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Petitioner: ZAHIR HUSSAIN SHAH and others VS Respondent: SHAH NAWAZ KHAN and others
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Basharat Ahmed Sheikh, Muhammad Younus Surakhvi Title: ZAHIR HUSSAIN SHAH and others vs SHAH NAWAZ KHAN and others Case No.: Criminal Appeals Nos.17 and 20 of 1998 Date of Judgment:1999-06-30 Reported As: 2007 P Cr. L J 1757 Result: Order accordingly
JUDGMENT
JUDGMENT ' MUHAMMAD YUNUS SURAKHVI J.--- The above titled both the acquittal appeals are directed against a consolidated judgment passed by the Shariat Court of Azad Jammu and Kashmir on 15- 10-1998, whereby the respondents Shah Nawaz Khan, Rang Baz Khan and Aurangzeb were acquitted of the offences allegedly committed by them under section 5, I.P.L. Read with section 302/34, A.P.C. The cross-appeals filed by the State and complainant .Zahir Hussain Shah were dismissed vide the impugned order of the Shariat Court. 2. Feeling aggrieved by the impugned order of the Shariat Court dated 15-10-1998, the State as well as the complainant Zahir Hussain Shah have filed the present acquittal appeals praying therein that the accused-respondents may be convicted for the commission of the offences alleged against them. ' The brief facts of the prosecution case are that in the report of complainant-appellant Zahir Hussain Shah at Police Station Pallandri it was alleged therein that his father Syed Murtaza Hussain Shah and Shah Nawaz Khan accused-respondent were having a dispute over a passage for cattle. According to the F.I.R. The aforesaid passage was blocked by Shah Nawaz Khan accused- respondent and as such the cattle belonging to the complainant party were obstructed from going to water spring. On 28-7-1993, the complainant party approached Numberdar Bahadar Ali, an ex- member of Local Council of their village, for amicably settling down the dispute between the parties over the said passage. On the move of complainant party Numberdar Bahadar Ali went to spot and asked Shah Nawaz Khan accused-respondent to desist from obstructing the said passage used by the complainant party and to stop blocking the said passage. However, the accused-respondent Shah Nawaz Khan did not abide by the settlement arrived at, whereupon the
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complainant-appellant, herein, himself removed the stones from the said passage by which the same had been obstructed. On 29-7-1993, the complainant took his cattle to water spring and at about 2 p.m. Shah Nawaz Khan along with his sons Aurangzeb and Rang Baz Khan again obstructed the said passage. The accused respondents were armed with .12 bore guns and .32 bore pistol. The complainant-appellant forbade the accused from blocking the way whereupon the accused-respondents initiated attack on the complainant-appellant. The complainant raised hue and cry whereupon his father Murtaza Hussain Shah also arrived at the scene of occurrence. Murtaza Hussain Shah, the father of the complainant, asked Shah Nawaz Khan and other accused to refrain from creating any sort of trouble and to avoid any sort of violence. Meanwhile Shah Nawaz Khan who was already armed with .32 bore pistol with an intention to kill fired a pistol shot at Murtaza Hussain Shat the father of complainant-appellant which hit on the lower part of Murtaza Shah. After receiving the injury Murtaza Hussain Shah fell down on he ground. He was taken to Pallandri Hospital but he was still in the way to hospital that he succumbed to the said injury and passed away. The incident according to the prosecution was witnessed by Azrar Hussain Shah son of Manzoor Hussain Shah and Hassan Shah son of Farman Ali Shah, besides the complainant. 4. A written report, according to prosecution, was submitted by the complainant-appellant to S.H.O. Police Station Pallandri at Barral Bazar where he was on an official duty. The S.H.O. After receiving this report made an endorsement on the back of the application and sent it to police station through constable Muhammad Azad No,1339 for registration of the case. On this report the case was registered at Police Station Pallandri by the Officer Record Incharge of police station against the accused-respondents for allegedly committing offences under section 5, I.P.L. Read with section 302/34, Penal Code. 5. The S.H.O. After sending the application submitted by the complainant-appellant to police station proceeded to the place of occurrence situated, in village Barral Khambah Pairian and thus initiated investigation. The accused persons were apprehended during the investigation and after its completion the accused were forwarded to District Court of Criminal Jurisdiction, Pallandri for facing their trial. The accused-respondents in their statements under section 2,42, Cr.P.C. Denied the allegations 'levelled against them. 6. The prosecution in order to prove its case against accused examined Zahir Hussain Shah, Azrar Hussain Shah, Hassan Shah (as eye-witnesses of the occurrence), Nazim Hussain Shah, Zulfiqar Hussain Shah, Nisar Shah, Tanweer Shah, Asghar Ali Shah, Dr. Rashid Yaqub, Bahadar Ali Khan, Muhammad Raees, Amin-ul-Haq, Raja Shamim Akhtar Khan, D.S.P., Muhammad Kabir Khan, S.H.O. Incharge Police Station, Sajid Imran Khan, A.S.-I., and Sajjad Hussain Shah. The accused in their statements under section 342, Cr.P.C. Denied the allegations and desired to produce the defence evidence. In their defence the accused 'examined Muhammad Nazir, Muhammad Sharif Khan, Muhammad Haroon and Muhammad Ilyas as their witnesses. 7. The trial court after the conclusion of trial having found the accused-respondent Shah Nawaz Khan guilty of offence of murder awarded him the sentence of 25 years' rigorous imprisonment with a fine of Rs,50,000 and in case of non-payment of fine to undergo a further simple imprisonment of 6 months and acquitted Rang Baz Khan accused by giving him the benefit of doubt vide its judgment, dated 31-3-1996. However, Aurangzeb accused absconded after the conclusion of trial from the trial Court before hearing the arguments and pronouncing the judgment. He was, therefore, proceeded under section 512, Cr.P.C. 8. The aforesaid judgment of the trial Court was challenged "by convict Shah Nawaz Khan respondent and complainant-appellant Zahir Hussain Shah and State also went in separate appeals before the Shariat Court. The Shariat Court vide its order impugned dated 15-10-1998, acquitted the accused-respondent Shah Nawaz Khan by accepting his appeal and cross-appeals
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filed by the State and the complainant-appellant were dismissed. The absconding accused Aurangzeb who had been proceeded under section 512, Cr.P.C. Was also acquitted by the Shariat Court on appraisal of evidence adduced by the prosecution. Hence these acquittal appeals for conviction of accused-respondents, one by the complainant-appellant, and the other by the State. 9. Sardar Abdul Hameed Khan, the learned counsel for the complainant-appellant, vehemently contended that the Shariat Court fell in grave error by acquitting the accused-respondents, as according to him, the prosecution case stood proved against the accused-respondents beyond any reasonable shadow of doubt. The learned counsel submitted that the Shariat .Court on the basis of surmises and conjectures reached the conclusion that the prosecution case suffers from material illegalities and infirmities. The learned counsel contended that the Shariat Court failed to take note of the fact that the prosecution case is supported by ocular version of eye-witnesses whose presence its even admitted by the accused-respondents. The learned counsel has argued that the F.I.R. In the case was lodged promptly and the eye-witnesses were named in the F.I.R. The evidence of eye-witnesses suffers from no material contradictions whatsoever. All the eye- witnesses, according to the learned counsel for the appellant-complainant, are unanimous on the point that the deceased was killed by a revolver shot fired by Shah Nawaz Khan accused- respondent which hit the lower abdominal part of the deceased who in consequence of said injury fell down and while taking him to Pallandri Hospital he succumbed to the injury. The learned counsel submitted that the time and place of occurrence, as alleged by the prosecution, are even admitted by the defence; however, from the cross-examination by the defence on the eye- witnesses it appears that the manner of incident is disputed by the prosecution. The learned counsel contended that in their statements under section 242, Cr.P.C. The accused-respondents never raised a counter-version similarly in their statements under section 342, Cr.P.C. The accused- respondents also failed to raise a specific counter-version but the way the eye-witnesses were cross-examined by the defence it transpires that the case of defence seems to be that the accused Shah Nawaz Khan did not murder the deceased but the fact of the matter is that P.Ws. Zahir Hussain Shah and Azrar Hussain Shah attacked the accused party whereupon the deceased intervened and tried to stop them from chasing the accused party. P.W. Azrar Hussain Shah who was armed with .30 bore pistol opened attack on accused Shah Nawaz Khan and both Azrar Hussain Shah and accused Shah Nawaz Khan scuffled with each other and during the course of scuffling the pistol of Azrar Hussain Shah went off and thus, the deceased sustained a bullet injury which ultimately resulted into his death. The learned counsel contended that if both the proposition and defence versions are taken into a juxta-position the version taken by the defence seems to an afterthought and concocted which does not appeal to a common mind. The prosecution story as alleged by the prosecution not only stands established by the ocular version of the eye-witnesses who have no animosity or grudge to falsely implicate the accused-respondents but is also supported by the medical evidence as well as the evidence of recoveries on the pointation of accused-respondents. The prosecution story also stands corroborated by the blood-stained clay and stone recovered from the place of occurrence and clothes of deceased wearing at the time of occurrence. It was further contended 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 motive, according to the learned counsel for the appellant, is also a corroborative piece of evidence lending support to the case of the prosecution. 10. Ch. Muhammad Azam Khan,, another learned counsel for the complainant and Ch. Muhammad Mushtaq, the learned Additional Advocate-General appearing on behalf of the State, fully supported by the contentions raised by Sardar Abdul Hameed Khan, the learned counsel for the complainant.
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11. Controverting the arguments advanced by the learned counsel for the appellant, Raja Muhammad Hanif Khan, the learned counsel for the respondents, argued that the prosecution failed to establish 'its case against the accused-respondents. According to the learned counsel the case was registered on the basis of a belated F.I.R. Which casts a serious doubt on the prosecution case. He further contended that the oral testimony of the eye-witnesses was not corroborated by the medical evidence. The learned counsel maintained that the recoveries effected from the accused-respondents were also doubtful and when the evidence of both the prosecution and the defence is appraised in minute details it reflects that a. False case was registered against accused Shah Nawaz Khan and his two sons Aurangzeb and Rang Baz Khan. The learned counsel further argued that the eye-witnesses were interested and interrelated to the deceased and, were inimical to the accused party. The learned counsel also argued that some material prosecution witnesses were given up by the prosecution and this fact also adversely reflects on the prosecution, story. The reports of Chemical Examiner and Arms Expert were not tendered in evidence. In absence of the aforesaid evidence, the prosecution case suffered from serious illegalities and infirmities. Thus, the Shariat Court committed no error in acquitting the accused-respondents. The learned counsel also argued that insofar as the prosecution case against accused-respondents Aurangzeb and Rang Baz Khan is concerned, the 'prosecution miserably failed to prove its case against them beyond any reasonable shadow of doubt. The learned counsel emphasized that the evidence of eye- witnesses was so much interested that they attributed a definite role to these accused- respondents by alleging that they also inflicted injuries on the person of deceased by using the "butts" of their rifles, but the, same does not find support from the medico-legal evidence. The learned counsel also submitted that on purgation of eye-witnesses. Hassan Shah was found to be a witness worthy of no credence as he was not found "Adil". The other two eye-witnesses were found to be "Adil" but since they are interested witnesses, therefore, their evidence could not be relied upon in absence of a strong corroborative evidence which is missing in the instant case. 12. After hearing the respective contentions of the learned counsel for the parties and perusing the record, in the first instance we have to take into consideration the respective versions of the prosecution as well as that of the defence. The prosecution case precisely is that on the day of occurrence the accused party assaulted the complainant party after being armed with .12 bore guns and .32 bore pistol. The deceased who was forbidding the accused to avoid any type of dispute stood face to face at a distance of 1/3 Karm (less than two feet) from accused Shah Nawaz Khan and was hit by a revolver bullet fired by the aforesaid accused. The victim and the assailant did not scuffle with each other, whereas the defence version is that the deceased was not murdered by the accused Shah Nawaz Khan but on the other hand P.Ws. Azrar Hussain Shah and Zahir Hussain Shah attacked the accused party upon which deceased intervened to stop them from going towards the accused party. The complainant on the intervention of his father stopped, however, Azrar Hussain Shah, who was armed with .30 bore pistol attacked the accused Shah Nawaz Khan but deceased Murtaza Hussain Shah intervened in order to avoid any sort of mishap and during the course of scuffling the .30 bore pistol of Azrar Hussain Shah went off accidentally and thus, the deceased sustained bullet injury which ultimately resulted into his death. This version becomes apparent from the suggestions made to the eye-witnesses during the cross- examination from the defence side. So when both the versions are taken into a juxta-position and appreciated in its true perspective, the version taken by the defence seems to be improbable, concocted and an afterthought for the reason that in their B statements under section 242, Cr.P.C. The accused never raised a counter-version. Similarly in their statements under section 342, Cr.P.C. The accused also failed to take specific counter-version. At the same time we are also conscious of the fact that in absence of their raising a counter-version in statements under sections 242 and 342, Cr.P.C. The accused are not debarred from taking any counter-version at the time of cross-
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examining the prosecution witnesses. If a defence plea is pulpable from the prosecution story itself the accused cannot be deprived of taking C the benefit of the said version. Similarly if a defence version is taken and the same is not proved the prosecution is not absolved of its responsibility to prove the case against the accused persons beyond any reasonable shadow of doubt. It is a cardinal principle of criminal jurisprudence that the prosecution in order to prove its case has to stand on its own legs and is burdened with the responsibility to prove the ease against the accused persons. 13. From the trend of cross-examination made by the defence on the eye-witntsses, their presence and presence of accused Shah Nawaz Khan on the place of occurrence stands admitted by the defence. Similarly, the place of occurrence is also not disputed by the defence. The recovery of blood-stained clay and a stone from the place of occurrence also suggests that in fact the occurrence took place on the same place which is alleged by the prosecution. Now the only question that remains to be resolved is as to whether the version taken by the defence is plausible and reasonable or that of the prosecution. The appraisal of evidence of eyewitnesses who stood the test of cross-examination establishes the fact that the occurrence took place in the manner as alleged by the prosecution and not as suggested by the defence. 14. Another factor which has taken us to the conclusion that the prosecution version seems to be more probable and plausible is that 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 cross-examining the prosecution witnesses. The defence has taken a definite stand in the cross-examination that instead of .32 bore revolver's shot the deceased was murdered by a shot of .30 bore pistol which was in the hand of P.W. Azrar Hussain Shah but this story having not been substantiated, either by the defence evidence, or being pulpable from the prosecution story, was rightly disbelieved by the trial Court on the basis of sound and cogent reasons. 15. It is also the case of the defence that the .32 bore revolver of accused Shah Nawaz Khan was replaced by the police as the same was not in a working order and in its place .30 bore pistol belonging to P.W. Azrar Hussain Shah was shown to have been taken into possession by the Investigating Agency vide the recovery memo. This assertion of the defence does not find support from any evidence either led by the prosecution or the defence. The defence also challenged the recovery of crime weapon on the ground that the revolver recovered from the accused was bearing two numbers but at the time of recovery the recovery memo. reveals that it was having only one number. It is indeed correct that the revolver recovered at the instance of accused Shah Nawaz Khan has two numbers but the fact that it has two numbers does not strengthen the case of the defence nor there seems to be any fun in planting the said weapon of offence. It appears that at the time of recovery the number of revolver which was on a conspicuous place was entered in the recovery memo. By the police and the second number which one cannot find at a first glance was not mentioned by the Investigating Agency. The defence case also seems to be that in fact the F.I.R. Was lodged by one Zakir Hussain Shah in which it was disclosed that the deceased was murdered at the hands of Azrar Hussain Shah and the F.I.R. Lodged by the complainant was a belated one and for this very reason it was lodged at police station at about 8 p.m. The above assertion of the defence stands negated by the evidence of S.H.O. And the second Officer Incharge of police station. The S.H.O. Made a categorical statement that in fact F.I.R. Was presented to him at Barral Bazar and on the back of application, presented by the complainant, he made an endorsement and sent it through constable Muhammad Azad towards police station which was at a distance of 12 miles from Barral Bazaar. The said constable travelled the journey on his foot and for this very reason the F.I.R. Was lodged at police station at 8 p.m. The alleged delay in the lodgment of F.I.R. Has been sufficiently explained by the prosecution by the evidence of S.H.O. Who initially made an endorsement on the application presented by the complainant-appellant and
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then sent the same through a constable Muhammad Azad to police station. This fact is further supported by the evidence of second officer Incharge of police station. From the police record it also transpired that the Investigating Agency in performance of its official functions lodged the F.I.R. At police station at 8 p.m. Therefore, the explanation furnished by the prosecution with regard to the delay in the lodgment of F.I.R. Being satisfactory has been relied upon by the trial Court and there seems to be no earthly reason to disagree with the opinion expressed by the trial Court. The Shariat Court, in our view, committed an error in dislodging the version of the prosecution on the basis of alleged belated F.I.R. 16. A note may also be taken of the fact that Zakir Hussain Shah, as claimed by the defence, who allegedly reported the incident of murder in the earliest opportunity to the police that the deceased Murtaza Hussain Shah had been murdered at the hands of Azrar Hussain Shah was not examined by the defence as its witness. This obviously leads to the presumption that he did not support the version of the defence, if he had appeared as a defence witness. Another witness from the side of defence, Muhammad Nazir, was produced who has deposed that in his presexe S.H.O. Kabir and Zakir. Hussain Shah did not talk to each other and in his presence Zakir Hussain Shah did not lodge the report. From the critical analysis of the prosecution as well as the defence evidence, it becomes abundantly clear that in fact Zakir Hussain Shah lodged no F.I.R. At police station with regard to the occurrence. The mere fact that Bahadar Ali and Tanweer Hussain Shah in their statements deposed that on the day of occurrence police reached on the spot at such and such time did not contradict the record of police. The statements of S.H.O. Kabir Khan and A.S.-I. Sajid Imran, and Zahir Hussain Shah when read together, the logical conclusion seems to be that the written report was presented at Barral Bazar before S.H.O. By Zahir Hussain Shah who sent the same to police station after making an endorsement on the said written application. As the Police Officer by making an endorsement and sending the same to police station performed his functions in his official routine, therefore, the official act performed in normal course of events has the presumption of truth. In our view the delay in lodging the F.I.R. (which is not found in the instant case), assumes importance when the identity of the accused persons is doubtful and is not established beyond any reasonable doubt. In the instant case the identity of the accused was never in dispute. Therefore, the delay in lodgment of F.I.R. Cannot be H applied like a rule of limitation as is applied in civil cases. Our aforesaid view is fortified by the reported case titled Bashir Ahmad v. The State 1980 PCr.LJ 25.1 and Khalil Ahmed and others v. The State 1986 PCr.LJ 2728. Therefore, we have no doubt in our mind that in fact Zahir Hussain Shah lodged the F.I.R., regarding the occurrence at Barral Bazar which was subsequently sent by the S.H.O. To police station on which a formal Case No,43 of 1993 was registered at 8 p.m. At Police Station Pallandri. 17. The Shariat Court has not relied upon the testimony of Hassan Shah, the eye-witness, who was not found "Adil" in purgation but we are of the view that his evidence can be believed in a case falling outside the ambit of "Qisas", particularly so when his presence at the place of I occurrence is admitted by the prosecution itself. However, a great caution is to be used in appraising his evidence. We have decided to believe those portions of his statement which ring true and to, discard those portions which do not inspire any confidence. 18. The learned counsel for the defence seriously criticized the recovery of crime weapon at the instance of accused Shah Nawaz Khan in presence of Hassan Shah and Asghar Ali Shah, the witnesses for recovery of the crime weapon. It is an admitted fact that the house of Hassan Shah is located near the place of occurrence. Hassan Shah has also no relation with the deceased, whereas the other marginal witness of recovery memo. Is Asghar Ali Shah, who is brother-in-law of deceased and his house is also located at a distance of one and a half miles from the place of occurrence. During the recovery of weapon of offence revolver P.1, one crime-empty bullet and four live rounds of bullets were also recovered at the instance of accused Shah Nawaz Khan from his
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house along with the licence of the said revolver belonging to the accused. The case of defence seems to be that the aforesaid weapons were replaced by the police. In support of their version Muhammad Sharif and Muhammad Ilyas were produced in defence. The trial Court rejected the evidence of Muhammad Sharif and Muhammad Ilyas on the ground that the crime weapons were not shown to Muhammad Sharif and Muhammad Ilyas during their statements in the Court. Furthermore the above defence witnesses are so much partisan and interested that they tiled their affidavits in favour of accused regarding their innocence and Muhammad Sharif, the defence witness, even went to the extent…
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