such a nature that the member of that assembly knew that the offence to be likely committed in prosecution of that common object. 18. The appellants along with absconding accused appeared simultaneously from different sides, made indiscriminate firing upon the deceased and injured. It is to be noted that proof of specific overt act is not necessary while determining the guilt of accused being member of unlawful assembly , It would be sufficient if the prosecution is able to establish that the accused being member of unlawful assembly shared with common object of assembly . Reliance is placed on the case of Division Bench of Lahore High Court titled as Ashfaq Asghar v. Hafeez 2013 YLR 2620 , The fire arm injuries to deceased and injured PWs are in matter of record, therefore, sharing a common object being a member of unlawful assembly does exist as the appellants cannot be believed to be unaware of the consequences of their firing at PW1 and deceased. The record reflects that the convicts/appellants fired simultaneously . It would be judged that they had common intention, Each mem ber of unlawful assembly was responsible of the act of every member . Learned counsel for the defence contended that the nature of allegation is general. No specific role attributed to each individual, It was not possible for the witnesses to attribute each person's role individually during indiscriminate firing by so many persons. It was held by Honourable Supreme Court in the case of Muhammad Khan v . The State PLD 1977 SC 446: "If I may say so with respect, the unfortunate aspect of the matter is that while on the one hand the trial Court as well as the High Court believed the presence of the eye-witnesses as also the account, furnished by them, they erred in ignoring the invocation of section 34, P.P.C, which was fully attracted to the facts and circumstances of the case, Surely , it was a case of day light occurrence, Both the brothers equally shared the strong motive of wreaking vengeance of the insult and beating of their father as well as of the appellant himself. The occurrence took place at peshivela and the report was lodged with the utmost promptitude at the police station five miles away from the scene of the crime, Two different types of weapons were attributed to the two assailants, In these circumstances there could be neither any question of mistaken identity nor of inherent improbability as regards the number of assailants. In a situation like this, If two assailants lying in ambush having suddenly surprised the complainant party had fir in quick succession almost simultaneously the possibility of bona fide error of perception as to whose shot hit and whose missed could not be completely excluded from consideration and once the witnesses were believed, both the assailants should have been convicted without anyone of them being found entitled to benefit of doubt. Without proper appreciation of this impor tant aspect of the matter , both the Courts below proceeded to act on the presumptive tendency of the complainants to exaggerate the facts and rope in innocent person and thus erred in applying the correct principle on ground of abundant caution. The legal position in this regard made well settled by a chain of authorities such as .Mehbub Khan v. the King Emperor (72 I A 148), Mamand v, The King-Emperor (AIR 1946 PC 45) Sardar All v, The Crown (PLO 1956 FC 425) and Mst. Hamida Bano v. Ashiq Hussain (PLO 1963 SC 109). In the first mentioned case it was held by their Lordships that common intention implied a pre-arranged plan and to apply section 34, P. P. C. a very reasonable and natural inference that the act was done in concert, pursuant to a pre-arranged plan should be…
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