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Petitioner: NAWAB KHAN and 2 others VS Respondent: AFSAR KHAN and another
Court Name: Peshawar High Court Judge(s): Abdur Rauf Khan Lughmani, Shehzad Akbar Khan Title: NAWAB KHAN and 2 others vs AFSAR KHAN and another Case No.: Criminal Appeals Nos.116, 117 and Criminal Revision No,18 of 1996 Date of Judgment:2000-05-29 Reported As: 2001 P Cr. L J 637 Result: Order accordingly
JUDGMENT
JUDGMENT ' SHAHZAD AKBAR KHAN, J.--- Through this common judgment we propose to dispose of Criminal Appeals Nos.116 of 1996, 117 of 1996 and Criminal Revision No,18 of 1996 as both the appeals and the revision arise out of the same judgment and order, dated 12-11-1996 passed by the learned Sessions Judge, Lakki Marwat in Sessions Case No,2 of 1996. As a result of the said trial appellant Taj Malook was convicted under section 302, P.P.C. Read with Qisas and Diyat Ordinance under Tazir and was sentenced to life imprisonment alongwith a fine of Rs,50,000 or in default thereof to suffer further five years S.I. In case of realization of the fine, 2/3rd of the same is payable to the legal heirs of the deceased as compensation whereas the appellant Khurshid was convicted under section 324, P.P.C. For effectively firing at the complainant Afsar Khan and sentenced to seven years' S.I. Plus fine of Rs,30,000 under section 324, P.P.C. In default of payment of fine he was to suffer further three years' S.I. Similarly appellant Nawab Khan was also convicted for effectively firing at P.W. Habibullah under section 324, P.P.C. And sentenced to seven years' S.I. Alongwith fine of Rs,30,000 or in default thereof to suffer further three years' S.I. The appellants Nawab Khan and Khurshid were, however, acquitted of the charge under section 302, P.P.C. Whereas the appellant Taj Malook was acquitted of the charge under section 324, P.P.C. All the three convicts have challenged their convictions and sentences vide Criminal Appeal No,116 of 1996, while the complainant Afsar Khan feeling aggrieved with the sentence awarded to the appellant Taj Malook has filed a Revision Petition No,18 of 1996 for the enhancement of his sentence from life imprisonment to death penalty. He was also aggrieved of the acquittal of Taj Malook of the charge under section 324, P.P.C. And of the acquittal of Khurshid and Nawab Khan from the charge of murder of the deceased and, as such, he has also filed a Criminal Appeal No,117 of 1996 praying therein that accused Nawab and
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Khurshid be convicted under section 302, P.P.C. And Taj Malook be convicted under sections 324/34, P.P.C. 2. We may observe at this stage that the appellant Nawab Khan who is also respondent in Criminal Appeal No,117 of 1996 after serving his sentence of seven years' imprisonment was released from jail and was subsequently murdered. In this regard, the statement of Mr. Lateefullah Khan, S.H.O. Police Station Ghazni 4thel was recorded and the F.I.R. Of his murder was placed on file, therefore, the appeal as well as the revision to the extent of Nawab Khan stand abated. 3. The criminal law came into motion against the accused/appellants on lodging the report by the complainant (P.W.5) on 25-9-1992 in the Emergency Ward of Civil Hospital Nurang recorded in the form of a Murasila by Gul Hassan, A.S.-I. Which was culminated into the F.I.R. No,362 of Police Station Naurang to the effect that at 10-00 a.m. Of the same day, i.e 25-9-1992 the complainant, Habibullah and Munawar Khan were present in the shop of Munawar Khan when accused Nawab Khan son of Nawaz Khan, Taj Malook and Khurshid sons of Nawab Khan, co-villagers of the complainant, duly equipped with 12 bore D.B. Shotguns came and accused Taj Malook fired with his topak at Munawar Khan, accused Nawab Khan fired at Habibullah and accused Khurshid fired at the complainant as a result of which all the three got injured. After the firing the three accused decamped from the spot. Munawar Khan injured succumbed to the injuries on the spot and the two injured were taken to the hospital by the people who gathered there. The motive for the occurrence stated in the F.I.R. Is that Munawar Khan had made firing on Taj Malook appellant regarding which a case was registered at the police station. Thus, all the three accused were charged under sections 302/324/34, P.P.C. Vide abovementioned F.I.R. 4. Investigation was carried out by the Investigating Officer. The accused Nawab Khan and Khurshid were arrested on 9-2-1993 whereas accused Taj Malook was arrested on 16-2-1993. It, however, appears that at some stage the Investigating Officer had released Nawab and Khurshid under section 169, Cr.P.C. Against which a petition under section 561-A, Cr.P.C. Was filed in this Court bearing No,5 of 1994 which was accepted on 3-7-1994, the order of the Investigating Officer was set aside and the prosecution agency placed them in Column No,2 of the challan and submitted complete challan before the Court. On framing of the formal charge on 29-2-1994, the accused claimed trial which was commenced and the prosecution in support of its case produced ten witnesses. 5. P.W.1 Azim Khan F.C. No,466 of Police Station Naurang was entrusted with warrant under section 204, Cr.P.C. And .Proclamation under section 87, Cr.P.C. Against all the three accused which were returned unexecuted vide Exh.P.W.1/1 to Exh.P.W.1/6 respectively. P.W.2 Miran Shah, I.H.C. Is a marginal witness to recovery memo. Exh.P.W.2/1 vide which the Investigating Officer took into possession one Chaddar (Exh.P.1) duly blood-stained and having cut marks from the spot and sealed it into a parcel. Similarly he is also a marginal witness to recovery memo. Exh.P.W.2/2 vide which the Investigating Officer took into possession blood with the help of cotton from the place of injured Afsar Khan and Habibullah and sealed the same. P.W.3 Awal Khan was handed over the injury sheet of the deceased and those of injured Afsar Khan and Habibullah by the Investigating Officer whereafter he had handed over the same to the Doctor at the time of autopsy of the deceased and examination of the injured persons. P.W.4 Doctor Abdullah Khan, Medical Officer, Civil Hospital Serai Naurang on 29-5-1992 at 11-00 a.m. Had examined injured Afsar Khan and found the following:-- (1) Four fire-arm inlet wounds, each having size of 1/6" x 1/6" separated from each other on the outer aspect of left knee joint. Corresponding rent marks present, Shalwar, one shirt which were handed over to police. A pellet under skin on opposite side of wound No,1 was removed and handed over to police in a sealed bottle.
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' Likewise, the same doctor had examined injured Habibullah on 25-9-1992 at 11-15 a.m. And found the following:-- (1) A fire-arm inlet wound 1/3" x 1/3" in size over dorsal surface of left thigh near knee joint. (2) A corresponding fire-arm outlet wound 1/2" x 1/2" in size over vental surface of left thigh near knee joint. (3) Sevenfire-arm inlet wounds each having size of 1/6" x 1/6" on the outer aspect of right thigh, upper hand, separated from each other. (4) Corresponding seven fire-arm outlet wound each having size of 1/4" x 1/4" on the inner aspect of right thigh upper hand separated from each other. Corresponding rent marks present in shirt and Shalwar which were handed over to police. The patient was referred to District Headquarters Hospital, Bannu for further treatment. ' Time between injuries and examination was one hour to 1-1/4 hours. ' The same doctor had also conducted autopsy on the dead body of deceased Munawar Khan on 25-9-1992 at 11-30 a.m. And found the following:-- (1) Nine fire-arm inlet wounds each having size of 1/8" x 1/8" separated from each other in a group shape within an area of 3" x 3" on right lateral side of chest over 5th, 6th, 7th and 8th ribs area. A piece of card board was recovered from one of these wound which was sealed into the bottle. (2) There corresponding fire-arm outlet wounds each having size of 1/10" x 1/10" widely separated from each other over back of left chest just below the inferior angle of left scapula. (3) Five corresponding pellets were recovered from back of left side of chest under skin over inferior angle of left scapula. (4) Five pellets alongwith one piece of card board sealed in a bottle and handed over to police. ' In opinion of the doctor, these multiple fire-arm injuries had injured the vital organs of thorax including both pleurae, lungs and its vessels, heart and paricardium and all other blood vessels of chest causing very severe haemorrhage, shock and death. Rent marks present in shirt and Banyan which were handed over to the police. A Chaddar in which corresponding rent marks were present was also handed over to the police. ' "Time between injury and death was opined as 10 to 15 minutes while that between death and post-mortem examination as 1 to 1-1/4 hours. Post-mortem documents are Exh.P.4/3 while pictorial is Exh .P.W .4/4. " 6. P.W.5 is Afsar Khan complainant who during his statement before the Court squarely supported the version given in the F.I.R. And specifically mentioned the role of each accused to the effect that accused Taj Malook fired at the deceased Munawar Khan who was hit while accused Khurshid fired at him which also resulted in giving him the injuries whereas accused Nawab Khan fired at P.W. Habibullah causing injuries to him. He also described the relationship between the accused by saying that accused Taj Malook and Khurshid are brothers inter se while accused Nawab is their father. The deceased was his cousin and also the brother of his wife. He accepted the correctness of the F.I.R. And his signature thereon. He also testified to the endorsement of the thumb- impression of Habibullah over the F,I.R. He also stated that after 2/3 days he accompanied the local police and pointed out to them the relevant places. He also stated that the motive of occurrence was that on 20-1-1990 Munawar Khan deceased had fired at accused Taj Malook as a result of which he was injured and as such the present occurrence. P.W.6 is Habibullah who had also received injuries on the spot. He stated that on the day of occurrence at about 10-00 a.m. He alongwith the deceased and P.W. Afsar Khan were sitting in the shop at Naurang when accused Taj Malook, Nawab and Khurshid duly armed with D.B. Shotguns arrived there. Taj Malook fired at the deceased as a result of which he was injured while accused Nawab Khan fired at this P.W. Causing injuries to him and accused Khurshid fired at Afsar Khan complainant who was also injured. After commission of the crime, the accused decamped from the scene. They were taken to the hospital
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where Afsar Khan lodged the report which was also endorsed by this P.W. P.W.7 is Bahadur Khan who identified the dead body of the deceased before the doctor and the police being his co- villager. P.W.8 is Gul Hassan A.S.-I. Who, during the days of occurrence, was posted at Police Station Naurang as A.S.-I. On 25-9-1992 he got the knowledge in the police station that some injured persons were brought to the Civil Hospital, Naurang. Thus, he rushed to the Emergency Ward and at 10-30 a.m. Afsar Khan complainant in injured condition lodged the report which was incorporated into a Murasila Exh.P.A. Which was signed by the complainant and also by Habibullah injured P.W. He accepted his signature as correct. On the basis of Murasila, the F.I.R. Exh.P.A./1 was incorporated. He prepared the injury sheets of both the injured P.Ws. Which are Exh.P.W.8/1 and Exh.P.W.8/2 and also prepared the injury sheet of the deceased Munawar Khan as Exh.P.W.8/3 on the file. He also recorded the statement of Habibullah P.W. And then proceeded to the spot where he drew the site plan Exh.P.B. He recovered blood from the sofa-set lying inside the shop of Munawar Khan deceased and also recovered four pellets of .12 bore Exh.P.1, four card-boards Exh.P.2, one Chaddar having blood-stains and cut marks Exh.P.3. And also collected blood from the floor of the shop and sealed the same into a parcel through a recovery memo. Exh.P.W.8/4. He also took into possession a phial containing 05 pellets of .12 bore Exh.P.4 and shirt of the deceased Exh.P.5, a Chaddar Exh.P.6, shirt and Shalwar of the injured P.W. Habibullah Exh.P.7 besmeared with blood and having cut marks alongwith the shirt and Shalwar of Afsar Khan complainant Exh.P.8 also stained with blood and having cut marks. He sealed these articles into a separate parcel vide recovery memo. Exh.P.W.8/5. On 28-9-1992 he took the complainant to the spot and added the notes in the site plan on his pointation. He arrested accused Taj Malook on 16-2-1993 and also prepared the inquest report of the deceased Munawar Khan which is Exh.P.W.8/6. Thenceforth he handed over the investigation to another Sub-Inspector. 7. P.W.9 is Asmatullah Khan a retired S.H.O. Who during the days of occurrence was posted at Police Station Naurang as A.S.-I. On the receipt of the Murasila he registered the case vide F.I.R. Exh.P.A./1. He also accepted his signature on the same. P.W.10 is Haji Attaullah Khan resident of village Nasir Khel. He is a marginal witness to the recovery memo. Exh.P.W.8/4 vide which the Investigating Officer took into possession blood from the sofa set, four pellets, one card-board and a white Chaddar containing stains of blood from the shop. He is also a marginal witness to recovery memo. Exh.P.W.8/5 vide which the Investigating Officer took into possession attire of the deceased alongwith one phial containing one pellet of .12 bore and another phial containing five pellets of .12 bore alongwith one card board. All the articles were sealed in his presence into a parcel. He accepted his signature on the memos. In his Court statement. On 30-10-1995 the Public Prosecutor, Lakki closed the evidence of the prosecution. Thereafter, Mr. Kalam Raees Khan S.H.O. Police Station Miryan was examined as C.W. Who stated that during the days of occurrence he was posted as S.H.O. Police Station Naurang and submitted challan under section 173, Cr.P.C. Against the accused Nawab and Khurshid who were placed in column No,2 and has stated that both the accused were found innocent by him and were released under section 169, Cr.P.C. He subsequently arrested accused Taj Malook and submitted supplementary challan against him on 3-2-1993. This P.W. Was cross-examined both by the defence and by the prosecution. After this phase, the statements of all the three accused were recorded under section 342, Cr.P.C. Wherein all stated that the matter of firing by the deceased on accused Taj Malook was compromised and denied the commission of the crime in totality. Regarding their abscondence, accused Taj Malook stated that he did not abscond and had gone to Islamabad to get employment where he stayed for many days and on his return when he learnt about the allegations he filed a bail before arrest application which was not confirmed and was consequently arrested. The accused Khurshid stated that since he was innocent and the local police were making investigation and had not taken any step for his arrest and when he was summoned by the S.H.O. He submitted himself for the arrest. Similar was the
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explanation of accused Nawab Khan regarding his absconsion. All the accused termed the P.Ws. As interested and it was stated that the deceased and the P.Ws. Have enmity with many people. They, however, did not produce any defence nor opted for giving statement on oath. 8. On conclusion of the trial, the learned trial Court passed the judgment and order impugned by both the sides; the prosecution and defence. A gist of the same has already been given in the opening of this judgment. 9. The above summary of the statement of facts would lead to the result that the case of the prosecution is organically composed of the following:-- (i) the ocular testimony of the injured-complainant Afsar Khan and injured P.W. Habibullah as P.Ws. 5 and 6 respectively. (ii) medical evidence in the form of post-mortem report of the deceased and the injuries caused to the eye-witnesses, (iii) recoveries of pellets from the spot as well as from the body of the deceased, blood recovered from the sofa-set lying in the shop, Chaddar containing blood and cut marks belonging to Afsar Khan, recovery of card-board from the spot. (iv) abscondence of the accused and (v) motive. 10. The learned counsel for the convict-appellants started his arguments with the submission that as appellant Nawab Khan has since died, therefore, to his extent the appeal is abated and he would confine his arguments only to the extent of Taj Malook and Khurshid for the purpose of Criminal Appeal Nos.116 of 1996, 117 of 1996 and Criminal Revision No,18 of 1996. 11. The learned counsel has assailed the conviction and sentence of Taj Malook and Khurshid on the following grounds:-- ' Firstly, that the learned lower Court has incorrectly believed the testimony of the two eye- witnesses namely Afsar Khan and Habibullah notwithstanding the fact that their testimony suffers from material contradictions and as such does not inspire confidence to record a conviction for an offence carrying capital punishment. Moreover, the witnesses are chance witnesses and there was no reason for them to be present with the deceased. ' Secondly, that no independent eye-witness is forthcoming against the convict/appellants, ' Thirdly, that medical evidence does not support the prosecution case, Fourthly, that no empty has been recovered from the spot, ' Fifthly, that there was no strong motive for the convict/appellants to commit the said offence as the matter of firing by the deceased Munawar Khan on Taj Malook stood compromised and no had existed between the parties, and ' Sixthly, that the complainant party had enmity with other persons and various criminal cases had been registered against them. ' Thus, he contended that the convict/appellants were substituted for the real culprits for ulterior motive. Lastly while folding up the arguments, he contended that appellant Khurshid was declared innocent by the Investigating Agency and was resultantly placed in Column No,2 of the challan which speaks about his innocence. Reiterating his above submission, the learned counsel argued that the learned trial Court had slided into an error by ignoring the above significant aspect of the case which according to him was a serious departure from the principle of appreciation and evaluation of the evidence which has resulted into grave miscarriage of justice. 12. On the contrary, the learned counsel for the complainant has defended the judgment of the trial Court to the extent of appreciating the prosecution evidence and the conclusion drawn regarding the guilt of appellant Taj Malook and submitted that the learned trial Judge has proceeded on correct premises for the purpose of evaluating the evidence against the appellant Taj Malook, but he seriously criticized the quantum of punishment awarded to him and submitted that though the
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conclusion drawn by the learned trial Court regarding the guilt of appellant Taj Malook was correct but there was no mitigating circumstance so as to justify the non-awarding of the normal penalty of death to him. He contended that the circumstances of the case fully justify the awarding of death penalty to Taj Malook. He, therefore, prayed for the acceptance of Criminal Revision No,18 of 1996 to inflict the normal penalty of death of Taj Malook. He also submitted that the appellant Taj Malook was incorrectly acquitted of the charge under section 324, P.P.C. And in view of the common intention duly shared by all the accused, he should have been convicted under section 324, P.P.C. As well. 13. While advancing his arguments in favour of Criminal Appeal No,117 of 1996, he contended that Khurshid respondent was wrongly acquitted from the charge of murder of Munawar Khan and it was a sheer violation of the doctrine of vicarious liability embodied in section 34, P.P.C. And prayed that on acceptance of the said appeal, Khurshid respondent should also be convicted on the charge of murder of the deceased Munawar Khan and demanded punishment according to law. 14. The learned State counsel has also adopted the arguments of the learned counsel for the complainant. 15. We have considered the rival contentions of both the parties and have curiously examined the record in perspective of the contentions of the parties and in the light of the prosecution evidence and the attending circumstances of the case. The instant case requires to be looked into and viewed from three angles. Firstly, whether the prosecution has succeeded in proving its case against the convict-appellants and the sentence of life imprisonment awarded to Taj Malook is proper to secure the ends of justice. Secondly, whether the acquittal of Taj Malook from the charge under section 324, P.P.C. Is justified and, thirdly, whether the acquittal of accused Khurshid from the charge of murder of the deceased Munawar Khan is unjustified and violative of the principle of vicarious liability. 16. Regarding the first contention of the learned counsel for the convict/appellants that the learned trial Court has wrongly relied upon the ocular testimony of the two P.Ws., we may observe that both the eyewitnesses, i.e, Afsar Khan and Habibullah received injuries in the same incident which eloquently speaks regarding their presence on the spot. Both the eye-witnesses are minutely unanimous in their statements and despite a thorough and lengthy cross-examination, their testimony could not be shattered on any material point. Both the eye-witnesses have attributed firing to the appellants with D.B. Shotguns and the medical report reveals that the injuries caused to the deceased as well as to the eye-witnesses were that of pellets. A piece of card-board and five pellets were recovered from the dead body of the deceased. Besides this, the Investigating Officer had also recovered four pellets of .12 bore (Exh.P.1) and four card-board (Exh.P.2) from the scene of occurrence which establishes the fact that the attack was launched by the appellants and the firing was made by the shotguns. The recovery of blood from the venue of occurrence, the Chaddar, the pellets and the card-boards clearly establishes the venue of occurrence. The occurrence took place at 10-00 a.m. And the report was lodged at 10-30 a.m. By the injured person in the hospital which is a reasonable promptitude and excluded all kinds of doubts for deliberation and consultation. It is also a visible feature of the' case that from the initial stage, i.e, at the time of lodging the report, the shotguns were attributed to the appellants. Moreover, the deceased Munawar Khan was the cousin as well as the brother of the wife of Afsar Khan, whereas Habibullah is Tarboor (cousin) of the complainant. Thus, in view of such a close relation their presence with the deceased was not unnatural by any stretch of imagination. Therefore, the contention of the learned counsel for the convict-appellants that the eye-witnesses were unnatural and were not present on the spot is not tenable at all. 17. The second contention of the learned counsel for the convict/ appellants is that no independent witness is forthcoming is of no significance because in our social set-up and in view of the obvious
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danger of enmity no independent' person comes forward to depose against a person facing charge of culpable homicide. Therefore, the non-forthcoming of any outsider as a witness would not damage the case of the prosecution if the eye-witnesses otherwise qualify the test of confidence and their testimony rings true being commensurate with all the attending circumstances. Even the testimony of any interested witness can be accepted for recording conviction provided it finds sufficient corroboration from other circumstantial evidence of the case. In the instant case, the testimony of the eye-witnesses is strongly corroborated by the medical evidence, recoveries of various kinds and abscondence of the accused. 18. The third contention of the learned counsel for the convict/ appellants is that the medical evidence is not in line with the ocular account. We may observe that this limb of the arguments of the learned counsel is misconceived. A bare look at the medical report in the form of post-mortem examination as well as the stamp of injuries sustained by the eye-witnesses clearly suggests that the injuries were caused with shotguns and the pellets were also recovered from the dead body of the deceased. The fourth contention of the learned counsel is that no empty was recovered from the spot. The non-recovery of any empty is quite understandable as the firing by all the three persons was made by D.B. Shotguns is and a single fire by each accused or if maximum is viewed and two fires are made by each even then there is no chance of ejaculation of the empties as the D.B. Shotgun contains twin cartridges at a…
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