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Petitioner: MEHBOOB KHAN VS Respondent: MUHAMMAD AJAIB and others
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Iftikhar Hussain Butt Title: MEHBOOB KHAN vs MUHAMMAD AJAIB and others Case No.: Criminal Appeal No,21 of 1997 Date of Judgment:1999-07-26 Reported As: 2000 YLR 302 Result: Order accordingly
Judgment ORDER ' The appeal has arisen out of the order of acquittal passed by District Criminal Court, Kotli, on 13-6- 1997, whereby the respondents were acquitted of the offences allegedly committed by them under sections 5, I.P.L. And 15 read with sections 341/147, 148 and 149, A.P.C. 2. The brief facts of the prosecution case are that Mehboob Khan alias Maroof, complainant (P.W.1) made a written report to the Officer Incharge Police Post Nar, on 8th March, 1992 at 1-30 p.m., wherein it was alleged that on day of the incident, the complainant accompanied by Muhammad Yousuf, Zahid Hussain deceased, Kabir, Najeeb, Muhammad Yasin and Muhammad Yunus, were busy in road construction. k tractor used by the complainant party struck against the 'Phalahi' tree belonging to Fazal Ellahi, accused. Mst. Khalida, daughter Fazal Ellahi, protested against the damage caused to the tree and alleged that the accused deliberately struck their tractor against the tree, in order to widen the road under construction. She left for the home to inform her father and brothers. At 11-00 a.m. When the complainant and his associates were on their way after finishing the work, to Jarahi Bazar, they came across the accused near the house of Muhammad Yusuf. Muhammad Ajaib accused was armed with .12 bore gun. Muhammad Akram and Muhammad Naib, carried sticks, whereas Tasib and Fazal Ellahi carried their hatchets. They obstructed the complainant party and assaulted upon them. Zahid Hussain asked the accused to refrain from abusing them, on which Muhammad Ajaib aimed at him and fired with his .12 bore gun, which resulted in the death of Zahid Hussain. The complainant also received injury at the hand of the accused. 3. The motive of the occurrence isstated to be that the accused presumed that the complainant party while constructing the road wanted to remove 'Phalahi' tree belonging to Fazal Ellahi
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accused, in order to widen the road and for the reason they have committed the occurrence. 4. Mehboob Khan (P.W.1) carried the dead body of Zahid Hussain, deceased, with him and went to Chowki Police Nar and lodged a report at 11-00 a.m. Which was recorded by Muhammad Musa Khan S.-I. Police (P.W.22) who despatched the report at Police Station Kotli for registration of the case which was later on registered by Chaudhry Azhar Akhtar, Inspector Police (P.W.23) through report Exh.P.R. Muhammad Musa Khan, S.-I. (P.W.22) examined the dead body, prepared the inquest report Exh.P.Z. And sent the dead body for post-mortem examination. He also prepared the injury form of the deceased Exh.P.K./1 and took into possession the blood-stained clay vide memo. Exh.P.G. In presence of Haji Deewan Ali (P.W.8) and Muhammad Arif (P.W.9). He also picked up an empty from the scene of occurrence vide recovery memo. Exh.P.D. In presence of abovementioned witnesses. On 8-3-1992 the statements of the eye- witnesses Mehboob Khan (P.W.1), Muhammad Kabir (P.W.2), Muhammad Hussain (P.W.3), Muhammad Yousuf (P.W.4) were recorded and on 9-31992 the statements of eye-witnesses Muhammad Yunus (P.W.5), Muhammad Yasin (P.W.6) and Najeeb Khan (P.W.7) were recorded. Meanwhile Muhammad Akram, Naib Khan and Fazal Ellahi, accused also moved an application against the complainant who were referred to D.H.Q. Hospital, Kotli for treatment. Dr. Muhammad Iqbal Chaudhry (P.W.14) handed over the clothing of the deceased to the police which were taken into possession vide recovery memo. Exh.P.B. In presence of Mehboob Khan (P.W.1) and Muhammad Yunus (P.W.5). Mehboob Khan, complainant handed over a hatchet and two sticks to the police which were allegedly snatched by the accused Fazal Ellahi, "'Muhammad Akram and Muhammad Naib during the occurrence which were taken into possession vide recovery memo. Exh.P.D./3 in presence of Muhammad Yasin (P.W.6) and Najeeb Khan (P.W.7). On 11-3-1992 a .12 bore gun was recovered from Ajaib accused vide recovery memo. Exh.P.H. In presence of Muhammad Arif (P.W.9) and Muhammad Latif (P . W . 10) . Site-plan Exh . P . M . Was got prepared by Muhammad Fayaz Patwari (P.W.13). On 16-3-1992 a hatchet was recovered from Tasib, accused vide recovery memo. Exh.P.E. In presence of Muhammad Yousuf (P.W.4) and Muhammad Yasin (P.W.6). A licence No,5649 of .12 bore gun, produced by Muhammad Afsar was taken into possession vide recovery memo. Exh.P.F. In presence of Deewan Ali (P.W.8) and Ch. Qurban Hussain (P.W.12). Dr. Muhammad Iqbal Chaudhry (P.W.19) handed over a parcel of pellets, which were recovered during post-mortem, vide recovery memo Exh.P.L. In presence of Musharaf Hussain Shah, Head Constable Police No,2586 (P.W.16). He also obtained the injury form of Mehboob Khan (P.W.1) Exh.P.K., injury form of Tasib, accused Exh.D.Z/2, injury form of Fazal Ellahi accused Exh.D.X., injury form of Muhammad Akram accused Exh.D.Y., injury form of Muhammad Naib accused Exh.D.Z., report of the Chemical Examiner Exh.P.Z./1, report of Serologist Exh.P.Z/2 and report of the Forensic Sciences Laboratory Exh.P.Z./3. 5. The post-mortem report Exh.P.J. Revealed that the deceased died due to direct fire-arm injury of heart and lungs. 6. The accused persons were apprehended during the investigation and after completion of the investigation they were forwarded to District Court of Criminal Jurisdiction, Kotli for facing their trial. The accused-respondents in their statements under section 242, Cr.P.C., denied the allegations levelled against them. In order to prove its case against the respondents the prosecution examined Mehboob Khan alias Maroof (P.W.1), Muhammad Kabir (P.W.2), Muhammad Hussain (P.W.3), Muhammad Yc Yousaf (P .W .4), Muhammad Yasin (P .W . 6), Deewan Ali (P.W.8), Muhammad Arif (P.W.9), Muhammad Latif (P.W.10), Fayaz Patwari (P.W.13), Dr. Muhammad Iqbal Chaudhry (P.W.14), Muhammad Hanif, Constable (P.W.16), Musharaf Hussain Shah, Head Constable Police (P.W.19), Muhammad Bashir, Constable Police (P.W.20), Muhammad Ajaib, Selection Grade Constable police (P.W.2), Muhammad Musa Khan, Sub-Inspector Police (P.W.22), Chaudhry Akhtar, Inspector Police (P.W.23) and -Raja Abdur-Razzaq, Inspector Police (P.W.24). The respondents-accused in their
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statements under section 342, Cr.P.C.,denied the allegations and desired to produce the defence evidence. In their defence the respondents examined Muhammad Suleman (D.W.1), Muhammad Yasin (D.W.2) and Dr. Tasleem Ahmed (D.W.3) as their witnesses. 7. The, trial Court after the conclusion of trial having found the respondents-accused not guilty by giving them benefit of doubt vide its judgment, dated 13-6-1997, however, Muhammad Akram accused absconded after conclusion of trial from the trial Court before hearing arguments and pronouncing the judgment. He was, therefore, proceeded under section 512, Cr.P.C., on 21-5-1996. Hence this appeal for conviction of respondents-accused by the complainant. 8. Mr. Abdul Majeed Mallick, the learned counsel for the appellant, vigorously contended that the District Criminal Court, Mirpur fell in error by acquitting the respondents-accused. According to him, the prosecution case stood proved beyond any reasonable shadow of doubt. The learned counsel argued that the trial Court in the operative part of its order accepted that allegation of wilful murder of the deceased ascribed to Muhammad Ajaib respondent was corroborated by the testimony of the eyewitnesses but illegally acquitted him by stretching the rule of "benefit of doubt". He submitted that the finding of the trial Court was inconsistent and self-contradictory. He maintained that the trial Court fell in error in holding that the incident took place when the complainant party was widening the link road in the land of the respondents. In fact the link road was already complete and on the day of occurrence the complainant party made some repairs in the road when altercation took place between Mst. Khalida daughter of Fazal Ellahi accused and the deceased. Mst. Khalida went home and in consequence of her report respondents attacked the deceased and Muhammad Yasin. The learned counsel for the respondents pointed out that the trial Court wrongly held that the right of defence of person or property was available to the respondents. The respondents attacked the deceased by forming unlawful assembly by preconcert. The learned counsel further argued that the trial Court misdirected itself by constructing the theory that Muhammad Ajaib respondent should have not spared the eye- witnesses and would have killed them too with the deceased if he would have been present on the scene of occurrence which is purely a fib. He submitted that the relationship of some of the eye- witnesses with the deceased is not by itself sufficient to discord their truthful testimony. The learned counsel for the respondents further argued that the simple injuries suffered by respondents 2 to 5, were self-inflicted and being simple in nature would not justify the acquittal of the respondents. He maintained that the trial Court erroneously concluded that the ocular testimony is not compatible with the medical evidence. The distance between the assailant and the victim has been well explained by the prosecution witnesses, There was no illegality in the investigation of the case, submitted by the learned counsel. If there is any minor error in the investigation that cannot tell upon the substantive evidence recorded in the Court. The learned counsel also contended that the trial Court failed to point out any material inconsistency conflicting with the story of the prosecution. He maintained that the trial Court failed to take note of the fact that prosecution case is supported by ocular version of five eyewitnesses who are unanimous on the point that the deceased was killed by a shot of .12 bore gun, which was fired by Muhammad Ajaib respondent- accused, which hit him, who in consequence of said injury fell down and died on the spot. The learned counsel submitted that the statements of the eye-witnesses about firing made by Muhammad Ajaib, were not challenged in their cross-examination. The learned counsel maintained that the time and place of occurrence and the murder of deceased by a gunshot, as alleged by the prosecution are even admitted by the defence from the cross-examination on the eye-witnesses because in cross-examination the words 'complainant party' have been used. The learned counsel further argued that the respondents-accused including Muhammad Ajaib denied their guilt and never raised counter-version in their statements under section 242, Cr.P.C., but in their statements under section 342, Cr.P.C., Muhammad Ajaib took the plea of 'alibi' but all other
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respondents admitted the presence of all the accused on the scene of occurrence and took the stance that the complainant party trespassed their land and inflicted injuries upon them. He contended that the way the eye-witnesses were cross-examined by the defence, it transpires that the case of defence seems to be that Muhammad Ajaib accused did not commit the murder of the deceased but the fact of the matter is that one Banaras fired a shot upon Akram accused which hit the deceased. The learned counsel submitted that when both the prosecution and defence versions are taken into juxtaposition, the version taken by the defence seems to be an afterthought and concocted which does not appeal to a common mind. The prosecution story as alleged by the prosecution not only stands proved by the ocular testimony of the eye-witnesses, who have no animosity to falsely implicate the respondents but is also supported by the medical evidence as well as the evidence of recoveries on the pointation of the respondents-accused, argued by the learned counsel. He contended that the prosecution story stands corroborated by the blood- stained clay and crime empty recovered - from the place of occurrence and clothes of deceased wearing at the time of occurrence. It was also agitated by the learned counsel for the appellant- complainant that the motive as alleged by the prosecution also stands proved by the evidence of the prosecution. The learned counsel maintained that during purgation the eye-witnesses were found 'Adil'. Thus, the evidence of purgation strengthens the case of prosecution to accept the credibility of the eye-witnesses. He further contended that the place of occurrence is owned by Fazal Ellahi but it is a traditional thoroughfare of the villagers. Therefore, the case of defence of property does not emerge. He maintained that the injuries of the respondents-accused are simple except accused Tasib, who has a dislocation but he appeared before medical officer on 10-3-1992 and medical officer Dr. Tasleem Ahmed, a witness for defence, did not mention the duration of injury in the medical certificate. Therefore, the defence failed to make out a case that the fight between the parties was so much serious that the respondents had an imminent danger to their lives, thus, the case of self-defence has not been made out especially when no specific injury has been ascribed to the respondents-accused by the deceased. In support of his contentions he cited the following case-law:--- (j) PLD 1978 SC (AJ&K) 146. (ii) PLD 1980 Fed.Sh.C. 1. (iii) PLD 1983 SC (AJ&K) 211. (iv) PLD 1984 SC (AJ&K) 82. (v) PLD 1988 SC (AJ&K) 134. (vi) 1996 SCR 336. 9. M. Mushtaq Chaudhry the learned Additional Advocate-General appearing on behalf of the State fully supported the contentions raised by the learned counsel for the complainant. 10. While replying the arguments advanced by the learned counsel for the appellant, Mr. Sherzaman Chaudhry, the learned counsel for the respondents zealously argued that the prosecution failed to establish its case against the respondents. He contended that the case was registered on the basis of belated F.I.R. Which casts a serious doubt on the prosecution case. He also submitted that the eye-witnesses were interested, closely related to the deceased and were inimical to the accused party. The learned counsel maintained that some material prosecution witnesses were given up by the prosecution and this fact also adversely reflects on the prosecution story. He further argued that the prosecution has admitted in F.I.R., that they snatched the sticks and hatchets from the accused during the occurrence but it was not admitted by the accused that they inflicted an injury to the deceased or to any prosecution witness. Thus, according to learned counsel for the respondents the case of the defence is not a self-defence but is of total denial. He argued that it is prosecution which has to prove its case beyond any shadow of doubt and not the
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defence. He pointed out that the link road was not in existence before the occurrence rather the complainant party was forcibly constructing the road from the land of the accused party. Therefore, the complainant party was aggressor who injured the accused party. Medical reports reflect that Fazal Ellahi, accused suffered four injuries out of which two injuries were sustained on parietal region. Muhammad Akram received five injuries in the incident, out of which three were incised wound. Muhammad Naib suffered two injuries one of them was caused on the parietal region likewise, Tasib, the other accused was also injured. Both the injuries suffered by him were grievous. Thus, the number and nature of injuries sustained by the accused persons though simple but were of such nature which prove that the complainant party was aggressor and not the accused. He pointed out that investigation was dishonestly done and it is a case of glaring misuse of the powers of Musa Khan S.-I. Police (P.W.22), who has been waiting. For the prosecution party to get a case registered against the accused and did not register an F.I.R. Lodged by the accused party. According to the learned counsel for the respondents, Musa Khan S.-I. Police (P.W.22) is guilty of manufacturing the false evidence, thus, no credibility or credence can be given to the investigation done by said Musa Khan. The learned counsel maintained that the recoveries made from the respondents were also doubtful and the testimony of the eye-witnesses were not corroborated by the medical evidence because according to the facts and circumstances of the case the fire was made from the distance of few inches. In this respect he referred the post- mortem report Exh.P.J. And developed this argument that when the fire is made from front side the wound will be a circular but from the postmortem report the pellets were found in the body of the deceased along with the card-wad which proves that the fire was made from very close range. The learned counsel further argued that the alleged accusation of firing by Muhammad Ajaib accused does not appeal to a prudent mind as according to the prosecution story when Muhammad Ajaib shot a fire at the first instance then how it was possible that when his uncle and brothers were injured by the complainant party, he did not take any action and stood still, which transpires that the accused were falsely implicated in a concocted case. He further submitted that prosecution case suffers from serious illegalities and infirmities. Thus, the trial Court did not commit any error while acquitting the respondents-accused. In support of his arguments the learned counsel for the accused referred 1981 PCr.LJ 809. 11. In the light of the arguments advanced at the Bar, I have gone through the record of the case with utmost care and the authorities cited by the learned counsel for the parties. At the very outset, I have to consider the respective versions of the prosecution as well as that of the defence. The prosecution case briefly is that on the day of occurrence the accused party assaulted the complainant party after being armed with .12 bore gun, hatchets and sticks. Zahid Hussain, deceased forbade the accused party not to abuse while Muhammad Ajaib accused fired a shot upon him by a .12 bore gun from a distance of 5 Karams (about 27 feet), which hit upon the chest of the deceased who fell down and expired on the spot. The accused attacked the complainant party with the hatchets and sticks which were snatched away by the complainant party whereupon the accused also got injured whereas defence version is that the deceased was not murdered by Muhammad Ajaib accused but by Banaras son of Muhammad Hussain (P.W.3) and furthermore Muhammad Ajaib was not present at the scene of occurrence rather the complainant party was the aggressor who trespassed the land of Fazal Ellahi accused, tried to cut a tree and launched an attack upon the accused as a result of which the accused got injured. The defence version has been dis, dosed not only through the suggestions made by the eye-witnesses during the cros3- examination and from the defence evidence but also through the statements of the accused party in their examination under section 342 of Cr.P.C. It is accepted that in presence of counter-version the Court is enjoined to put th, version in juxtaposition to ascertain the truth. Therefore, when both the versions are taken into a juxtaposition and analysed in its true perspective, the version taken by
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the defence seems to be improbable, concocted and afterthought. For that reason the accused never raised a counter-version in their statements under section 242 of Cr.P.C. Particularly Muhammad Ajaib accused never took the plea of 'alibi' in his statement abovementioned and for the first time in their examination under section 342 of Cr.P.C., counter-version was taken by the accused party including Muhammad Ajaib. I am also alive of the fact that in absence of their raising counter-version in their statements under section 242 of Cr.P.C. The accused are not debarred from taking any counter-version at the time of cross-examining of the prosecution witnesses or at the stage of _recording of their statements under section 342 of Cr.P.C., because it is settled principle of criminal law that it is always the responsibility of the prosecution to prove its case beyond any reasonable doubt. 12. I have carefully gone through the cross-examination made by the defence on the eye- witnesses and arrived at the conclusion that the place of occurrence, the presence of the accused party, the presence of the eyewitnesses and the death of Zahid by a shot of .12 bore gun are admitted by the defence. It will be relevant to note here that the question of presence of Muhammad Ajaib at the scene of occurrence has never been challenged in cross-examination. For example Mehboob Khan (P.W.1) categorically stated that:--- {{URDU TEXT}} ' But the abovementioned statement was not particularly challenged by the defence and only a suggestion was put as to whether Banaras son of Muhammad Hussain shot a fire upon Akram which hit Zahid but the same was denied by the witness. Muhammad Kabir (P.W.2) also specifically stated that Ajaib shot a fire with a .12 bore gun which hit upon the chest of the deceased who fell down, but the presence of Ajaib at the spot or his making a fire upon the deceased has not been challenged in cross-examination and it was again suggested that Banaras shot a fire upon Akram which inadvertently hit Zahid deceased, same was denied by the witness. According to the prosecution story, Muhammad Yasin (P.W.6) who accompanied by Zahid, stated that the accused party stopped both of them and launched at attack. Ajaib fired a bullet which hit upon the chest of Zahid who fell down and resultantly died on the spot. But the fact of presence of Muhammad Ajaib accused on the scene of occurrence or the fact of firing by Muhammad Ajaib upon Zahid, deceased were not specifically challenged by the defence in the cross-examination and in a routine matter it was suggested that Banaras shot a fire which hit Zahid, deceased. In this state of affairs, presence of Muhammad Ajaib at the scene of occurrence and the act of his firing upon the deceased has been amply proved. The recovery of blood-stained clay and crime empty from the place of occurrence also suggest that in fact the occurrence took place on the same place which has been alleged by the prosecution. It is quite evident from the evidence of the eye-witnesses that the occurrence took place in the manner as alleged by the prosecution and not as suggested by the defence. It will be appropriate to note here that the prosecution version seems to be more probable because the said version was taken by the prosecution right from the day of occurrence and not after a year as was taken by the defence while examining the prosecution witnesses. The defence has taken a definite stand in cross-examination that instead of firing by Muhammad Ajaib accused, deceased was murdered by Muhammad Banaras who was having a gun and he fired upon Akram which inadvertently hit Zahid, deceased but this story cannot be accepted because it does not find any support either , by the defence evidence or by the prosecution story. The presence of Banaras on the spot has not been proved by the evidence rather it been clearly proved that Muhammad Ajaib, accused, was only person who was having a gun in his hand is at the time of occurrence. The .12 bore gun (P.6) has also been recovered from Muhammad Ajaib accused at his instance. The licence of the gun No,5649 was produced by Muhammad Afsar, father of Muhammad Ajaib accused, which was also taken into possession by Investigating Officer through recovery memo. Exh.P.F. Furthermore Akram accused did not give any explanation to this
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fact in his statement under section 342 of Cr.P.C. That Banaras shot a fire upon him which hit Zahid instead of him. 13. The 'note may also be taken to the fact that the trial Court firstly declared the prosecution witnesses 'Adil' and later on discarded their testimony without giving any cogent reason. The Trial Court at page 29 of its judgment held as under:-- {{URDU TEXT}} Thus, the said finding of the trial Court has not been recorded according to the admitted principle of criminal jurisprudence because once the witnesses have been declared 'Adil' then they cannot be declared liars in the same breath without any solid and cogent reason, even though they are interested witnesses. If witnesses are found 'Adil', the evidence of purgation strengthens the case of prosecution to accept the credibility of eye-witnesses as observed in Khawaja Imtiaz Ahmed v. The State (PLD 1988 SC (AJ&K) 134). In Niaz Muhammad alias Jaja and another v. The State (PLD 1983 SC (AJ&K) 211 at page 218, paragraph 16 of the judgment, it was opined as:-- "on careful examination the evidence of…
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