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Petitioner: MUHAMMAD HANIF KHAN and another VS Respondent: THE STATE
Court Name: Shariat Court of Azad Jammu and Kashmir Judge(s): Iftikhar Hussain Butt Title: MUHAMMAD HANIF KHAN and another vs THE STATE Case No.: Criminal Appeals Nos. 2 and 3 of 1998, Date of Judgment:2000-07-24 Reported As: 2000 YLR 2976 Result: Order accordingly
JUDGMENT
JUDGMENT ' Since both the appeals and reference arise out of the same incident and judgment, they have been consolidated and will be disposed of by this single judgment. ' Briefly stated the case of the prosecution is that the complainant party had obtained a decree for the possession of land measuring 6 to 7 Kanals situated in the area of village Choota Gala, Tehsil Rawalakot, against accused-party and some other persons from the Court of Sub-Judge, Rawalakot. Muhammad Tufail, deceased, who was attorney of the decree-holders occupied the said land after the decree. The accused persons, on 29-10-1986 at 9 a.m. Entered into the suit land and started sloughing the same. On which Muhammad Tufail, Said Akbar, deceased, and Muhammad Akram Khan, proceeded towards that land but in the way Muhammad Hanif, accused-appellant, and Muhammad Khan, deceased-respondent fired at Muhammad Tufail with their .12 bore guns causing injuries on his abdomen while Muhammad Yousaf, convict-appellant, fired a gunshot at the abdomen of Said Akbar. Both the injured persons succumbed to fire-arms injuries spontaneously. Meanwhile, Dillawar Khan, accused, has been firing shots amongst which one hit on the left hand of Farooq Hussain who had also reached on the spot during that time. During the firing a pellet hit at the inner side of the little finger of the right hand of Capt. Hussain Khan, complainant. The police reached at the spot and recorded the statement of the complainant. ' The motive behind the occurrence has been stated to be a dispute of the land whereby Muhammad Tufail and Said Akbar, deceased, were pleading the case of Black-Smith's party. The accused persons were inimical to them for this reason and wanted to do away with their lives.
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' In the light of the statement of the complainant a case under section 307/34, A.P.C. Read with section 5/15 of Islamic Penal Laws Enforcement Act, 1974, was registered by Muhammad Rafiq Nawabi, deceased, 5.-I. P lice (P.W.15). ' The a cussed persons Dillawar Khan, Muhammad Khan, deceased and Muhammad Yousuf were arrested on 29-10-1986 whereas Muhammad Hanif was apprehended on 6-11-1986. The inquest reports of both the deceased were prepared by Muhammad Rafiq Nawabi, S.-I. Police (P.W.15) on 29-10-1986. After the autopsy, the bloodstained clothing's of both the deceased were taken into possession by said Muhammad Rafiq Nawabi, S.-I. Police vide recovery memos. Exh. P.B. And Exh. P.C. Attested by Captain Hussain Khan (P.W.1) and Muhammad Farooq Khan (P.W.3) on 29-101986 on the day of occurrence. On the same day the blood-stained clay was recovered from the spot and secured vide memo. Exh. P.E. In the presence of Muhammad Akram (P.W.2) and Said Muhammad (P.W.4). An empty was also taken into possession on 2910-1986 vide recovery memo. Exh. P.F. In the presence of aforesaid witnesses. On the same day an instrument of ploughing with its lock etc., (URDU TEXT) and seed of wheat weighing 2/3 kg. With its pouch were recovered from the spot and secured vide recovery memo. Exh. P.D. In the presence of the afore named witnesses. The injury forms of accused Dilawar Khan, Captain Hussain Khan (P.W.1) and Muhammad Farooq Khan (P.W.2) were prepared who were also medically examined on the day of occurrence. ' On 31-10-1986 Zulfiqar Ahmed, Patwari (P.W.3) prepared the site plan Exh. P.I. In the presence of eye-witnesses and Police. ' On 6-11-1986 Muhammad Hanif convict appellant led to the recovery of .12 bore gun with its licence from his house, which was taken into possession vide recovery memo. Exh. P.F. Attested by Said Muhammad (P.W.4) and Muhammad Ashraf (P.W.5). ' On 8-11-1986 Muhammad Yousaf, convict appellant led to the recovery of .12 bore gun with an empty recovered from chamber of the gun from his house, which was taken into possession vide recovery memo. Exh. P.H. Witnessed by Abid Hussain (P.W.6) and Hawaldar Muhammad Yaqoob (P.W.7). On the same day a copy of appeal titled Dilawar Khan and another v. Muhammad Akbar and others, filed against the decision of Additional Sub-Judge, Rawalakot on 30-7-1986 through which a decree for possession was passed in favour of complainant party, was taken into possession from Naki Muhammad In charge Record Room, Rawalakot by Muhammad Rafiq Nawabi, S.-I. Police in the presence of Said Muhammad (P.W.4) and Sakhi Muhammad, Constable 1443 through recovery memo. Exh.P.H. (which is marked as Exh.P.HH during the course of this judgment) and hereinafter shall be referred to as Exh.P.HH. ' On 10-11-1986 Captain Hussain Khan (P.W.1) produced the copies of the power of attorney of Muhammad Tufail, which were taken into possession in the presence of Abid Hussain (P.W.6) and Hawaldar Muhammad Yaqoob Khan (P.W.7). ' Shadab Ahmed, A.S.-I. Police produced two sealed parcels of pellets amongst which 9 were allegedly extracted from the body of Said Akbar deceased, whereas three pellets were allegedly extracted from the body of Muhammad Tufail, deceased, were taken into possession vide recovery memo. Exh.P.M., witnessed by Shadab Ahmed, A.S.-I. Police (P.W.14) and Bashir Ahmed Sulehria S.-I. Police (P.W.15). ' It was reported by the Chemical Examiner vide its report, dated 22-11-1986 that the earth, Qameez, Shalwar, Chaddar, Muffler, pair of socks of Muhammad Tufail, deceased, and Kurta, Shalwar, Salooka, Jarsi, Wasket, Roomal of Said Akbar, deceased were stained with blood, however, the pair of socks of Said Akbar, deceased, was not found stained with blood. ' It was reported by Director, Forensic Science Laboratory, Punjab vide its report, dated 21-12-1986 that the crime empties were found to be fired by the .12 bore gun allegedly recovered from Muhammad Hanif and Muhammad Yousaf, convict appellants.
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' It was also reported by the Serologist vide his report, dated 16-2-1988 that the blood-stained earth taken into possession vide recovery memo. Exh. P.E. And the bloodstained clothing of both the deceased are stained with human blood and belong to the blood Group B. ' The post-mortem of the dead body of Muhammad Tufail, deceased was performed on 29-10-1986 at 4 p.m. By Dr. Javaid Iqbal Rathore (P.W.10), Medical Officer, Civil Hospital, Rawalakot vide post- mortem report Exh. P.H./1. He noticed 5 injuries on the dead body of the deceased, caused by firearm. The injuries are detailed as follows:--- ' Front Abdomen: (1) 2 punctured wounds above umbilicus. (2) 2 punctured wounds below umbilicus. (3) 2 punctured right side umbilicus. (4) 1 punctured (one) right clue fossa. (5) 1 punctured round wound left lateral umbilicus. ' The autopsy of the dead body of Said Akbar, deceased was also performed on 28-10-1986 at 4 p.m. By Dr. Javaid Iqbal Rathore (P.W.10) vide post-mortem report Exh.P.H./3. According to his opinion the injuries on the dead body of the deceased were caused by fire-arm which are detailed as follows:--- "Ant. Left Lower chest near costal margin 9 punctured wounds each 1/2 inch diameter non-charred margin. Right middle chest in mid axillary line palpitated bullet recovered." ' After the investigation a challan was presented against the accused persons under sections 307/34, 447 of Azad Penal Code read with section 5/15 of Islamic Penal Laws Enforcement Act, 1974. The accused persons pleaded not guilty and opted for the trial. Capt. Hussain Khan (P.W.1), Muhammad Akram (P.W.2) and Muhammad Farooq (P.W.3) testified at the trial as witnesses to furnish the ocular account of the prosecution case whereas Said Muhammad (P.W.4), Muhammad Ashraf (P.W.5), Abid Hussain (P.W.6), Hawaldar Muhammad Yaqoob (P.W.7), Sakhi Muhammad, Constable 1443 (P.W .8), Zulfiqar Ahmed Patwari (P.W.9), Dr. Javaid Iqbal Rathore (P.W.10), Muhammad Shafi Constable 1190 (P.W.11), Muhammad Rashid, Head Constable Police 1462 (P.W.12), Muhammad Bashir S.-I. Police (P.W.13), Shadab Ahmed, A.S.-I. Police (P.W.14) and Bashir Ahmed Sulehria, S.-I. Police (P.W.15) were produced, in support of the prosecution case. ' During the trial Dillawar Khan, accused, passed away, therefore, after the conclusion of the prosecution evidence only three accused persons were examined under section 342, Cr. P.0 . On 16- 4-1996 whereby Muhammad Hanif, convict appellant pleaded that the complainant party launched an attack upon him and his companions to take over the possession of the disputed land forcibly on which both the parties fired shots and as a result of the cross firing Muhammad Tufail and Said Akbar, deceased, were killed who had also injured Dillawar Khan, accused. Whereas Muhammad Khan, accused pleaded that he along with Dillawar Khan and Muhammad Yousaf were sloughing the land when accused party launched an attack and tried to dispossess them from the disputed land. Diliawar Khan, accused, was sloughing the land who was stopped and injured. The complainant party shot fires and because of the cross firing Said Akbar and Muhammad Tufail were killed. Muhammad Yousaf, accused pleaded alibi that he was innocent and falsely involved in this murder case and was not present on the spot rather at the time of the occurrence he was present in a hotel situated in village Khhai Ghala. No oral evidence was led by the defence, however, some documentary evidence was produced. ' District Criminal Court PoonchRawalakot after the conclusion of the trial recorded the death sentence to the appellant, Muhammad Hanif, whereby the appellant Muhammad Yousaf was awarded the sentence of ten (10) years whereas other accused Muhammad Khan was not found guilty and extended the benefit of doubt vide its judgment, dated 7-1-1998. Muhammad Hanif and
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Muhammad Yousaf, convict appellants, through this appeal, have challenged their conviction whereas the complainant Capt. Hussain Khan has sought the enhancement of sentence of Muhammad Khan, deceased and Yousaf Khan convict respondents through counter-appeal. The abovementioned judgment of District Criminal Court PoonchRawalakot has been assailed through the aforesaid appeals whereas a reference has also been made by District Criminal Court Poonch- Rawalakot for the confirmation of its order and judgment, dated 7-1-1998. ' Sardar Khan, the learned counsel for the convict appellants, vigorously contended that the prosecution failed to establish its case beyond reasonable doubt against the convict appellants. He also urged that the eye-witnesses were interested and interrelated to the deceased and were inimical to the accused party. The learned counsel pointed out that it transpires from the impugned judgment that all the accused persons have been acquitted of the charge under sections 307, 34 and 447 of the Azad Penal Code but the aforesaid order of acquittal was not challenged through the counter-appeal similarly the order of acquittal of Muhammad Hanif to the extent of offence under section 447, P.C. Remains unchallenged. The learned counsel maintained that the injuries of Dillawar Khan, deceased, accused were also withheld by the prosecution even though a perusal of the medical certificate of said Dillawar Khan reveals that he received various incised wounds amongst which one incised wound of inner side of his left thigh was declared grievous, by sharp-edged weapon. He further agitated that Capt. Hussain Khan (P.W.1) and Muhammad Farooq (P.W.3) were also medically examined by Dr. Javaid Akhtar Rathore but their injuries were not proved by the prosecution. The learned counsel argued that recoveries effected from the convict appellants were also doubtful and when the evidence led by the both prosecution and defence is evaluated with care, it reflects that a false case was registered against them. The learned counsel argued with vehemence that alleged place of occurrence is situated in Chotta Gala but Zulfiqar Ahmed Patwari in charge of village Kuian was produced as prosecution witness instead of Patwari in-charge of village Chotta Gala. According to him, the site plan was prepared on 31-10-1986 which speaks about the recovery of a pouch of seeds although the pouch of seeds was not taken into possession till 31-10-1986. The learned counsel further maintained that ocular version of the prosecution was not corroborated by the medical evidence because according to the statement of Dr. Javaid Akhtar Rathore, nine (9) pellets which were extracted from the dead body of Said Akbar were neither sent to Fire-arms Expert for his examination nor were shown to the witness during his statement. He further submitted that Dr. Javaid Akhtar Rathore failed to explain the injury on the back of Muhammad Tufail, deceased. Furthermore, the weapon of offence and the clothing's of the deceased were also not shown to say Dr. Javaid Akhtar Rathore (P.W.10). The learned counsel pressed into service the submission that the recovery of an empty and the report of Fire-arms Expert were not put to convict Muhammad Hanif during his examination, recorded under section 342, Cr.P.C. Therefore, the aforesaid evidence cannot be made basis for the conviction of convict-appellant, Muhammad Hanif. According to him, recovery of .12 bore rifle was put to Muhammad Khan convict-appellant in his examination recorded under section 342, Cr.P.C. But according to the prosecution case, no gun was recovered from him during the investigation. He also pointed out that except the recovery of gun no other incriminating evidence was put to said Muhammad Khan thus, either the case be remanded for his re-examination under section 342, Cr.P.C. Or the said evidence may not be taken into consideration against him. It was also argued by the learned counsel that the trial Court has recorded in its judgment that the disputed land was in the possession of accused party. On this account, the accused party wanted to ward off the complainant party from their land. According to him, the right of defence of property and during the occurrence, when Dillawar Khan, real brother of Muhammad Hanif Khan convict-appellant, was being severely injured, the right of self-defence was available to him. For this reason the death penalty could not be imposed rather it is a case of section 304, Part II, A.P.C. The learned counsel
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emphasized that impugned judgment has been recorded in an illegal manner and does not transpire the facts that which offence was committed by the accused persons and amongst those which have been proved and under which offence hey have been convicted. He also submitted that convict Muhammad Yousaf has also not been extended the benefit under section 382-B, Cr.P.C. The eye-witnesses were interested and inter-related to the deceased, therefore, their evidence could not be relied upon in absence of a strong corroborative evidence which is missing in the instant case, argued by the learned counsel. In support of his contentions he has referred to us the following authorities:--- ' PLD 1965 Quetta 33; 1969 SCMR 569; 1972 PCr.LJ 204; PLJ 1976 SC 190; 1983 PCr.LJ 225; PLD 1985 Sh. C. (AJ&K) 24; 1985 SCMR 1573; PLD 1987 Lah. 505; 1988 SCMR 1592; 1991 MLD 1949; PLD 1991 Azad J&K 31; 1991 PCr.L.J SC (AJ&K) 1992; 1992 PCr.LJ Sh.C. (AJ&K) 1861; 1997 PCr.LJ 1539 and 2000 MLD 618. ' On the contrary, Tahir Anwar, the learned counsel for the complainant, strenuously argued that the prosecution has led the evidence of fifteen (15) witnesses and all of them have supported its version. He also contended that the prosecution case is supported by the eye-witnesses whose presence is even admitted by the -accused party. The learned counsel has further submitted that the accused persons were duly nominated during the statement of the complainant, recorded at the spot soon after the occurrence and the eye-witnesses were also named therein. According to him, all eye-witnesses have in an unequivocal manner deposed before the Court that the deceased were killed by .12 bore gunshots fired by Muhammad Hanif and Muhammad Yousaf accused persons, which hit them and in consequence of the injuries they fell down and died spontaneously. It was also argued by the learned counsel that the time, place of occurrence, the presence of Muhammad Hanif, accused, the death of the deceased persons, the recovery of gun and the presence of the complainant party is even admitted by the defence, however, the accused party has taken the defence of their property and person for the first time in their examination under section 342, Cr.P.C., which was never raised in their statements recorded under section 242, Cr.P.C. It transpires from their defence version that the complainant party was the aggressor who wanted to ward off the possession of the disputed land and launched an attack upon the accused party and because of cross-firing Said Akbar and Muhammad Tufail were done to death. The learned counsel maintained that if both the prosecution and defence versions are taken into juxtaposition the version taken by the defence seems to be an afterthought and concocted which does not appeal to a common mind. The prosecution version as alleged by the prosecution not only stands proved by the evidence of the eye-witnesses who have no enmity to falsely implicate the accused persons but is also corroborated by the medical evidence as well as the evidence of recoveries on the pointation of accused persons. The prosecution story also got ample support by the blood-stained clay recovered from the place of occurrence, clothes of both the deceased persons wearing at the time of occurrence. The learned counsel for the appellant-complainant argued that the motive as alleged by the prosecution also stands proved by the evidence of the prosecution which is, according to the learned counsel is also a corroborative piece of evidence lending support to the prosecution story. He defended the impugned judgment and submitted that the trial Court has not recorded an order of acquittal in favour of the accused persons rather it has been held by the Court that the disputed land belongs to Black-Smiths. The learned counsel has pointed out that the disputed land is situated in two village borders, village Chotta Gala and Kuian. The some points of site plan are situated in village Chotta Gala and some in Kuian, therefore, the appearance of Zulitkar Ahmed Patwari as (P.W.9) does not damage the case of prosecution on this score. He also pointed out that Dillawar Khan the deceased accused had absconded soon after the occurrence who was arrested in the evening, if he was severely injured then how he could abscond from the spot. Furthermore, it could not be proved that how Dillawar Khan was injured. The learned counsel pressed into service the submission that if the recovery of the pellet could not be
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put to Muhammad Hanif accused it does not create adverse impressions on the prosecution case in the peculiar circumstances of the case when the presence of Muhammad Hanif accused is itself admitted by the defence. According to him such minor irregularities can be ignored by the Court. In support, reliance was placed on following case-law:--- ' PLD 1978 SC 1; PLD 1979 SC 23; PLD 1979 SC 56; PLD 1979 Kar. 513; PLD 1983 SC (AJ&K) 211; PLD 1984 SC 22; 1987 PCr.LJ 1729; 1989 PCr.LJ 2336; 1992 SCR 1; 1995 PCr.LJ 199; 1997 PCr.LJ 1029; 1997 PCr.LJ 425; 1997 PCr.LJ 432; 1997 PCr.LJ 1522 and 1997 PCr.LJ 1673. ' Syed Ajaz Ali Gillani, the learned Assistant Advocate-General, appearing on behalf of the State, fully supported the contentions advanced by Tahir Anwar the learned counsel for the complainant. ' We have considered the arguments addressed at the Bar, after the perusal of the record and the case-law cited. At he very outset, it will be relevant to consider the respective versions of the prosecution as well as that of the defence. The prosecution story briefly stated is that on the day of occurrence the accused party armed with deadly weapons trespassed the land which was in the possession of Muhammad Tufail, deceased. Dillawar Khan started sloughing the land while other accused persons were standing to protect him When Muhammad Tufail and Said Akbar, deceased persons, saw the accused persons, sloughing the land they went to the place of occurrence to forbid them. As soon as they reached near the above mentioned land Muhammad Hanif shot a fire upon Muhammad Tufail, deceased, with his 12 bore gun which hit at his abdomen and he fell down whereas Muhammad Yousaf, accused also shot a fire upon Said Akbar, deceased, with .12 bore gun which hit at his abdomen who also fell down. The deceased-accused, Dillawar Khan has been making fires one of which hit on the left hand of Muhammad Farooq (P.W.3) and a pellet also hit upon little finger of right hand of Capt. Hussain Khan (P.W.1). The defence version has been set up in the examination of the accused persons under section 342, Cr.P.C. Which also flows from the evidence especially the suggestions put by the defence, is that the deceased persons were not done to death by the accused, Muhammad Hanif and Muhammad Yousaf, but on the contrary both the deceased with Capt. Hussain Khan (P.W.1), Muhammad Akram (P.W.2), Muhammad Farooq (P.W.3), Said Muhammad (P.W.4) and one Muhammad Ayub launched an attack upon the accused party with an intention to snatch the possession of the disputed land from the accused party. During the altercation both the parties made cross firing. The complainant party launched an attack upon Dillawar Khan, Muhammad Khan and Muhammad Hanif. At this, Muhammad Hanif also shot fires in his defence, and thus, both the deceased were done to death in consequence of the cross firing. Muhammad Yousaf accused has taken the plea of alibi. Therefore, when both the versions are taken into a juxtaposition and evaluated in its true perspective, the version taken by the defence seems to be improper, concocted and an afterthought for the reasons that in their statements under section 242, Cr.P.C. The accused party never raised a counter version and for the first time they took a plea of self-defence and defence of their property in their statements under section 342, Cr.P.C. We are conscious of the fact that the plea of right of private defence could be allowed even if it is not specifically pleaded by accused, provided such an inference is warranted from evidence on the record which of course, should be very clear and properly been raised upon the evidence and surrounding circumstances of the case. The question of right of self-defence is necessarily the question of fact and it has to be decided in the light of the circumstances of each case. Where the right of private defence is claimed by an accused such right has to be inferred from the statement of accused coupled with defence evidence if any and circumstances which arise out of the testimony of the prosecution witnesses. 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 person beyond any reasonable shadow of doubt. The prosecution is duty bound to prove its case, Zahir Hussain Shah v. Shah Nawaz Khan and 3 others and The State v. Shah Nawaz Khan and 2 others 2000 SCR 124.
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' In the present case, the style of cross-examination made by the defence especially through the suggestions put on the prosecution witnesses, the time and place of occurrence, the presence of accused persons and the presence of the complainant party, ploughing of land by Dillawar Khan, deceased accused, the use of deadly weapons, the act of firing by Muhammad Hanif and Muhammad Yousaf, accused persons, the injuries of Muhammad Tufail and Said Akbar, deceased persons, to be inflicted by deadly weapons and soon after the occurrence the presence of Police at the spot stands admitted by the defence. The recovery of blood-stained clay and an empty from the place of occurrence also proves that in fact the occurrence took place at the same place which is alleged by the prosecution. Now, the moot point which remains to be resolved as to whether the version taken by the defence is plausible, reasonable or that of prosecution. The minute and careful perusal of the evidence of the eye-witnesses who stood the test of lengthy cross-examination has established the fact that the occurrence took place in the manner as alleged by the prosecution and not as suggested by the defence. We may observe here that the right of private defence is one used a shield to avert an attack and cannot be used as a device for provoking an attack. It can only be a preventive and not used for retaliatory purposes. It will also be useful to mention here that the right of private defence in no case extends to the inflicting of more harm than it is…
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