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Petitioner: SAJID and anothers VS Respondent: THE STATE and anothers
Court Name: Peshawar High Court Judge(s): Jawaid Nawaz Khan Gandapur, Tariq Pervez Title: SAJID and anothers vs THE STATE and anothers Case No.: Criminal Appeal No,28 and Murder Reference No,4 of 1995 Date of Judgment:1997-04-02 Reported As: 1998 P Cr. L J 114 Result: Sentence reduced.
JUDGMENT
JUDGMENT ' TARIQ PERVEZ KHAN, J.--- Sajid son of Raza Ahmed, Rukhsar Ahmed alias Jameel alias Shado son of Shoukat Zaman, the two appellants were put to trial as they were charged under sections 302/337-A(ii) and 34, P.P.C. As amended by Qisas and Diyat Ordinance, 1991. They were accused of committing Qatl-e-Amd of Khurshid Ahmed son of Bashir Ahmed aged 17/18 years and also of causing injuries to P.W. Kamal Khan son of Salar Anwar Zaman, aged 19 years. 2. At the trial the prosecution produced 13 witnesses whereafter closed its case. The accused were examined under section 342, Cr.P.C. And their stand was of being innocent and total denial to the allegations of the prosecution. The accused-appellants however did not decline to appear as their own witnesses under section 340, subsection (2), Cr.P.C. Nor did they produce any defence. 3. The facts of the prosecution case as disclosed in the F.I.R. (Murasila) by Arif Zaman son of Muhammad Amin (32/33 years), a maternal-uncle of deceased Khurshid Ahmed were, that on the day of occurrence i,e, 22-9-1992 at 117-15 hours he was present in the house of Bashir Ahmed, his brother-in-law, situated in Sector-IV of K.T.S. (Khalabat Township). It was at that juncture that the two appellants namely Sajid and Jameel (Rukhsar) came in the street, called out Khursheed Ahmed the maternal-nephew of the complainant and asked him that their pigeon has come to the house of Khurshid Ahmed deceased. Khurshid Ahmed (deceased) went out, followed by the complainant and informed that the pigeon of the accused-appellants had not come to their house and that there were their own pigeon. 4. It was further stated, that Khurshid accompanied the two accused-appellants while the complainant stayed behind in the house, when Chanzeb a brother of Khurshid deceased, in the meanwhile informed the complainant that Jameel and Sajid were quarreling with Khurshid
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deceased, on which the complainant went towards the Committee Ground and having reached there, found that accused Jameel had caught hold of Khurshid, while Sajid was inflicting knife "Chhuri" blows on the person of Khurshid. Having seen the arrival of the complainant the accused left the spot and fled away. 5. The occurrence was stated to have been witnessed by Noor Nabi Shah (P.W.10) and Yasar Khan (abandoned) both residents of K.T.S. Sector IV. ' It was specifically stated in the F.I.R. (Murasila) that there was no motive for the occurrence. ' Khurshid deceased then injured was taken to Civil Hospital K.T.S..And having reached the hospital succumbed to the injuries. 6. Having learnt about the occurrence Umar Khitab I.H.C. (P.W.11) who, on the day of occurrence was posted at Police Post K.T.S. Haripur rushed to the Emergency Ward of Civil Hospital K.T.S. And recorded the report of Arif Zaman in the shape of Murasila Exh.P.A./l. The injury-sheet Exh.P.W.11/1 and inquest report Exh.P.W.11/2 were also prepared by the said I.H.C., who, handed over the dead body of Khurshid to the doctor for post-mortem examination and sent the Murasila to the police station for the registration of the case, which was accordingly registered as F.I.R. Exh.P.A. 7. Dr. Iftikhar Ahmed (P.W.6) Medical Officer of Civil Hospital K.T.S. Examined Khurshid Ahmed deceased who was then injured and found the following injuries on his person:-- (1) Stab wound 2" x -1-1/2" x thoraxic cavity on left upper chest with corresponding cuts on shirt and jacket handed over to police. (2) Incised wound of size 5" x 1" x muscle deep in front and lateral side of left upper are on lower 1- 1/3rd with corresponding cut on shirt handed over to police. (3) Two stab wounds 1" apart from each other each of size 1" x 1-1/2" x muscle deep on right upper arm with corresponding on shirt handed over to police. (4) Stab wound of size 1" x 1-1/2" x reaching bone on lateral side of left upper arm with corresponding cut on shirt handed over to police. (5) Incisional mark 4" in length in front and around neck. (6) Multiple abrasion on face. (7) Incised wound of size 1" x 1-1/8" skin deep in front of left upper lobule of left ear. (8) Stab wound of size 1" x 1-1/2" thoraxic cavity on back of the lower chest with corresponding cut on shirt and jacket handed over to police. (9) Incised wound of size 1-1/2" x 1-1/6" skin deep on back of right loin with corresponding cut on shirt and jacket handed over to police. ' As the deceased succumbed to the injuries the same evening immediately after arrival in the hospital, therefore, the post-mortem examination was conducted by the same doctor but on the following day i,e, 23-9-1992 at 6-15 a.m. 8. While performing the autopsy the doctor confirmed the injuries already recorded by Shim in his medico-legal report which was Exh.P.W.6/1. On the internal examination the doctor found thorax walls, ribs, pleaurae injured on the left side including the left lung. There was no internal abdominal injury. In the column of remarks as to the cause of death it was stated to be shock/haemorrhage caused by direct injury to left lung, Brachial and thoracic vessels caused by sharp weapon. The duration between injuries and the death was about one hour while that of death and post-mortem examination about 12 hours. The dpctor had proved his post-mortem examination report by exhibiting the same as Exh.P.W.6/2. 9. The other prosecution evidence consists of the statements of private as well as official witnesses and their statements in brief, are reproduced below for convenient references. 10. P.W.1 Dr. Muhammad Irshad has medically examined Kamal Khan P.W., on 23-9-1992 at 6-45 p.m. And has found a linear scar on the right hand of incised cut 1" x superficial x skin deep caused with sharp weapon and injury was described as simple. Duration given was 26/27 hours.
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11. P.W.2 Raja Muhammad Sadiq Tehsildar Haripur has conducted test identification parade on 22- 11-1992 Exh.P.W.2/2. The identification parade was conducted in respect of accused Jameel (Rukhsar) through P. Ws. Arif Zaman (P.W.8), Noor Nabi Shah (P.W.10) and Yasar (not produced). The identification was necessitated to establish the identity of accused Rukhsar who was named as Jameel in the Murasila, being known by different alias namely some time Jameel, Rukhsar and some time as Shado. ' Mahmood Khan I.H.C. Appeared as P.W.3 as witness of memo. Exh.P.W.3/1 in respect of taking into possession of blood-stained shirt and jacket belonging to deceased Khurshid. 12. P.W.4, Iftikhar Khan was examined to prove memo. Exhs.P.W.4/1 and 4/2, relating to taking into possession some blood from the spot and bloodstained Chhuri (weapon of offence) which was taken into possession on the alleged pointation of Sajid accused who, while in police custody had led the police party to effect such recovery i,e, Chhuri. 13. Safdar Shah F.C. Appeared as P.W.5 who has escorted the dead body of Khurshid deceased from the time of the expiry till post-mortem examination and had brought the shirt and jacket of the deceased, from the hospital and has passed on the same to the Investigating Officer. 14. P.W.7 is Sajid Hussain Shah who has witnessed the recovery of a shirt and Shalwar taken into possession vide memo. Exh.P.W.7/1. Similarly, he has deposed in respect of memo. Exh.P.W.4/2, pertaining to recovery of Chhuri, and memo.Exh.P.W.7/2 which is a sketch in respect of the said Chhuri, prepared by the Investigating Officer and signed by the witness. ' The recoveries which were effected through the aforesaid two memos. Were on the pointation of accused Sajid having led the police party, while in custody and were made in the presence of Sajid Hussain Shah. 15. The prosecution has produced 3 eye-witnesses to furnish ocular account of the occurrence through P.W.8 Arif Zaman a maternal-uncle of the deceased Khurshid, P.W.9 Kamal Khan (19 years) and Noor Nabi Shah P.W.10 (49 years). 16. Arif Zaman is the complainant of the case and he has reiterated the facts, as narrated by him in the Murasila by saying that at about 5-00/5-15 p.m., on the day of occurrence, when he was present in the house of Bashir Ahmed his brother-in-law, accused Sajid and Rukhsar came, called deceased Khurshid and demanded their pigeon to which the deceased replied in the negative. He further stated that he was still in the house of his brother-in-law when Chanzeb (the same child was not examined by the police under section 161, Cr.P.C.) came and informed Arif Zaman about the quarrel by the two appellants with the deceased, learing which, this witness rushed towards the Committee ground and saw the occurrence as narrated by him in the Murasila (F.I.R.). This witness has made two departures from his F.I.R., one, by naming Jameel accused as Rukhsar and second, the induction of the name of Kamal Khan (P.W.9) as an eye-witness to the occurrence. ' This witness has stated that the deceased after having received injuries was shifted to the hospital where he died. He has also admitted having made the report Exh.P.A./1 to be correct and bearing his signature. He has stated in the last para. Of the examination-in-chief that Rukhsar has also more names as Jameel and Irshad. 16. P.W.9 Kamal Shah is not named in the F.I.R. But has been named both by P.W.8 Arif Zaman and P.W.10 Noor Nabi Shah in their Court statements as eye-witnesses. The facts given by P.W.9 about the main occurrence are similar to that as given by Noor Nabi Shah. He has stated that at the relevant time he was going from the house towards Municipal Committee Park and on hearing uproar was attracted to the spot and noticed accused Rukhsar catching hold of deceased Khurshid while Sajid stabbing him. This witness further stated that, he tried to effect separation to rescue the deceased from the clutches of the accused and in the said process received injury on his right hand with the Chhuri. He confirmed that during the occurrence Arif Zaman, Noor Nabi Shah
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and Yasar Khan also arrived and having noticed their arrival the accused ran away from the spot. He confirmed that the injured was shifted by Arif Zaman to the hospital. 17. P.W.10 Noor Nabi Shah, as stated above, has given the same facts as narrated by P.W.9 Kamal Khan and confirmed that Kamal Khan was effecting separation and that Arif Zaman has also witnessed the occurrence alongwith Kamal Khan and Yasar Khan. ' He is also witness to the recovery memo. Exh.P.W.4/l in respect of the taking into possession of earth from the spot. P.W.11 Umar Khitab I.H.C. Is the author of Murasila Exh.P.A./1 and has prepared the injury-sheet and inquest report of the deceased, while P.W.12 Muhammad Fareed Khan, Inspector has submitted challan against the accused-appellants. 18. The last witness of the prosecution is Muhammad Akram Khan the then A.S.H.O. Police Station, Haripur who has appeared as P.W.13. This witness, on receipt of Murasila registered the case as Exh.P.A. By incorporating the contents therein and proceeded to the spot. On reaching there he prepared the site plan Exh.P.B. And recorded the statements of the P.Ws. He has taken into possession a shirt Exh.P.1, Jacket Exh.P.2 both blood-stained with cut marks belonging to deceased Khurshid as they were produced to him by F.C. Safdar Shah and in this respect prepared memo. Exh.P.W.3/1. This witness has taken into possession blood-stained earth vide memo. Exh.P.W.4/1. ' Through Exh.P.C., injury-sheet in respect of Kamal Khan was prepared by him. He also sent Kamal Khan to the Medical Officer for medical examination. 19. Accused Sajid was arrested on 24-9-1992 and similarly on the same day Rukhsar was also arrested. Accused Sajid when in police custody and in handcuffs led the police party to the place of recovery of weapon of offence, on which Chhuri was recovered on the pointation of the accused, which was bloodstained and rapped in plastic envelope. In this respect Chhuri was given Exh.P.3 while memo. Prepared was Exh.P.W.4/2. On the recovery of Chhuri, a sketch of Chhuri Exh.P.W.7/2 was also prepared and also map of the place of aforesaid recovery, which was effected on 26-9- 1992. 20. On the aforesaid date the same accused namely Sajid while still in handcuffs by the police and in custody had taken to his house and produced his -Shalwar Exh.P.4, Shin Exh.P.5, having blood- stains and were allegedly worn by the accused at the time of the commission of the offence. Memo. Exh.P.W.7/1 was prepared about the taking into possession of these clothes while sketch map of the house wherefrom the said recovery was effected is Exh.P.E. All the above memos. And corresponding recoveries were effected while being witnessed by the attesting witnesses who have signed the memos. 21. This witness is the Investigating Officer as well, had applied for holding a test identification parade in respect of Rukhsar accused through P.Ws. Arif, Yasar and Noor Nabi Shah. He has also sent blood-stained articles consisting of earth, garments of the deceased and of the accused Sajid alongwith blood-stained Chhuri to the Chemical Examiner vide application Exh. P. F. Dated 26-9- 1992 and the report of the Chemical Examiner is Exh.P.G. 22. After the close of the prosecution evidence, the learned trial Judge examined the two accused- appellant under section 342, Cr.P.C. They denied the charge and pleaded to be innocent and stated that they have been falsely involved in this case. Accused Sajid has denied the recovery of the clothes as well as of Chhuri at his pointation. The learned trial Judge came to the conclusion that the accused-appellants are guilty of the offence and convicted and sentenced them to death. They were further directed to pay a sum of Rs,50,000 in equal share as compensation under section 544-A, Cr.P.C. To legal heirs of the deceased and in case of non-payment of such compensation to suffer 3 months imprisonment each. 23. The judgment of the trial Court has been challenged in this appeal. We are also seize of Murder Reference sent to us.
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24. Before going to the points of challenge, on which the conviction and sentence are in question, in this paragraph we would like to give our own resume of evidence which is as follows. 25. The occurrence took place on 22-9-1992 at 17-15 hours near Committee Ground of K.T.S. Haripur, the report whereof, was made on the same day at 18-15 hours. The complainant of the case is Arif Zaman while the deceased is Khurshid Ahmed. The accused charged in the F.I.R. Are Sajid and Jameel while the occurrence had been witnessed by Noor Nabi Shah, Yasar Khan and the complainant. One Kamal Khan, however, also claimed to have seen the occurrence. 26. Learned counsel for the appellants has assailed the judgment on the point of conviction and sentence and formulated the following points, according to him which are:-- (a) Delay in lodging the F.I.R. (b) Occurrence being unseen, and so-called eye-witness are procured witnessses. (c) The eye-witnesses are related to the deceased and are also chance witnesses. (d) Contradictions between ocular evidence and the medical evidence. (e) The recovery of knife (Chhuri) on the pointation of Sajid accused-appellant is planted and so are the clothes. (f) The test identification parade should be excluded from consideration. (g) Absence of motive and in alternative, the plea that motive is inadequate. (h) Dishonest investigation. 27. Referring to the first submission in respect of, making of report the learned counsel stated that the occurrence took place at 17-15 hours, and that the deceased was shifted immediately, in the Suzuki, to the hospital as such the delay of one hour in making the report, will cast doubt on the truthfulness and the veracity of the time of occurrence. He also referred to the medical examination conducted by the doctor in the hospital when the deceased was still alive and the time of the examination given therein is 5-10 p.m. i,e, 17-10 hours meaning thereby, that the report was made later while the injured was examined earlier. In this respect he also referred to the non- mentioning of duration of the injuries by the doctor in medico-legal report Exh.P.W.6/1. Still pressing the same point the learned counsel submitted that Kamal Khan P.W. Who was medically examined vide Exh.P.W.1/1 also indicates the duration of injuries to be 26/27 hours and as the said injured was examined on 23-9-1992 at 6-45 p.m. It could be calculated, that the occurrence could have taken place between 3-40 to 3-45 p.m. On 22-9-1992. In respect of the occurrence being unwitnessed the learned counsel submitted .That the venue of the occurrence is situated at a distance of 2/3 furlongs from the house of the deceased and the deceased having allegedly left in the company of the two appellants, it is not possible that Arif Zaman (P.W.8) could have witnessed the occurrence when he was still present in the house of Bashir Ahmed, father of the deceased and was informed by one Chanzeb and had come all the way long from house to the scene of occurrence. It was, in view of the learned counsel, inconceivable, that the appellants would weight till the arrival of the complainant, so as to see the occurrence. 28. It was also argued that according to Murasila the deceased when injured was rushed to Civil Hospital, K.T.S., and having reached there, expired whereas according to the doctor the deceased was brought as injured and his medico-legal report was prepared at 5-10 p.m. The time of death recorded in the column of death in post-mortem report Exh.P.W.6/2 is 6-30 p.m. While the time of report is 6-15 p.m. Meaning thereby that it could not have been recorded as in Exh.P.A./1 which reflects on the absence of complainant Arif Zaman. ' Adding to the point of crime, being unwitnessed, certain portions of the statements of eye- witnesses were referred. It was stated that P.W.8 Arif Zaman has charged one Jameel without giving his parentage in the F.I.R. We were asked to drawn an inference that had the said witness present he would have correctly given the name of Rukhsar and not Jameel. At page 49 of print book towards the end of examination-in-chief this witness has categorically stated that accused
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Rukhsar is also known by the name of Jameel and Irshad. This portion has not been challenged or confronted to, during the cross-examination. Similarly, it was also argued that Arif Zaman has omitted, to give the name of Kamal Khan P.W.9 in the F.I.R. And it would reflect on the absence of either. In that, when we thoroughly examined the cross-examination of P.W. Arif Zaman, he was nowhere confronted with the F.I.R. About the omission of the name of Kamal Khan, Had he been so confronted he might have furnished some explanation. In these circumstances no premium can be taken by the defence for its own faults and omissions. ' We are conscious of the fact, that the case of the prosecution shall stand on its own footings and the prosecution is duty bound to establish its case beyond any shadow of doubt but the law, provides an equal rather better opportunity to the defence to dislodge and challenge the evidence of the prosecution through their cross-examination. 29. Learned counsel for the appellants also styled all the three eye-witnesses to be chance witnesses of the occurrence. Reference was made to reported judgments of 1990 MLD 1077 and 1974 PCr.LJ Note 10 at p.7. No absolute rule can be laid down for disbelieving a chance witness even if one is proved to be so. The Court is to see the ever all effect and the intrinsic worth of the statement of the witness. ' In the instant case the complainant, happens to be the maternal-uncle of the deceased. He has explained his position regarding his presence in the house of Bashir, father of the deceased and then having witnessed to the first episode where the two accused visited the house of the deceased and have taken him away. The other two witnesses namely, Kamal Khan and Noor Nabi Shah have not been challenged on this ground nor questioned as to how, and what for they were present in the vicinity of the scene of occurrence. 30. The presence of P.W. Arif Zaman and Noor Nabi Shah is fortified by the fact, that both are signatories to the inquest report. A reference to page 34 of the printed book shows their name entered by the police with their signatures in the relevant column. 31. The learned counsel also drew our attention to the medical evidence and submitted that the ocular evidence is not supported. He referred to the locale of injuries and stated that in such view of the matter the deceased, who was being held by one appellant namely Rukhsar could not have received injuries both on frontal side and back, because, in his view, in such situation all the stab wounds should have landed on the same part of the body and same side. This argument in no manner is appealing, because the deceased would definitely be struggling hard to avoid stab blows and in that process would not have remained statitonary. 32. It was also argued that no evidence has been led that the accused-appellant Sajid was keeping neither pigeon nor about deceased that he was also in the same habit. It was also submitted that the Suzuki in which the deceased while injured was shifted to the hospital, the driver of said vehicle has not been examined. Objection was also raised that the occurrence having taken place in public place no independent person has come forward to support the case of the prosecution. It was also argued that the conduct of the eye-witnesses that they did not try to rescue the deceased from the clutches of the appellants, demonstrate that they were not present at the scene of occurrence. All these submissions on similar points do not go to the root of the case as these are petty matters and they loss their significance, .In view of direct evidence of disinterested witnesses, though related but having no animosity with the appellants. 33. The test identification parade, through which the three eye-witnesses namely-Arif, Yasir and Noor Nabi Shah have identified accused Rukhsar, was challenged on three grounds. Firstly, that the same was held after 2 months, secondly, that before conducting test identification parade, there were all possibilities of witnesses having seen accused Rukhsar when his remand was being taken and thirdly, on the ground that the role of accused who was put to test of identification parade
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should have been specifically stated during the identification parade by the witnesses. Reliance was placed on 1995 SCMR 412 and 1995 SCMR 127. ' We are in agreement with the learned counsel for the appellants, that the test identification parade has got no evidentiary value in this case on the grounds taken by the learned counsel for the appellants and we may add here, that there was no need for holding such test identification parade when the accused Rukhsar was named in the F.I.R. By alias Jameel. 34. The recovery of clothes vide memo. Exh.P.7/1 consisting of Shalwar P.4 and shirt P.5 belonging to accused Sajid and recovery of knife (Chhuri) Exh.P.3 vide recovery memo. Exh.P.W.4/2 were also objected to by the appellant, on the common ground of being witnessed by people who were related to the deceased and not by the people of locality. Iftikhar Khan P.W.4 has appeared to support the recovery of knife (Chhuri) on the pointation of accused Sajid while he was in handcuffs. This witness is not related to the complainant side. He is resident of Sector IV of K.T.S. Haripur to which Sajid appellant belongs. No dent has been created in his statement from the recovery of blood-stained knife (Chhuri). 35. P.W.7 Sajid Hussain Shah is witness to the same memo. In respect of Chhuri as well as of the blood-stained clothes produced by the accused while in custody, consisting of shirt and Shalwar. This witness is similarly not related to the appellants and is resident of Sector IV of K.T.S. Haripur and when questioned about relationship, he has categorically denied any relationship with the deceased party. A reference in this behalf is made to page 47 of the print book in the last 6th line. ' The learned counsel stated that there was no need for the accused to keep the blood-stained clothes in house. He was of the view, that after the occurrence, even if the accused was involved, he would have either destroyed the blood-stained clothes or would have washed. The blood-stains present on the clothes of the accused, clothes of the deceased, the blood recovered from the spot and the knife (Chhuri) were sent to the Chemical Examiner, whose report is available at page 12 of the print book and is in positive. The accused in this…
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