Full Judgment Text & Judicial Ruling

2023 P Cr. L J Note 17 [Peshawar (Bannu Bench)] Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ JAVED KHAN---Appellant Versus The STATE and 2 others---Respondents Criminal Appeal No. 171-B of 2019, decided on 21st September, 2021. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of one hour in lodging FIR---Scope---Accused were charged that they, in furtherance of their common intention committed murder of the brother of the complainant by firing---Motive for the offence alleged by the complainant was previous blood feud---Record showed that occurrence took place at about 04.00 p.m.---Incident was reported by the complainant to the local police, who soon after the incident shifted the dead-body of the deceased to Hospital, where the police of the local Police Station were already present---Matter was reported at 05.00 p.m. to Police Official, who after drafting Murasila, prepared injury sheet and inquest report and thereafter, sent the dead-body to the mortuary for postmortem examination---Though the dead-body was examined by the doctor, yet the time of examination and arrival of the dead-body did not find mention in the postmortem report and it was later on disclosed by the doctor that he examined the dead-body at 06.30 p.m.---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witness---Scope---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Complainant stated that on the day of incident he was informed by the deceased regarding the interest of a party in their shop to purchase and in order to negotiate the price, he along with eye-witness went to the place where his shop was situated---Complainant further stated that party who was interested in purchase of their shop was hailing from Waziristan---Complainant further stated that the matter was negotiated, but the bargain could not be stuck between the parties---Record told that the only and only purpose of the complainant to visit his brother was the negotiation regarding the sale of their shop, but the complainant admitted that it was not his routine to visit---Site-plan was prepared at the instance of the complainant---Record told that the deceased was few paces ahead while the complainant a few paces behind and that it was at 04.00 p.m., when the accused attracted to the spot and fired at the deceased---Deceased was the youngest, whereas the complainant was the eldest, and that it was the complainant, who was charged for the murder of the brother of absconding co-accused---Complainant was to tell that when it was broad day light and that when he was chasing the deceased with a distance of few yards, then why the accused did not kill the complainant and that why the deceased fell a prey---Complainant being the real enemy would have been the prime target, but the lack of interest in killing the complainant indicated his absence from the spot at the time of incident---Had complainant been present he would have been the prime target---Presence of the complainant was further doubted from the fact that the report was made at 05:00 p.m., in the same hospital where the postmortem was conducted, but the dead-body was examined at 06.30 p.m.---When report had already been made and the injury sheet along with inquest report were prepared, then why the postmortem examination was postponed till 06.30 p.m.---Delay caused in examining the dead-body when read in juxtaposition with non-mentioning of time of arrival and examination of dead-body in the postmortem report belied the stance of the complainant---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed. Nazir and others v. The State PLD 1962 SC 269 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Site plan---Scope---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Site plan showed that deceased was shown at down the metalled road and the Investigating Officer recovered blood stained earth from there---If the deceased was riding a motorcycle, then instead of driving on the metalled road, he would have not selected unpaved path to drive on---Situation helped in making an opinion that the deceased was on foot---Investigating Officer stated that on arrival to the spot during spot inspection, he took into possession blood-stained earth, three empties of .30 bore along with a motorcycle belonging to the deceased---In the same breath Investigating Officer stated that he revisited the spot on the next day of the incident and photography was made---Interesting to note that while making snap shots on the following day of occurrence, the motorcycle was shown standing there with the same registration number, left by the deceased---Prosecution was to tell that when Investigating Officer had already taken into possession the motorcycle on the day of incident, then instead of having been parked in the concerned Police Station, who brought it to the spot and for what purpose---Said fact indicated that at the time and on the day of incident the deceased was not riding on a motorcycle---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of complainant---Scope---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Record showed that soon after reporting the matter, the complainant left the Police Station for the spot and he reached to the spot at 06.35 p.m., the time when the dead body was still to be examined---Conduct of the witness (complainant) was unnatural, being real brothers, their first priority would have been to attend the dead-body at the time of postmortem examination---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from accused---Scope---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Accused was allegedly arrested by the local police, from his possession a .30 bore pistol was recovered and a separate FIR under section 15 Arms Act was registered---Concerned Police Official stated that he arrested the accused and prepared his card of arrest---Said witness categorically admitted that he did not mention the recovered pistol along with ammunition in the card of arrest---Said witness was further examined as to whether after arrest of the accused the information was conveyed to the Police Station, he replied in affirmative, it was on the following day that the Investigating Officer, who was investigating the murder case, came to the Police Station---At that particular aspect of the case, the Investigating Officer was examined, who admitted that on the day of arrest he visited the Police Station, but it was on the following day when the accused was formally arrested in the case, when the accused was brought to the District Courts---When the two statements were read in juxtaposition, it smelled foul, despite the fact the accused was arrested and a .30 bore pistol was recovered from his possession, the Investigating Officer did not take interest to rush to the Police Station there and then and to arrest the accused, who was badly needed in the case---Moharrir of the Police Station did not inform the Police Station and even the weapon of offence was not handed over on the day when the accused was arrested---Moharrir of the Police Station stated that a .30 bore pistol with lit and spare magazine along with 13 live rounds were handed over to the Investigating Officer of the present case, which were lying in the Malkhana of Police Station, who sealed the same and recorded his statement under S. 161, Cr.P.C.---Said witness was cross-examined, who admitted that no application was submitted for sending the case property i.e. .30 bore pistol to the Arms Expert---Said witness further admitted that the pistol was handed over to him in unsealed condition and that the entries were made in the relevant Register of the case property of the Police Station---Witness went on to say that he did not produce copy of the said Register to the Investigating Officer of the case---Moharrir candidly conceded that he did not give any documentary proof about the safe custody of the recovered pistol---Circumstances did tell that neither the accused was arrested in the manner nor the pistol was taken into possession, rather it was a conscious attempt on the part of the prosecution to generate evidence to connect the accused with commission of the offence---When the prosecution failed to prove recovery of crime weapon and its safe custody, then in that eventuality said piece of evidence could not be taken into consideration against the accused---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed. Jehangir v. Nazar Farid and another 2002 SCMR 1986 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account---Conflict---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Record showed that the medical evidence was in conflict with the ocular account---Medical evidence was confirmatory in nature and equally true that in presence of the direct eye-witness account, it had a little significance but, here it spoke to the contrary---Witnesses failed to prove their presence on the spot and their statements were not trustworthy being chance witnesses, so it was the medical evidence that steered the wheel and the conflict between the two had spoiled the prosecution case to a greater extent---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed. Amin Ali and another v. The State 2011 SCMR 323 and Mansab Ali v. The State 2019 SCMR 1306 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant by firing---Motive was stated to be the blood-feud between the parties, but the Investigating Officer failed to collect either documentary or oral evidence in that respect and even the complainant failed to substantiate the same---Complainant himself was uncertain regarding his enmities, as admittedly his family was involved in several blood feud with different people and to fix the responsibility on a single side was next to impossible, that too when complainant was spared as he should have been the prime target---Proposition that the prosecution was not under obligation to prove the motive and even its weakness or absence will not damage the prosecution case, but it could not ignore that once the prosecution alleged motive, then it is under obligation to prove the same, if it does not, then it is only and only the prosecution to suffer---Complainant failed to connect the accused with the alleged motive---Circumstances established that the prosecution failed to bring home guilt against the accused---Appeal against conviction was allowed. Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel. Muhammad Rashid Khan Dirma Khel for Appellant. Saif-ur-Rehman Khattak, Additional A.G. for the State. Iftikhar Durrani for Respondents. Date of hearing: 21st September, 2021. JUDGMENT SAHIBZADA ASADULLAH, J.---The convict-appellant Javed Khan has called in question the judgment dated 29.5.2019, passed by learned Additional Sessions Judge-II, Bannu, whereby the appellant, charged in case FIR No. 130 dated 02.04.2017, registered at Police Station Mandan, District Bannu, has been convicted under sections 302(b)/34, P.P.C and sentenced to life imprisonment with Rs.6,00,000/-, (six lac) as compensation to the legal heirs of deceased under section 544-A, Cr.P.C, or in default thereof, to further undergo for six months' SI. Benefit under section 382-B, Cr.P.C has also been extended to the convict. 2. The complainant Adar Khan being aggrieved from the impugned judgment filed Cr.R. No. 43-B/2019, for enhancement of sentence of appellant. 3. As both, the appeal and revision petition are the outcome of one and the same judgment, are going to be decided through this common judgment. 4. Brief facts of the case, as divulged from the first information report Ex: PW 2/l, are that on 02.04.2017, at 17.00 hours, the complainant Adar Khan along with deadbody of his brother Imran Khan, reported the matter at Civil Hospital, Bannu, to the effect that he along with his brother Musharaf Khan were riding on one motorcycle, whereas his brother Imran Khan, on the other, were proceeding from Bannu Bazaar to their village. Imran Khan was ahead of them, when they reached near the road leading to Dandy Kala on Miran Road, at about 16:00 hours, all of a sudden accused Javed Khan, Amir Khan and Zahid Khan, armed with pistols emerged and started firing at Imran Khan, as a result whereof, he was hit, sustained injuries and fell down from the motorcycle. Accused after commission of the offence decamped from the spot. The injured Imran Khan succumbed to his injuries at the spot. Motive for the offence alleged by the complainant was previous blood feud. The report of the complainant was reduced in shape of Murasila by the scribe Raqiaz Khan ASI and sent to the Police Station through constable Amjad Ali No.5712, while he prepared injury sheet and inquest report of the deceased and sent the dead-body under the escort of constable Ghufran No.5751 to the doctor for postmortem examination, hence, the FIR (ibid). On 04.4.2017 accused was arrested by the local police, having in his possession a 0.30 bore pistol along with a fitted and a spare magazine. He was also booked for the offence under section 15, Arms Act in case FIR No. 254, dated 04.04.2017, Police Station Cantt., Bannu. 5. After completion of investigation, complete challan was submitted before the learned trial Court, where at the commencement of trial, prosecution produced and examined as many as twelve (12) witnesses, whereafter, statement of accused was recorded under section 342, Cr.P.C, wherein he professed his innocence and false implication, however, neither he wished to be examined on oath as provided under section 340(2), Cr.P.C, nor opted to produce defence evidence. Learned trial Court after hearing arguments from both the sides, vide impugned judgment dated 29.05.2019 convicted the appellant and sentenced him, as mentioned above. Hence, the instant criminal appeal as well as connected criminal revision petition. 6. We have heard arguments of learned counsel for the appellant and learned Additional A.G representing the State assisted by learned counsel for complainant and gone through the record with their valuable assistance. 7. The unfortunate incident claimed the life of one Imran Khan, while travelling in the company of the complainant and another. The incident occurred on 02.04.2017 at 16.00 hours, whereas the matter was reported to the local police in the Civil Hospital, Bannu at 1700 hours. It was the complainant, who while reporting the maffer charged the appellant along with the absconding co-accused for murder of the deceased. The appellant was arrested on 04.4.2017, by the local police of Police Station Cantt. and from his personal possession a .30 bore pistol was taken into possession and an FIR under the relevant section of law was registered. The appellant was later on handed over to the Investigating Officer of Police Station Mandan, who was investigating the case against the accused/appellant and during spot pointation, when the appellant allegedly disclosed the weapon of offence to be in possession of the police of Police Station Cantt., he visited Police Station Cantt. and as such, a .30 bore pistol was taken into possession; and in that respect, recovery memo was prepared. The accused/appellant after his arrest, faced trial and ultimately the learned trial Court convicted the appellant vide impugned judgment. The learned trial Court was pleased to assess the matter from different angles and after applying its judicial mind to the collected evidence on file, passed the impugned judgment. Though the impugned judgment is comprehensive in all respects, yet this being the Court of appeal, we are under the obligation to assess and reassess the already appreciated evidence, to know as to whether the learned trial Court was justified in holding the appellant guilty and that, as to whether the reasoning advanced by the learned trial Court suits the situation; that as to whether the prosecution succeeded in bringing home guilt against the appellant, that too, by producing convincing and confidence inspiring evidence. We are conscious of the fact that both the sides involved in the episode are reaping the harvest of the miseries created by them or created for them, and in order to redress the grievance of either side, they are faced with, this Court is under the bounded duty to approach the core issue by adopting the parameters laid down for the purpose, so to avoid miscarriage of justice. True, that the like incidents bring the society at halt, but the outright dejection will further deteriorate the prevailing situation, as there is always a ray of hope and these are the Courts of law to discover the same, to bring the parties to justice as, every dark cloud has a silver lining. 8. The incident was reported by the complainant to the local police, who soon after the incident shifted the deadbody of the deceased to Civil Hospital, Bannu, where the police of the local Police Station were already present. The matter was reported at 17:00 hours, to one Raqiaz (PW-4), who after drafting Murasila, prepared injury sheet and inquest report, and thereafter, sent the dead-body to the mortuary for postmortem examination. Though the dead-body was examined by the doctor, yet the time of examination and arrival of the dead-body does not find mention in the postmortem report and it was later on disclosed by the doctor that he examined the dead-body at 06.30 p.m. 9. The moot question for determination for this Court is as to whether the witnesses, more particularly, the complainant was present at the time of incident, and as to whether the incident occurred in the mode, manner and at the stated time. The complainant was examined as PW-8, who stated that on the day of incident he was informed by the deceased regarding the interest of a party in their shop, to purchase and in order to negotiate the price, he along with eye-witness went to the place where his shop was situated. The complainant further stated that party who was interested in purchase of their shop was Dawar, hailing from Waziristan. He further stated that the matter was negotiated, but the bargain could not be stuck between the parties. The record tells that the only and only purpose of the complainant to visit his brother, at Bannu, was the negotiation regarding the sale of their shop, but the complainant admitted that it was not his routine to visit, we deem it appropriate to appreciate this particular aspect of the case in light of the collected evidence, so to understand that presence of the complainant with the deceased at the stated time was a natural phenomenon. We are to look for independent evidence in this respect, as we are conscious of the fact that, if complainant fails to convince us in that respect, then in that eventuality, his status will transform to that of a chance witness. The site-plan was prepared at the instance of the complainant, where the accused are shown at points Nos. 4, 5 and 6, with their motorcycle left behind at point-D, whereas the deceased at point-I, and his motorcycle at point-A. The complainant and eye-witness are shown at points 2 and 3 with their motorcycle at point-B. The record tells that the deceased was few paces ahead while the complainant a few paces behind and that it was at 16.00 hours, when the accused attracted to the spot and fired at the deceased. It is pertinent to mention that the deceased was the youngest, whereas the complainant was the eldest, and that it was the complainant, who was charged for the murder of the brother of absconding co-accused Zahid. The complainant is to tell that when it was broad day light and that when he was chasing the deceased with a distance of few yards, then why the accused did not kill the complainant and that why the deceased fell a prey. The complainant being the real enemy would have been the prime target, but the lack of interest in killing the complainant indicates his absence from the spot at the time of incident. Had he been present he would have been the prime target. The deceased was shown at point-l, down the metalled road i.e. on Kacha Gola, and the Investigating Officer recovered blood stained earth from there. If the deceased was riding a motorcycle, then instead of driving on the metalled road, he would have not selected unpaved path to drive on. The situation helps in making an opinion that the deceased was on foot. It is interesting to note that the Investigating Officer was examined as PW-10, who stated that on arrival to the spot during spot inspection, he took into possession blood-stained earth, three empties of .30 bore along with a motorcycle belonging to the deceased, in the same breath he stated that he revisited the spot on the next day of the incident and photography was made. It is interesting to note that while making snap shots on the following day of occurrence, the motorcycle is shown standing there with the same registration number, left by the deceased. The learned counsel for the appellant, during trial, exhibited the same as PW-10/DX-1. The prosecution is to tell that when Investigating Officer had already taken into possession the motorcycle on the day of incident, then instead of having been parked in the concerned Police Station, who brought it to the spot and for what purpose. It indicates that at the time and on the day of incident the deceased was not riding on a motorcycle. The presence of the complainant, is further doubted from the fact that the report was made at 17:00 hours, in the same hospital where the postmortem was conducted, but the dead-body was examined at 06.30 p.m, surprisingly, when report had already been made and the injury sheet along with inquest report were prepared, then why the postmortem examination was postponed till 06.30 p.m. The delay caused in examining the dead-body when read in juxtaposition with non-mentioning of time of arrival and examination of dead-body in the postmortem report belies the stance of the complainant. In case titled 'Nazir and others v. The State' (PLD 1962 SC 269), it was held that:- "By what we said in Niaz v. The State we were not laying down any rule of law though we were explaining for the guidance of Courts our own approach to the problem that generally confronts the Courts in cases of crime by violence. It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts. But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration". 10. Another intriguing aspect of the case is that neither the complainant, nor the eye-witness identified the dead-body before the police at the time of report and before the doctor at the time of postmortem examination. The witnesses cited in the column of identification, both in the inquest and postmortem report belong to the village of the deceased and it…

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