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Petitioner: AMJAD VS Respondent: THE STATE-
Court Name: Peshawar High Court Judge(s): Muhammad Ishaq Khan, Nazir Ahmad Bhatti Title: AMJAD vs THE STATE- Case No.: Criminal Appeal No. 121 of 1985 Date of Judgment:1987-05-25 Reported As: 1987 P Cr. L J 1773 Result: Appeal dismissed
JUDGMENT
JUDGMENT MUHAMMAD ISHAQ KHAN, J.-- Amjad son of Abdul Ghafoor, aged about 22 years, resident of Station Koroona, Tehsil Charsadda, Memon alias Mehmand son of Abdul Qadeem, aged about 22/23 years, resident of Prang, Tehsil Charsadda and Mehmood Shah son of Shad Mohammad, aged about 60 years, resident of Shabara, Tehsil Charsadda, stood their trial in the court of Mr. Mohammad Farooq Khan. Addl. Sessions Judge-II, Charsadda, on charges under sections 302/307/34/392/397/414/412/216-A/201/109 P.P.C read with Section 20 Islamic Law and Section 512 Cr.P.C. The learned Addl: Sessions Judge vide judgment dated 26-10-1985 convicted Amjad accused under section 302/ 34, P.P.C read with Section 301 P.P.C and sentenced him to death for the murder of Khanzada Khan son of Habib Khan. He further convicted accused Amjad u/s 302/34 P.P.C for the murder of Khanzada Khan son of Said Ahmad and sentenced him to suffer life imprisonment. He also convicted Amjad accused u/s 392/34 P.P.C read with Article 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sentenced him to 7 years' R.I. He further convicted Amjad accused a/s 307/34 P.P.C on three counts and sentenced him to 2 years' R.I. On each count. Lastly, Amjad was convicted a/s 201/34, P.P.C. And was sentenced to 4 years R.I. On each count. Similarly, the learned Addl. Sessions Judge convicted Memon accused a/s 414. P.P.C. Read with Section 34 P.P.C. And sentenced him to 3 years' R.I. With a fine of Rs.1,000 or in default of payment of fine to suffer further 3 months' R.I. Memon accused was also convicted u/s 201/34 P.P:C. And sentenced to 7 years R.I. With a fine of Rs.3,000 or in default to suffer further 6 months' R.I. Mehmood Shah accused was convicted under section 201/34 P.P.C. By the learned trial Judge and was sentenced to 2 years' R.I. Under sections 414/34 P.P.C. To one year R.I. And under section 412 P.P.C. To 7 years' R.I. All the sentences of Amjad accused were ordered to run
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concurrently. The sentences passed on Memon accused were ordered to run consecutively and the sentences awarded to Mehmood Shah accused were also ordered to run consecutively. It .May be pointed out here that accused Mehmood Shah was acquitted of the charge under section 302/109, P.P.C. 2. Dissatisfied with the judgment of the learned trial Judge Amjad convict filed Criminal Appeal No.121 of 1985 against his conviction and sentences. Similarly, aggrieved with the judgment of the trial Judge Memon convict filed Cr. Appeal No.125 of 1985 against his conviction and sentences and likewise Mehmood Shah convict not content with the impugned judgment of the learned Addl: Sessions Judge filed Criminal Appeal No. 131 of 1985 challenging his conviction and sentences. Mohammad Riaz Khan, complainant, filed Criminal Revision No.91/1985 praying for enhancement of sentences of imprisonment, for fixation of amount of compensation and for increasing the fine imposed upon the convicts and for adding the fine with the sentences of the convicts where the same has not been imposed. There is also a Murder Reference No.14 of 1985 for the confirmation of sentence of death awarded to Amjad appellant. Memon accused, it may be pointed out here, was also tried u/s 13 A.O. And was convicted and sentenced to one year R.I, He has also challenged his conviction and sentence by a separate appeal No.124 of 1985. By this single judgment we propose to decide all the 4 appeals, the revision petition and the murder reference. 3. On 9-2-1985 at 1630 hours a report was lodged by complainant Mohammad Riaz Khan (P.W.11) son of Khanzada Khan (deceased) in Police Station Prang which was registered vide F.I. R. No.39. Therein he stated that on the said day i.e. 9-2-1985 at about 4 p.m. The complainant along with his brothers Mohammad Ayaz Khan (not produced). Mohammad Ijaz Khan (P.W.12) in the company of their father Khanzada Khan went to the spot, which is a vacant site situated in Moza Prang Yasin Zai in front of the house of Kapoor Khan for the purpose of Abadi The complainant further stated that afterreaching there they started dumping earth on that place for the above mentioned purpose when in the meanwhile Johar and Akhtar sons of Mohammad Afzal Khan, residents of Prang (absconding accused) duly armed with shotguns. Amjad appellant son of Abdul Ghafoor, their servant, resident of Prang, who was armed with a rifle, and Waliullah alias Aliullah son of Abdullah (absconding accused) resident of Maira Prang armed with, a tamacha appeared there. All the 4 accused stopped the complainant party from dumping the earth at the spot claiming their ownership on the vacant site. Meanwhile Waliullah alias Aliullah (absconding accused.) allegedly snatched away rifle 30.6 bore from the complainant Mohammad Riaz licenced in the name of Naeem, his brother, and thereafter all the 4 accused ran towards the house of Kapoor Khan. It is further alleged in the FIR that when they reached near the house of Kapoor Khan all the 4 accused started firing at them and with the fire shots of the accused father of the complainant was hit on the head and fell down to the ground. With the same fire shots Javed son of unknown, resident of Prang and another passer-by were also injured. After the occurrence the above mentioned accused made good their escape. However, the occurrence was witnessed by the brothers of the complainant. The complainant charged all the 4 accused for causing injuries to his father, Subsequently, on the information of Gul Roz, A.S.I., at about 1755 hours on the same day about the death of Khanzada Khan son of Said Ahmad the Section of law was converted into 302, P.P.C. Instead of section 307, P.P.C.. It may be mentioned here that initially the report of the complainant was recorded u/s 307/34 P.P.C.. Similarly, on the report of Mohammad Darvesh Khan S.H.O., P.S. Prang, which was received in the Police Station on 1710 hours, the section of law in respect of the injuries of unknown, person, who was subsequently identified as Khanzada son of Habib Khan, was also altered from 307 to 302, P.P.C. So far as Javed son of unknown is concerned he was admitted in the Casualty Ward of Lady Reading Hospital, Peshawar, but he recovered from the wounds which were caused on his right axilla. However, a case u/s 307 P.P.C. Was also included in the same F.I.R. With regard to the wounds received by Javed. No enmity has been mentioned in this report by the
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complainant excepting the one with regard to the claim of ownership of the accused over the piece of land which they asserted at the time of occurrence. 4. Soon after the occurrence all the 4 accused absconded from the spot and warrants a/s 204 Cr.P.C. Were issued against them which are, Exh.P.L./1 to Exh.P.L./4, on the application, Exh.P.C., of the S.H.O. Concerned. As the accused could not be traced out, therefore, on the statement of Dawa Khan, D.F.C., proceedings u/s 87 were initiated and on the application of the S.H.O., Exh.P.O., proclamations u/s 87 were issued against the 4 accused which are Exh.P.O./1 to Exh.P.O./4. Subsequently, political authorities raided the tribal territory of Mahmand Agency and appellant Amjad was arrested by the officials of Political Agency whereas other accused could not be arrested. According to the statement of P.W.17, Mohammad Darvesh Khan SHO, Amjad, appellant, was handed over to him on 15-2-1985 by D.S.P. Headquarters. During the investigation of the case it was disclosed that Mehmood Shah and Memon, appellants, also participated and abated the offence, therefore, they were also arrested by the police. All the 3 appellant's made their confessions before the Magistrate Ist Class, Charsadda, Mr. Hayatullah Khan (P.W.4). Alongwith them one Rab Nawaz was also arrested but the prosecution withdrew their case against the said Rab Nawaz. All the 3 appellants were charge-sheeted by the learned trial Judge for offences under section 302/34 P.P.C. (2 counts), 307/34/392/34 P.P.C. Read with Article 20, Offences Against Property (Enforcement of Hudood) Ordinance 1979, 307/34 P.P.C. (3 counts), 201/34 P.P.C., 414/34 P.P.C., 412 and 109, P.P.C. However, Johar, Akhtar and Waliullah accused were found to be not available, hence they were proceeded against u/s 512 Cr.P.C. 5. That prosecution in all produced 17 witnesses at the trial which include the statements of P.W.1 Dr. Faizur Rehman, who conducted post-mortem examination on the dead body of Khanzada son of Habib Khan, P.W.2 Dr. Sarfaraz, who examined Javed, the injured P.W.: P.W.3 Dr. Mubarak Hussain, who performed autopsy on the dead body of Khanzada Khan son of Said Ahmad Khan, P.W.4 Hayatullah Khan, Magistrate Ist Class, Charsadda, who recorded the confessional statements of the 3 appellants; P.W.5 Gul Roz Khan A.S.I., who prepared the injury-sheet of Khanzada Khan son of Said Ahmad Khan and also his inquest report, P.W.6 Dawa Khan, DFC No.3442, who entrusted with the warrants u/s 204 Cr.P.C. And also the proclamations; P.W.7 Mohammad Afzal HC No. 4548, who is a marginal witness to the recovery memos. Exh. P.F., P.H. P.I.; P.W.8 Riazul Islam, LHC No. 662; who accompanied the dead body of Khanzada Khan son of Said Ahmad at the time of post-mortem examination; P.W.9 Alam Sher, FC No.3288, who escorted the dead body of Khanzada son of Habib Khan at the time of post-mortem examination and P.W.10 Mukarram Khan, Junior Clerk, English Office, who was licence clerk during the days of occurrence and who deposed about licences of the crime weapons. Mohammad Riaz, complainant was examined as P.W.11 and Mohammad Ijaz Khan son of Khanzada (deceased) a brother of the complainant, was examined as P.W.12, who both claimed to be the eye-witnesses of the occurrence. P.W.13 is Mohammad Miskeen, IHC No.1128 is a marginal witness to the recovery memos. Exh.P.F., P.H., P.K. And P.K./1. P.W.14 is Haji Wahid Gul who is a witness to the recovery memos. Exh. P.O., P.C. And P.B. He is also a marginal witness to the recovery memo., Exh.P.G. P.W.15 is Ziarat Khan son of Rahim Gul who identified the dead body of Khanzada son of Habib Khan (deceased). P.W.16 is Sardar Khan, M. H. C. No. 136 who altered the section of law in the FIR from 307 P.P.C. To 302 P.P.C.. He is also a marginal witness to the recovery memo. Exh.P.J. And EXh.P.W.l6/1. He also endorsed the FIR in respect of death of Khanzada Khan son of Said Ahmad Khan deceased. Last witness of the prosecution is Mohammad Darvesh Khan, S.H.O., P.S. Prang, who investigated the case. At the close of the prosecution evidence statements of the 3 appellants were recorded u/s 342, Cr.P.C. And also u/s 340 Cr.P.C. In these statements they denied the allegations against them for the commission of the offence in any way. After taking into consideration the prosecution evidence on record the learned trial Judge convicted and sentenced the 3 appellants as mentioned in the foregoing paras. Of this judgment.
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6. On 9-2-1985 at 5-15 p.m., Dr. Faizur Rehman. Medical Officer, Civil Hospital, Charsadda, conducted the post-mortem examination on the dead body of Khanzada son of Habib Khan and found the following injuries on external examination:- (1) Two fire-arm entry wounds on left chest (front) each --" x --". One on the left nipple, the other 1" above and medial to it . (2) Two entry wounds in left axilla on chest in anterior axillary line each one --" x --". (3) A fire-arm inlet wound on lower part of left side of chest in anterior axillary line, --" x --". (4) A fire-arm inlet wound on left upper arm anteriorly --" x --". (5) A fire-arm inlet wound on left upper are posteriorly, corresponding to wound No.4, --" x --". (6) A fire-arm grazed wound 2--" x 1" x skin deep on left lower arm medial side. (7) A fire-arm inlet wound --" x --" mid-arm anteriorly. (8) A fire-arm inlet wound about --" x --" left arm just above medial epicondy of humerous. (9) Two fire-arm entry wounds upper interscapular region each one --" x--". (10) A fire-arm entry wound on occipital region (mid-line) --" x --". (11) A fire-arm grazed wound 1" x --", on right side of back of neck (mid-line). (12) A fire-arm entry wound on right parotid region. (13) A fire-arm entry wound upper lip (left side) --" x --". (14) A fire-arm entrance wound left temple --" x --". (15) A fire-arm transverse graced wound right middle and right ring fingers back side each --" x --" On internal examination the skull left parietal region, Membrance of brain, Thorax wall, pleurae, Larvnx, Apex of right lung, left lung, pericardium, heart, blood vessels at the site of injuries, mouth and pharynx were found injured by the doctor. The stomach was found intact and contained semi- digested food. The muscles, bones and joints were also found injured at the sites of injuries mentioned above. In the opinion of the doctor the deceased died of haemorrhage shock due to fire-arm injuries to the vital organs as mentioned above. Time between injury and death was instantaneous and time between death and post-mortem was about one hour. On 10-2-1985 at 7-30 a.m. Dr. Mubarak Hussain, M.O. Incharge Civil Hospital, Charsadda, conducted the post-mortem examination of Khanzada Khan son of Said Ahmad Khan, resident of Prang and found the following injuries on external examination:-- (1) "A grazed wound of fire-arm over left side of lower lip --" x --". Lower teeth on left side fractured on the same level. (2) An entrance wound of fire-arm on the left side of fore-head about 1--" above left eye-brow --" x --". (3) An entrance wound of fire-arm on the dorso-medial aspect of right finger of first phalynx --" x - -". (4) An exist wound of fire-arm on the right palm in the middle of third and fourth metacorpal bone --" x --" corresponding to wound No. 3. On internal examination Cranium skull, membranes, brain, thorax, larynx, abdomen, mouth and tongue were found injured. Stomach was healthy containing semi-digested food. Small intestine were also found healthy containing digested food. Large intestines were healthy containing foecal matter. Muscles were also found injured at the site of injuries. In the opinion of the doctor the deceased died of shock, haemorrhage and injury to the brain caused by fire-arm injury stated above. Probable time between injury and death was about 11 hours and time between death and post-mortem examination was about 13 to 14 hours. On 9-2-1985 at about 5-30 p.m. Dr. Sarfaraz, C.M.O. Lady Reading Hospital, Peshawar, examined Javed and found the following injuries:--
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(1) One entry wound -- c.m. x -- c.m. At the anterior border of the right axilla. No charring marks. Corresponding cuts were present on clothes. The doctor has described the injury on the person of Javed as grievous. 7. We have heard Mr. S. M. Zafar, learned counsel for Amjad appellant, and M. Zahoorul Haq assisted by Tariq Parvez, learned counsel for the complainant at great length. We have also heard the learned Addl: Advocate-General for the State, Mr. Jehanzeb Khan, learned counsel for Memon, appellant, and Mr. Jamal Khan Khattak, counsel for Mehmood Shah, appellant. With their help we have also gone through the entire record very minutely and with great care and caution. 8. In this case Muhammad Riaz (P.W.11) and Muhammad Ijaz (P.W.12) are the eye-witnesses of the occurrence. Muhammad Riaz (P.W.) soon after the occurrence within 30 minutes lodged the First Information Report wherein he has charged 4 persons, namely, Amjad appellant, Johar, Akhtar and Waliullah, absconding accused, for effectively injuring his father Khanzada, another Khanzada (unknown) and one Javed, also unknown. It may be mentioned here that the 2 absconding accused namely Johar and Akhtar are admittedly the first cousins of the informer and their sister is also married to Muhammad Riaz (complainant) while appellant Amjad is their servant and the third absconding accused Waliullah is the father-in-law of the absconding accused Johar and thus not related to the complainant party. Admittedly the complainant party has no previous enmity either with the absconding accused or the appellant, Amjad. So the question arises why the complainant charged them. They are well-educated people, therefore, there seems no ground for disbelieving the version given in the F.I.R. There is no hypothesis whatsoever that the F.I.R. Is false. In this F.I.R. Muhammad Riaz (P.W.) has given a very straight forward narration of the occurrence. He has stated therein that he along with his 2 brothers Muhammad Ijaz (P.W. 12) and Muhammad Ayaz (not produced) along with their father Khanzada Khan (deceased) had gone to the vacant site owned by them and were dumping earth in connection with the Abadi over the said piece of land when in the meanwhile Johar, Akhtar sons of Muhammad Afzal, Amjad appellant, son of Abdul Ghafoor their servant, and Waliullah alias Aliullah son of Abdullah came there duly armed and stopped them from dumping earth on the vacant site and claimed their ownership over the said piece of land; that Waliullah snatched away the licenced rifle from the complainant of 30.6 bore and all the 4 accused ran towards the house of one Kapoor Khan and when they reached near the said house, they started firing at them with which father of the complainant Khanzada Khan was hit on his head and fell to the ground and that with the same fire shots one Javed son of unknown and another passer-by were also hit whereafter the accused ran from the spot. At the trial this P.W. Has stuck to his version given in the First Information Report and has not made any exaggeration therein so much so that he has not stated in the F.I. R. That his father Khanzada was killed with the shots of the 4 accused. He only stated this much that with the shots of all the accused his father and one Javed and another passer-by were injured. This character of the complainant shows that he was very straight forward in the matter of reporting the incident to the police. It is important to note that he has given in the F.I.R. That the occurrence was witnessed by his two brothers i.e. Muhammad Ijaz, P.W. 12 and Muhammad Ayaz (not produced). He has not named Javed, the injured man, to have seen the occurrence. Therefore, we hold that the F.I.R. Which was lodged soon after the occurrence i.e. Within 30 minutes, is nothing but a true account of the occurrence eliminating possibility of substitution or false implication. The learned counsel for the appellant was unable to rebut this position. In this view of the matter we are supported by so many authorities of the superior Courts and we quote some of them viz. Punhal Shah and others v. The State PLD 1984 SC 22 wherein their Lordships have observed as under:-- "F.I. R. Lodged soon after the occurrence, bearing no scope for consultation and fabrication--Held, presumption is that it was a truthful account eliminating possibility of substitution or false implication.
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In another authority reported in Nawazish Ali and 2 others v. The State 1985 P.Cr.L.J. 1712 Citation C runs as under:-- "First Information Report lodged with promptitude gives rise to conclusion that its maker either witnessed affairs or was otherwise concerned with it. In the same authority Citation D is as follows:-- "First Information Report made promptly and not shaken--can be used to corroborate statement of complainant." At page 2074 of the same authority Citation B is in the following words:-- "First Information Report--A genuine and prompt first information report can be used to corroborate statement of its maker." Our own authority reported in Maulvi Muhammad Jan. v. The State PLD 1984 Pesh. 207 Lays down as under:-- "Evidence--Contention that very material improvement has been made in prosecution story at time of evidence thus making case against accused doubtful--No question asked from witnesses regarding such improvements neither confronted in that regard--Contention, held, no force in circumstances." 8. As regards the objection raised by the learned counsel for Amjad appellant about the testimony of the two eye-witnesses i.e. Muhammad Riaz (P.W.11) and Muhammad Ijaz (P.W.12) we have so many authorities of the superior Courts in support of the prosecution case that evidence of such eye-witnesses can be believed even without corroborative evidence because such witnesses who are not only related to the deceased but closely related to the accused are not expected to falsely involve their own kith and kin in a murder case. The first authority in support of this view is reported in Muhammad and others v. The State PLD 1981 SC 365 which runs as under:-- Reliability-Ocular account furnished by two eye-witnesses who were sons of deceased but also closely related to three appellants--Held, evidence of such eye-witnesses can be believed even without corroboratory evidence as-they are not expected to falsely involve their own kith and kin in a murder case." The second authority of our Peshawar High Court is reported in Amir Hussain Shah and 3 others v. The State PLD 1977 Peshawar 1 wherein the observations made by their Lordships is as follows:-- "Witness--Mere relation of witnesses with complainant party without evidence of previous enmity between parties--Held, does not render evidence of such witnesses unworthy of evidence." The next authority which could conveniently be cited in support of the above view is reported in Ghulam Hussain v. The State 1974 SCMR 209 wherein the view taken by their Lordships is as follows:-- "Eye-witnesses though related to each other yet not on inimical terms with accused--One of witnesses and injured person, his statement carries great weight--Ballistic expert stating empty as matching with crime gun, allegedly used by accused---Statements of eye-witnesses, held, sufficiently corroborated." And the last but not the least authority which can be quoted with advantage is reported in Mubarak v. The State 1982 SCMR 531-a which runs as under:-- "Prosecution case established beyond any doubt--witness natural and cousin of both parties--Not an interested witness---Statement of such witness, in absence of any motive to give false evidence, held, can implicitly be relied upon and sufficient to bring home guilt in circumstances." 9. Mr. S.M. Zafar, learned counsel for appellant Amjad, vehemently argued that according to the inquest report in column No. 1, prepared by Muhammad Darvesh Khan, S.H.O. P.W. 17, the dead body of Khanzada son of Habib Khan was lying on the ground near the Hujra of Habibullah Khan and not at point No. 2 mentioned in the site-plan. According to the learned counsel the I.O. Recovered only 3 pellets from the two dead bodies and one pellet from the injured who had received an injury,
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excluding the possibility of the use of any rifle. But we have the testimony of. P.W. 11 Muhammad Riaz Khan and P.W. 17 Muhammad Darvesh Khan, I.O. On record as well as the site-plan, Ex. P. B., Point No. 2of the site plan denotes the presence of Khanzada son of Habib Khan. Two pellets were recovered from this point and, it is important to note, the recovery of these two pellets has not been challenged by the defence counsel in any manner at the trial. On the basis of this theory that it was a cross-firing case the learned counsel for the complainant refuted the contention of the learned counsel for the appellant that column No. 1 of the inquest report denotes that it was "Raasta Rawinda Yasin Zai" which does not pin-point the place where Khanzada deceased was hit. According to P.W. 4 Wahid Gul blood was taken into possession by the I.O. From near the hujra of Habibullah and his statement is supported by the statements of P.W. 11, the complainant, and P.W. 17, the I.O. As blood was taken into possession from point No. 2 and pellets were also recovered from this point, therefore, we hold that from point No. 2 blood of Khanzada son of Habib Khan was picked up by the I.O. In this way there is a distinction between points 1, 2 and 3. Point No. 1 is a place where Khanzada Khan was hit. Point No. 2 denotes the place where Khanzada son of Habib Khan was hit and point No. 3 shows the place where Javed was present and the same position was accepted by the I.O. While answering the question put forth on behalf of Amjad appellant in his cross--examination. In his cross-examination Muhammad Darvesh Khan P.W. 17, has categorically stated that when he reached the spot the dead body of an unknown person was lying there at point No. 2 shown in the site plan near the house of Haji Muhammad. He also admitted it to be correct that in column No. 1 of the inquest report. Exh. P.M./1, he has recorded that dead body of the unknown person…
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