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Petitioner: ASAL MUHAMMAD And Other VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Shakirullah Jan, Muhammad Khiyar Khan Title: ASAL MUHAMMAD And Other vs THE STATE Case No.: Criminal Appeal No. 74 of 1992 Date of Judgment:1994-05-17 Reported As: PLD 1994 Peshawar 214 Result: Appeal accepted
JUDGMENT
JUDGMENT MIAN SHAKIRULLAH JAN, J: --The appellants Asal Muhammad aged 55 years, Rashid Gul aged 31 years (brother inter se) and Khan Muhammad aged 65 years `Tarboor' of the first two appellants, challenged their conviction and sentences awarded to them by Sessions Judge, Karak vide his judgment and order dated 18-5-1992, which are life imprisonment with a fine of Rs. 10,000 each and a compensation. Under section 544-A, Cr.P.C. Of Rs.10,000 each for payment to the legal heirs of the deceased Gul Khana Mir by holding them guilty under section 302/34, P.P.C. However, they were acquitted from the charge under section 404/34, P.P.C. And the benefit of section 382-B, Cr.P.C. Was also extended to them. The complainant party also felt aggrieved itself of the lesser punishment and filed revision petition for the enhancement of the sentence to the normal penalty of death and also for the enhancement of fine and compensation which both are proposed to be disposed of by this Single Judgment as both has arisen out of the one and same judgment and the same F.I.R. 2. The prosecution story as revealed from the F.I.R. Which was lodged by Rasool Muhammad, the brother of the deceased, by taking the dead body of the deceased, on 15-3-1988 at 15-30 hours, in the Police Station Takht Nasrati, which is at a d1stance of about 8/9 kms from the spot, with regard to the occurrence which has taken place at `Peshi Qaza Wela', is that on the day of occurrence at `Peshi Qaza Wela' the complainant, along with his son Abdul Aziz, was present outside of his house. In the meantime his brother Gul Khana Mir, the deceased, was proceeding to his (compalinant's) house from his (deceased's) house, the appellants mentioned above who were duly armed with `Topaks' were sitting in a `Morcha' and on coming of the deceased close to them, Rashid Gul appellant called out to shoot Gul Khana Mir, on which Asal Muhammad fired the first shot at him with which the deceased was hit, the second shot was fired by Khan Muhammad appellant, with
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which the deceased was also hit, who sustained injuries and fell down. The third shot was fired at him by Rashid Gul appellant with which he was also hit and died on the spot. All the three appellants then came to the deceased and took away his licensed rifle along with bandolier. The motive was stated to be the land dispute over a `Shamilat'. Abdul Aziz, the son of the complainant, was cited as an eye-witness. 3. On the same day accused Asal Muhammad was arrested and according to the statement of the I.O. He came to the police station and lodged a report which was produced during the trial as Exh.P.W.8/1. According to this report which was registered vide F.I.R. No. 27 dated 15-3-1988 under sections 307/34, P.P.C. Showing the place of occurrence as `Yak Ghundi', as also mentioned in the first F.I.R. Which is F.I.R. No.26 lodged by Rasool Muhammgd, the complainant, with the same time of occurrence i.e. `Peshi Qaza Wela'. According to ,this F.I.R. The appellant Asal Muhammad who was the lodger of the F.I.R. Was present in the Middle School Sarki Lawaghir when he was informed at `Peshi Qaza Wela' by his son Wali-ur-Rehman that Rasool Muhammad, the complainant and his son Qadir Aziz have gone for cutting the trees and for debarring them from doing so, Rashid Gul (accused) Amal Gul (son of Asal Muhammad), Aqal Muhammad son of Khan Muhammad and Khan Muhammad son of Gul Ahmad had also gone there. On this information he went out of the school and saw that Rasool Muhammad (complainant in the present case) and Gul Khana Mir (deceased sons of Khair Gul), Qadir Aziz and Abdul Aziz (witness) (sons of Rasool Muhammad) were firing at Rashid Gul etc. Abdul Aziz on seeing him also fired at him but he and Rashid Gul escaped unhurt. The occurrence was seen by Wali-ur-Rehman, Rashid Gul Lal Gul sons of Nek Muhammad and Aqal Muhammad and Khan Muhammad. The motive was given as a land dispute over a `Shamilat'. 4. The I.O. Proceeded with the investigation of the case and after completion of the same, submitted the challan in Court and in consequence of which Rasool Muhammad faced the trial as he was arrested on the day of occurrence while the other two accused were fugitive from law and they were proceeded under section 515, Cr.P.C. The learned trial Court after recording of the evidence of the prosecution cons1sting of 8 witnesses recording of the statement of the accused acquitted him of the charge by giving various reasons i.e. Opinion of the police officer, delay in the F.I.R., non-commensurate of the injuries with the number of accused and weapons, addition by the doctor in the post-mortem report, for want of explanation of the injuries sustained on the person of the deceased, preliminary investigation was conducted first before recording of the F.I.R. The version of the complainant with regard to the taking away of the rifle of the deceased by the accused and its subsequent production by another person Ayub, the obtaining of which by the said Ayub was unexplained, suspicion with regard to the presence of the witnesses at the places shown by them, contradictions in the statements and opinion of the prosecution on agency holding a weak case. With regard to the cross report the trial Court observed that this shows at the most presence of the various persons but does not show the offence committed by the accused. The complainant party filed a revi4ion petition in the High Court, against the judgment and order of the trial Court, by which Asal Muhammad was acquitted, and the High Court though did not concur with the learned trial Court with regard to all the reasons advanced by the trial Court for acquittal of the accused i.e. Reliance on the statement of-Ayub recorded under section 161, Cr.P.C. And opinion of 1.0 and that of prosecution that it is a weak case but, however, by observing that the appraisal of the evidence qua the accused-- respondent (Asal Muhammad) done by the learned Sessions Judge was not open to exception and further observed that it would refrain from making any in depth scrutiny of each category of evidence in the light of the criticism levelled by the counsel for the respondent, lest it should adversely affect the case of the prosecution against the then absconding accused. The order of the High Court mentioned above dated 22-8-1990 was challenged before the Supreme Court and the Honourable Supreme Court vide its judgment dated
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11-5-1991 allowed the appeal and it was ordered that the absconding co---accused have since been arrested so all the accused should be jointly tried along with Asal Muhammad accused. The Honourable Supreme Court was also critical of certain points relied upon by trial Court i.e. I.O and P.I. Opinion, consideration of the statement of Muhammad Ayub under section 161, Cr.P.C., which as stated earlier had already been disapproved by the High Court and the Honourable-Supreme Court was also critical of the finding with regard to the delay in lodging the F.I.R. Which with others, have been made the basis of acquittal by the trial Court. 5. The trial of the absconding accused had already commenced and in consequence of the order of the Hon'ble Supreme Court all the three accused were tried jointly by the trial Court. The prosecution produced eleven witnesses. P.W.1 Abdur Rahim had identified the dead body, P.W.2 Shah Pur FC escorted the dead body to the mortuary and produced to the I.O. The clothes of the dead and one sealed phial containing pellets. P.W.3 Rehman Gul DFC who completed the proceedings under sections 204 and 87, Cr.P.C. Against the two absconding accused. P.W.4 Gul Sharaf is the marginal witness of the various empties etc. From the house of the accused (residential room of accused-Rashid) vide recovery memo. Exh.P.W.4/1, P.W.5, Rab Nawaz was the witness of the recovery memo vide which the I.O. Had taken into possession the blood-stained earth, blood-stained stone from the spot, two empties of `Gulidar' rifle, one deformed pellet of .12 bore, 3 cardboards of .12 bore. He is also a witness to the recovery memo. Vide which a licensed copy of 7 m.m rifle of the deceased produced by Rasool Muhammad complainant and also of the recovery memo. Vide which the 7 MM rifle No. 7401 of the deceased produced by Ayub Khan. P.W.6 Haq Nawaz Khan Line Officer arrested the accused Khan Muhammad and Rashid Gul on 15-2-1990. P.W.7 Muhammad Jamil, S.H.O. Submitted complete challan against the two absconding accused after their arrest. P.W.8 Pir Nawaz Khan, S.H.O. Conducted the investigation. P.W. 9 Dr. Taj Ali conducted the post-mortem examination on the dead body of the deceased. P.W.10 Rasool Muhammad is the complainant. P.W.11 Abdul Aziz was mentioned as eye-witness. After the close of the prosecution evidence the statements of the accused were recorded. The learned trial Court after hearing counsel of the parties vide its judgment and order dated 18-5-1992 convicted the accused to various sentences mentioned above. The learned trial Court for arriving at the impugned conclusion mentioned the principles for the admin1stration of criminal justice i.e. That whether the eye-witnesses were present on the spot and witnessed the occurrence, motive given was established and possibility of false implication or substitution to be seen for holding a person guilty of the offence and by elaborating the above principles further taken note of the facts that whether there is any mala fide moves on the part of the complainant side to involve the accused and for that purpose greater importance has been given to the prompt lodging of the F.I.R., the very contents of the report and the contradictions and incons1stencies in the prosecution evidence and the production of the independent evidence. 6. The learned trial Court showing itself to follow the above principles proceeded to substantiate its finding on the basis of above principles. Its first attempt was to seek support from the report lodged by the accused party Exh.P.W.8/1 for establishing the presence of the witnesses on the spot and holding that despite the denial of the accused Asal Muhammad of lodging the report Exh. P.W.8/1 found it to have been lodged by him and by substantiating its this conclusion referred to the mentioning of other names in the F.I.R. Which, according to it could not be done unless the report is taken to be the one as narrated by accused Asal Muhammad. The non-production of any witness from the school to show his presence there, the non-taking any step to obviate the effect of proceedings under section 182, P.P.C. Taken against him and specially the non-cross-examination of the witness produced the F.I.R. As P.W.8/1 showing that it has not been lodged by the accused Asal Muhammad and thus the learned trial Court arrived at the positive conclusion with regard to the presence of the witnesses at the time of occurrence. The next point of which he has taken care
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was with regard to the veracity/credibility of the witnesses as holding that there is no material contradictions in their statements and there also does not seem any attempt to substitute the innocent person. The corroboration of the ocular version was sought from the medical evidence and site plan. According to him the medical evidence corroborate the ocular evidence and despite the fact of the number of injuries which are 6 the three types of dimensions and the number of the accused charging which is 3 led him to the conclusion that the medical evidence is in corroboration of the evidence of the eye-witnesses. The points mentioned in the site plan and the recoveries of the various empties made him believed that these corroborate the ocular evidence: In the nutshell be believed the presence of the eye-witnesses without any contradictions in their statements supporting by the circumstantial evidence i.e. The medical evidence, site plan, recoveries from the spot and recovery from the house of the accused (residential room of Rashid accused). 7. We have heard the learned counsel for the parties and perused the record with their ass1stance. The prosecution case primarily hinges on the versions of the two eye-witnesses i.e. P.W. 10 Rasool Muhammad aged 59 years, brother of the deceased and his son Abdul Aziz aged 22 years P.W. 11 with the recoveries of the various empties and blood-stained earth and stone from the spot, various recoveries of empties of the various weapons from the house of the accused, medical evidence, motive and abscondence of the two accused and the F.I.R. Lodged by accused Asal Muhammad Exh.P.W.8/1. The witnesses can be termed as interested witnesses as they are closely related to the deceased and has also a land dispute with the accused party, which according to him led to the present occurrence, showing thereby the gravity of the dispute, and this situation places the Court with alertness and more conscious to believe the testimony of the witnesses and would compel it for seeking of the corroboration of their version. The first aspect of the case which should be attended by the Court is the very contents of the F.I.R., its timing of report the time of occurrence mentioned in it in juxtaposition with the statements of the complainant and the site plan as the same was also prepared at the instance of the complainant and also of the medical report. According to the F.I.R. The complainant has shown his presence as well as the presence of his son in the following words. The English translation of which is:-- "I was present outside of my house while my son Abdul Aziz was also present." This version of the complainant in the F.I.R. Shows that he did not show his presence in the very abbreviated or short words for example, that `we both were present outside the house' and when his statement was recorded in the Court he stated that he was coming from field while his son Abdul Aziz was coming from the college, so when he was showing his statement in the Court is taken to be correct, then he would have stated in the same way i.e. He was coming from fields while his son coming from college. This fact cannot be taken as elaboration in the statement in the Court of the version in the F.I.R. But rather it is an afterthought improvement in order to bring the case in conformity with the circumstances of the case which revealed later on. The presence of the accused was shown as sitting in a `Morcha' on the way. In the site plan though not substantive evidence by itself but prepared by I.O. At the instance of the complainant who owning the same in toto without any reservation when the scribe and the maker (at whose pointation it has been prepared) asserting it to be correct duly tendering the same in the evidence and exhibited then no reason appear to ex1st to disallow the accused to take any benefit from it in contradiction with other evidence specially with statement of its maker (at whose pointation it has been prepared). The places of the accused shown are not in one place in other words in one 'Morelia' but one of the accused Asal Muhammad is at a d1stance of 100 paces away from other accused which is at point No.4 and which according to the complainant situated not on the way but is a 'Ghunda' (a raising edge) at a height of 15 paces while according to the I.O. Is at a height of 30/32 paces from the ground level. This witness had also stated that there is a `Band' near the spot in `Banns' of the said
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`Band' is to the height that a man can conceal himself in a sitting position. The accused were sitting behind the `Banns' only With their heads. The places on which these two witnesses were present, have been shown in the site plan and in which the statements of the P.Ws. In such a way which contradicts each other. In the site plan the complainant has been shown at point No.2 while P.W. Abdul Aziz has been shown at point No.3 and if a person goes from the Southern side to the house of the complainant which is on the Northern side, then the person nearer to the house would be far away from the road on the Southern side and the site plan shows that P.W. Abdul Aziz was comparatively far away from the road than P.W. Rasool Muhammad. According to the statement of Rasool Muhammad that he was at a d1stance of 250 paces away from `Sarki Lawaghir' path which is on the Northern side and according to the statement of P.W. Abdul Aziz he was 150 paces away from the said road. These d1stances shown in the two statements contradict the position of these two witnesses shown in the site plan. In the F.I.R. The deceased has been shown to have fallen after the receipt of the second shot but in the statements recorded in the Court he was shown to have fallen after the receipt of the third shot. The complainant also made allegation in his statement with regard to the 2/3 further shots after hitting the deceased, by the accused first mentioning the same as in the air and later on attributing the same to have directed upon him and his son P.W. Abdul Aziz while according to P.W. Abdul Aziz, he categorically excluded any further shot upon him or on his father except the three shots. According to the eye-witnesses the deceased was having a rifle with him at the time of occurrence which was taken away by the accused but said rifle was produced by one Muhammad Ayub, Member Union Council which was given in turn to him by one Qabool Shah as evident from recovery memo. Exh. P.W.5/5 testified by the I.O. P.W.8 and independent witness Rab Nawaz P.W.5, and none of them (Muhammad Ayub or Qabool Shah) were produced that how the rifle came to their hands. It is more probable that as the house of Qabool Shah is situated at some d1stance from the spot as shown in the site plan also stated by the complainant and that after the occurrence he as the person first reached the spot, took the rifle and then handed it over to Muhammad Ayub who delivered it to the I.O., as the story of taking away of the rifle by the accused has been belied by the circumstances of the case which is indicative of the absence of the P.Ws. On the spot and the trial Court has also disbelieved the witnesses on this point by acquitting the accused under section 404/34, P.P.C. The non-production of these witnesses Muhammad Ayub and Qabool Shah leads to an adverse inference to be drawn against the prosecution, had they been produced, they would exclude the presence of the P.Ws. Or would reveal that the occurrence has not taken place in the manner in which it has been stated by the prosecution. The deceased was hit on point No.1 which is quite nearer to point No.5 (place of accused Rashid Gul) and 6 (place of accused Khan Muhammad) which is at a d1stance of about 13 and 8 paces respectively as compared to point No.4, the place of the accused Asal Muhammad at a d1stance of about 104 paces from point No.1, as shown in the site plan and there was no necessity of shouting of Rashid Gul present on point No.5 with such an intensity to be heard by P.Ws. At a d1stance of about 100 paces from him at a far away d1stance from the deceased as the first shot is alleged to have been fired by him as these two accused could do the job themselves first instead of alerting the deceased and showing their presence near him who was also armed with a rifle. According to the medical evidence the deceased sustained 6 injuries, which are entry wounds, and except injuries Nos. 5 and 6 all having corresponding exit injuries. The medical report shows that there are three types of dimensions injuries on the dead body and one may get an impression that this is in corroboration of the other evidence as three accused have been charged having three types of weapons, but from the close analysis of the medical evidence which does not corroborate the ocular version given by the witnesses. According to the statement of the doctor in some injuries the pellets have travelled from below to upward and some pellets travelled in the straight line. The places of the accused shown by the eye--witnesses and even as evident from the site plan do not
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commensurate with the injuries sustained by the deceased as the position of entry and exit of wounds Nos. 3 and 4 that when the deceased was hit and fallen on the ground he sustained these two injuries as the exit wounds of these two injuries are only possible when he is in the lying position but according to Court statement of the complainant after the receipt of the 3 shots deceased fell down and further states that it has been incorrectly recorded that the deceased fell down after the receipt of second shot. The veracity of the doctor cannot be considered as above board as when the empties of the various bores were recovered then the doctor changed his opinion by making an addition of the word `rifle and fire-arm' to the word `shotgun' which has already mentioned in his post-mortem report. The recoveries of the empties of the various bores from the house of the accused cannot be taken as a corroborative evidence unless the empties recovered are matched with the weapons recovered from the accused and specially when the empties so recovered all of them are not of the bore of a weapon attributed to the accused to have been armed at the relevant time. 8. What has been discussed above lead one to a conclusion that the alleged eye-witness, being interested witnesses, not truthful witnesses as their statements suffer from contradiction, inter se, and with F.I.R. On material points and with medical report and occurrence has not taken place in the manner in which they describe. Now after holding as such one is left with a question to be answered with regard to their presence on the spot which will be seen in the light of the discussion above and report Exh. P.W. 8/1 lodged by accused Asal Muhammad. 9. The learned trial Court seems to have been mainly influenced by the report lodged by the accused and the various presumptions have been drawn from the contents of the said -F.I.R. And has been taken as a very strong evidence to the prosecution and specially with regard to the presence of the parties on the spot and which lead one to see the evidentiary value of this F.I.R. Qua the accused Asal Muhammad and qua the other co-accused in the circumstances of the case and with its peculiar features i.e. (i) denial of its lodging by lodger during the trial at the time of recording his statement under section 342, Cr.P.C. (ii) its subsequent cancellation by the prosecution/ investigation agency for lack of evidence, i.e. The eye-witnesses were not produced by the complainant Asal Muhammad before I.O. In support of his version; (ii) initiating proceedings under section 182, P.P.C. Against complainant Asal Muhammad still pending in the Court. 10. The term F.I.R. Although not defined in the Criminal Procedure Code but as well known technical description and generally and universally held to cover information of a nature referred to in section 154 of the Criminal Procedure Code i.e. Information relating to cognizable offence given to an officer incharge of police station which set the criminal law and police in motion to initiate investigation. It also lays the foundation of the prosecution case. The information recorded under section 154, Cr.P.C. Is known as first information report though the words `first and report are not mentioned in the section ibid, but being called by this name in the Police Rules which in turn prescribe the form with its details in consonance with terms of section 154 which states that information thus given the substance of which be entered in a book kept by officer incharge of police station the form of which prescribed by the Provincial Government. 11. The information given to the police or the statement recorded by the police is of two types, (1) whether investigation has not commenced and for the first time an information with regard to a cognizable offence is given and (2) the statement is recorded by the police after the commencement of the investigation i.e. During the course of investigation. As regards the second kind of statement which is given during the investigation, that is inadmissible under the specific provisions of section 1.62, Cr.P.C. And its purpose only to contradict its matter with such statement at the time of his deposition in the Court while with regard to the first information report, there is no specific provision in respect of its admissibility or otherwise like the one provided under section 162, Cr.P.C. For statement recorded during investigation under section 161, Cr.P.C. And it will have to be
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seen in the light , of the various provisions of the Qanun-e-Shahadat, 1984. If…
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