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Petitioner: AMIR ZAMAN KHAN and 2 others VS Respondent: THE STATE and another
Court Name: Peshawar High Court Judge(s): Ejaz Afzal Khan, Ijaz-ul-Hassan Khan, Shehzad Akbar Khan Title: AMIR ZAMAN KHAN and 2 others vs THE STATE and another Case No.: Criminal Appeal No,712 and Criminal Revision No,155 of 2003 Date of Judgment:2005-07-26 Reported As: PLD 2005 Peshawar 243 Result: Appeal dismissed
JUDGMENT
JUDGMENT IJAZ-UL-HASSAN KHAN, J.--- I have gone through the judgment authored by my learned brother in the connected matters i,e, Criminal Appeal No,712 of 2003 and Criminal Revision No,155 of 2003. I regret my inability to agree with conclusions drawn and reasons advanced for holding that prosecution has failed to establish its case against the appellants beyond reasonable doubt and the appellants are entitled to finding of acquittal. Having gone through the entire material on record with the able assistance of learned counsel for the parties, I find myself in agreement with learned State counsel that prosecution has brought sufficient material on record to establish its case and the appellants are perpetrators of the crime. The ocular account of the occurrence stands furnished through the statement of complainant Alamzeb. The ocular account would need no corroboration to establish the charge against the appellants but still it is supported by medical evidence, recovery of pieces of glass from the spot, motive and noticeable absconsion of the appellants. The report of the incident was lodged promptly containing all the material facts relating to the occurrence. The defence despite lengthy cross-examination has not been able to dislodge the eye-witness on any material point. The discrepancies pointed out by learned appellants counsel in the statement of the complainant are insignificant and not fatal to the prosecution case. In view of the stamp of injuries on the person of the complainant, his presence at the venue of occurrence cannot be disputed. The complainant has given a straightforward and honest account of the incident and his statement can be safely relied upon to sustain conviction of the appellants. The argument that the complainant being the nephew of Abdul Wahid deceased is highly interested and as such cannot be relied upon is not tenable both legally and logically in the
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absence of any defect in its intrinsic probative worth and in the absence of any motive on his part to falsely implicate the appellants. 2. It is now, well-entrenched principle of law, that conviction can be based on the statement of solitary eye-witness provided the same is confidence inspiring and the intrinsic worth of the same rings true and satisfies the conscious of the Courts. It has been consistently held by the superior Courts, that it is the quality of evidence which is to be seen and not the quantity, and further, conviction can be based on the testimony of solitary eye-witness if it is confidence inspiring without any further corroboration. 3. Promptly lodging of F.I.R. In this case has also been noticed by me as a circumstance corroborating the eye-witness produced by the prosecution. Nothing is available on the record of the present case to doubt the claimed lodging of the F.I.R at the stated time. This promptly lodged F.I.R* contained all the relevant details of the occurrence including the names of the appellants as well as the role played by them during the occurrence. There was, thus little time, available in this case for consultation and deliberation for the purpose of substitution or false involvement of the appellants. 4. Immediately after the occurrence, the appellants went into hiding and remained fugitive from law. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence of the case. No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the direct and circumstantial evidence in the case. 5. Pursuant to above, I am of the view that the prosecution has proved its case against the appellants beyond any shadow of reasonable doubt and the appellants are responsible for commission of the crime. Resultantly, finding no substance in this appeal I dismiss the same and maintain the conviction and sentences awarded to the appellants. 6. Adverting to Criminal Revision No,155 of 2003, I find that the learned trial Judge has not awarded compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. The appellants are ordered to pay Rs,50,000 each to the legal heirs of the deceased as compensation within the contemplation of section 544-A, Cr.P.C. Or in default thereof to undergo six months R.I. The other sentences awarded to the appellants shall remain intact. With this modification, the criminal revision stands dismissed. In view of the difference of opinion, the matter is referred to Hon'ble the Chief Justice for appropriate orders. (Sd.) IJAZ-UL-HASSAN KHAN, J EJAZ AFZAL KHAN, J.---On -the day of occurrence complainant Mubarak Zeb and his deceased maternal uncle Muhammad Wahid alias Bhutto after attending a hearing in a Court were on their way back to their village in a Datson Pick-up driven by Taza Khan, another deceased. Alamgir P.W. Was also present on it as conductor. When the Pick-up reached a place known as Maniar, Amir Zaman, Shaukat Ali and Zafar Ali Khan, appellants herein, who were armed with firearms fired at the prions sitting therein from a white Toyota Corolla car driven alongside it. Muhammad Wahid alias Bhutto on being hit died on the spot. Taza Gul though hit fatally but died after he was taken to the Hospital, while the shots hitting the P.Ws. Resulted in fire-arm injuries on different parts of their bodies. The matter was reported in the Hospital and pursuant thereto a case under sections 302/324/427/34, P.P.C. Was registered against the appellants, vide F.I.R No,252 dated 11-6-1999 Police Station Ghaligai. The motive for the occurrence is previous blood feud. 2. After the arrest of the appellants and completion of the investigation, they were sent to the Court of Izafi Illaqa Qazi-I Swat, who on its conclusion sentenced them to undergo imprisonment for life on 2 counts for the murder of Muhammad Wahid and Taza Khan under section 302(b), P.P.C. And to
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2 years' R.I. With a fine of Rs,10,000 each on 2 counts for causing injuries to the complainant and the P.Ws. Or in default to undergo one year S.I. Under section 324, P.P.C., vide his judgment dated 22-10- 2003. The benefit of section 382-B Cr.P.C. Was extended to the appellants and all the sentences were ordered to run concurrently. Hence this appeal and a criminal revision for enhancement of sentence which are disposed of by this single judgment. 3. It was argued by the learned counsel for the appellant that even if it is assumed that the presence of the P.Ws. Is established by the stamps of injuries on their persons, yet the account furnished by them does not inspire confidence firstly because it does not conform to medical evidence, secondly because it does not fit in with the surrounding circumstances and thirdly because it was humanly impossible for the P.Ws. To see and identify the assailants when they were at their back and the car, they fired from was mobile throughout. While referring to the testimony of Alamgir, the learned counsel submitted that though his statement was recorded under section 512 Cr.P.C. Yet it cannot be equated with the one which is recorded on oath in the presence of the accused and subjected to the test of their cross-examination. The learned counsel by referring to the evidence of the Investigating Officer submitted that when admittedly one of the appellants was driving the car at the relevant time and the vehicle did not stop for a while the story that all the three fired appears to be unbelievable on the face of it. The learned counsel next submitted that absence of any empty or spent bullet from the spot notwithstanding as many as 60/70 shots were fired by the assailants will prove that the occurrence has not taken place in the manner described by the prosecution. The learned counsel by concluding his arguments submitted that when the occurrence could be a doing of one man and the charge against the appellants appears to have been exaggerated because of previous blood feud, it will not be safe to maintain their conviction. 4. As against that, the learned A.A.-G appearing on behalf of the State assisted by the learned counsel for the complainant, argued that all the assailants were correctly identified at the scene of occurrence; that the ocular account being in line with the medical evidence proves the charge against them when it is also corroborated by their abscondence. The learned counsel next submitted that even if for a while it is conceded that one of the appellants was driving the car and as such could not have fired at the deceased, yet he for having shared common intention with his co-accused has to be treated at par with them. The learned counsel to support his contention placed reliance on the case of Fayaz Hussain Shah v. The State (2002 SCMR 1848). 5. I have gone through the record carefully and considered the submissions of the learned counsel for the parties. 6. Before I discuss the case, I would like to know what is investigation, what is the purpose behind it and whether any investigation worth-the-name has been made in this case, if so, what was found consequent upon that. 7. The expression 'investigation' as defined in 4(1)(i) of the Cr.P.C. Includes all proceedings under this Code for collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorized in this behalf. But as is apparent from the tenor of the words used therein, it is not exhaustive. The word as defined in Blacks Law Dictionary means the process of inquiring into or tracking down through inquiry. According to ordinary dictionary meaning, it means carrying out a systematic or formal inquiry into an incident or allegation so as to establish truth. This expression as defined in Corpus Juris Secundum means "a minute inquiry; a scrutiny; a strict examination; the action or process of searching minutely for truth, facts, or principles". In any case it is a systematic inquiry into an incident or allegation so as to establish its truth. But it is most unfortunate that investigation in our country has become synonymous with collection or creation of evidence in support of what has been alleged in the F.LR regardless altogether of the fact that more often than not it neither rings true nor conforms to common human experience and observation nor fits in with the surrounding circumstances. Who is behind the crime and what are
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the circumstances which led to its commission are the questions which are almost invariably left unattended and unexplored notwithstanding this is what it stands for. It, thus, has been reduced to a formality to be fulfilled without application of mind with the result that actual facts remain shrouded in a mystery without having the fortune of seeing the light of the day. While the Courts of law entrusted with the job of administering justice in criminal cases land in complete confusion despite conducting trials and inquiries because even there the concern of the witnesses of the parties and even the lawyers representing them is to reiterate a tutored or parroted story supporting their version. Actual facts are so much confounded with the admixture of falsities and exaggerations that it becomes next to impossible for the Court to arrive at any conclusion much less just. 8. The case I am faced with is one that type. Here too the Investigating Agency accepted as gospel truth what was stated in the F.I.R. No effort whatever was made to find whether the allegation that the deceased and the injured P.Ws. Sitting in the Pick-up were fired at by all the appellants from a car driven alongside it could be true and capable of happening in the manner described by the Prosecution when one of them being on the other side was driving the car at relevant time. From the number of injuries found on the dead bodies of the deceased and on the persons of the P.Ws. It was presumed that it was caused by the appellants in spite of the fact that this number of injuries and even much greater could well be caused by one man with an assault rifle like Kalashnikov No effort was made to recover empties and to ascertain whether the incident was an adventure of one man or more than one. No effort was made to find whether the charge against all of them was based on truth or exaggerated on account of previous blood feud. It has thus become difficult to say that each of the appellants is guilty, though it is equally difficult to say that all of them are innocent. The more so when it is too common and customary in this part of the country to throw wide the net of implication to rope in even those who have no hand in the commission of the crime but are related with those who are actually responsible for it. 9. Be all that as it may, now the question whether Mubarak Zeb, injured P.W. Could see and identify the assailants when he was admittedly sitting in the Pick-up with his back towards them and the act of firing took place of a sudden in quick succession from a moving car which did not stop even for a while. My answer to this question shall be in negative, particularly when it is not the case of prosecution that the car was stopped and that the P.Ws. After alighting from the Pick-up had a chance to see and identify the assailants sitting in the car. Failure on the part of the P.Ws. To specify the weapons, the assailants were armed with, will give added strength to this answer. 10. It is true that the presence of P.Ws. Mubarak Zeb, cannot be doubted in view of the stamps of injuries on his person, but truer is the fact that mere stamps of injuries on the person of a witness per se will not guarantee the truth of his statement when it being replete with exaggerations and improbabilities lacks the intrinsic probative worth. It was held in the cases of Mehmood Ahmed and 2 others v. State 1995 SCMR 127, and Said Ahmed v. Zamured Hussain and 4 others 1981 SCMR 795, that mere fact that the eye-witness was having stamps of injuries on his person will not be indicative of having told the truth notwithstanding they could not be self-suffered. The fact that the P.W being a nephew of one of the deceased in an interested witness would further add to his disqualification to be a credible witness. 11. Next comes the testimony of Alamgir. Before I discuss its admissibility and probative worth, I would like to see whether his statement recorded under section 512 of the Cr.P.C. Has been brought on the Sessions record in accordance with the provisions of Article 47 Qanun-e-Shandat Order, 1984. The record reveals that non-bailable warrants were issued against P.W. Alamgir to ensure his presence in the Court. The search witness executed the warrants and submitted his reports Exh.S.W 2/3 and Exh.S.W.2/4 showing that the P.W. Has shifted to an unknown place in Karachi. But a perusal of the reports mentioned above weald reveal that no effort muchless serious was made to inquire
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about the whereabouts of the said P.W. The entire process was treated to be more of a formality than a search in real sense of the word as could satisfy the requirements of Article 47 of the Order. A comparison between the alleged signature of Ibrar on Exh..S.W.2/3 and the one on Exh.S.W.2/4 would reveal that they are forged as the former being in English seems to have been made by an educated man while the latter being in Urdu, seems to have been made by an illiterate person who has learnt nothing but to sign in Urdu. It thus irresistibly proves that reports being prepared in the Police Station are prima facie fake and false. 12. Who does not know that a statement recorded under section 51.2 of the Cr.P.C. Or any deposition given by the witness in a judicial proceedings can only be admitted into evidence in subsequent proceeding where it is established on the record by adducing strict proof that the witness was incapable of giving evidence or that his presence could not be secured without an unreasonable amount of delay or expense. In the case of Ali Haider v. The State (PLD 1958 SC 392), it was held by the Hon'ble Supreme Court that where there was a flagrant disregard of the provisions of section 33 of the Evidence Act now Article 47 of the Order, in transferring statements of the prosecution witnesses in question to the Sessions record, without laying down the foundation for that course, by adducing strict proof that the witnesses were incapable of giving evidence or that their presence could not be secured without an amount of delay or expense which under the circumstances of the case, was unreasonable, such statement could not be admitted into evidence. Even otherwise, a statement of a witness recorded under section 512 of the Cr.P.C. Cannot be equated with the one recorded in the presence of the accused and subjected to the test of cross-examination which perhaps is the only engine in view of deteriorating standards of investigation as highlighted above for bringing the truth into light. It therefore follows that the testimony of P.Ws. Alamgir being inadmissible is of no worth to the prosecution. 13. When the testimony of P.W. Mubarak Zeb is marred by the taint of interest, exaggeration and improbabilities and that of P.W. Alamgir is rendered inadmissible for failure to comply with the provisions of Article 47 of the Order, I am left with no evidence much less trustworthy to maintain the conviction of the appellants. Needless to say that it is better to acquit ten guilty than to convict one innocent. The case of Fayaz Hussain Shah v. The State (supra) because of having c.Ifferent and distinguishable fact will have no relevance to the case in hand. 14. For the reasons discussed above, this appeal is allowed, the convictions and sentences recorded by the learned trial Court are set aside and the appellants are acquitted of the charge. They be set free forthwith, if not required in any other case. 15. Since I have allowed the appeal, Criminal Revision will lose its utility, therefore, it is dismissed. (Sd.) EJAZ AFZAL KHAN, J SHAHZAD AKBAR KHAN, J.---On the occurrence of difference of opinion between my brothers Honourable Justice Ejaz-ulHassan Khan and Honourable Justice Ejaz Afzal Khan, the hearing of this case for the resolution of difference of opinion was assigned to me. On 11-7-2005, the learned counsel for the parties argued the case at length. As the facts and circumstances of the case have been elaborately set forth in the judgment authored by his Lordship Mr. Justice Ejaz Afzal Khan, therefore, the same need not be repeated. 2. The broader outlines of the crime, however, relevant for the purpose of this judgment are that as per version of the complainant Mubarak Zeb, the appellants made an attack by firing on the Datsun Pick-Up bearing No,626-DMR in which the complainant, Alamgir Conductor of the Vehicle, Muhammad Wahid, the maternal uncle of complainant and Taza Khan driver, were going to their village 'Navey Killey'. The complainant and Alamgir were sitting on the rear while Abdul Wahid was occupying the front seat along with driver Taza Khan. The attack was launched by the appellants from a Motorcar which was driven closer to the victim vehicle. As a result of firing, Muhammad
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Wahid died at the locus, i,e, inside the vehicle instantaneously, while the driver, the complainant and Alamgir Conductor received fire-arm injuries. The driver, however, could survive for some time and died in the hospital. On receiving injuries, he was not in a position to talk. The motive that triggered the occurrence was a bloody strife between Muhammad Wahid and the appellants. On the eventful, day, the deceased Muhammad Wahid had gone to attend the Court in connection with a criminal case pending determination against him. 3. After the occurrence, it appears, that the appellants evaded their arrest and after completion of proceedings of executing warrants under section 204, Cr.P.C. And the proclamation in terms of section 87, Cr.P.C., proceedings under section 512, Cr.P.C. Were initiated during which the statements of Mubarak Zeb complainant and Alamgir Conductor of vehicle were recorded, as both were the injured witnesses of prosecution. On arrest of the appellants when the trial commenced, Mubarak Zeb complainant appeared as P.W.2. He recorded his statement as an eye-witness to the occurrence and recounted the entire version of his first information which was reduced into the form of a Murasila by Hashim Ali Khan P.W.6 and was culminated into the registration of case. Alamgir P.W. Was, however, not traceable as he had shifted his abode to some unknown place. On the failure of efforts to procure his attendance, the learned trial Court on recording the statement of Jamshed LHC No, 779; transferred his statement to the Session's file on 26-7-2002. The detailed reasons for making a resort to the transfer of statement to the file of trial Court are given in its judgment. It may be recalled that the transfer of statement of Alamgir was called in question before this Court in a Quashment Petition No,161/2002 which was dismissed by a learned Single Bench holding that in the circumstances the transfer of the statement of Alamgir recorded under section 512, Cr.P.C. To the Session's file was rightly ordered. The learned trial Court believing in truthfulness of the statement of Mubarik Zeb and on considering the ambient circumstances recorded the impugned conviction and sentences. 4. The learned counsel appearing for the appellants has argued that the statement of Alamgir recorded during the proceeding under section 512, Cr.P.C.. Was wrongly transferred to Session's file as no serious efforts in accordance with law were made to procure his attendance and, as such, transfer of his statement appears to be tainted with element of haste. However, without conceding, even if its transfer is taken to be correct, such a statement cannot be equated with a statement which is recorded during the course of trial with an opportunity to the accused to cross-examine the witness. He also assailed the statement of Mubarik Zeb P.W.2 on the ground that in context of previous enmity between the appellants and Muhammad Wahid deceased (maternal uncle of Mubarik Zeb), he assumes the character of an interested witness and, as such, his testimony cannot be accepted without some independent unimpeachable corroborative evidence which, according to the learned counsel, is lacking in the instant case. He contended that although Mubarik Zeb received injuries in the instant case, but the same cannot be taken as a guarantee for considering his statement to be true. On these features of the case, the learned counsel placed reliance on the cases reported as Ghulam Sarwar v. The State (PLD 1983 Peshawar 152), Zaab Din and another v. The State (PLD 1986 Peshawar 188), Attaullah and others v. The State (PLD 1990 Peshawar 10) and Fida Hussain and another v. The State and another (2004 PCrL.J 2052). For discrediting the testimony of Mubarik Zeb, the learned counsel urged that when an attack is made from a moving vehicle, it is hard to accept that the assailants could be identified. His next argument was that out of the three persons mentioned by P.W. Mubarik Zeb as assailants, one must have been driving the vehicle and the making of firing by the driver would be beyond possibility. He also introduced a hypothesis, probably for the first time as the judgments of my brothers do not bear any comment on such type of argument, stating that Muhammad Wahid and Taza Khan had received some injuries on the left sides of their bodies, therefore, it appears that the attack was launched on the victim vehicle from both the sides and on such a situation, the
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testimony of Mubarak Zeb P.W. Would not fit in the circumstances. He also argued that no empty was recovered from the spot. The last limb of his arguments was that the factum of abscondence, even if proved, cannot by itself, be made basis for conviction. 5. On the other hand, the learned counsel appearing for complainant has argued that Mubarik Zeb is a natural witness and his testimony is true and confidence inspiring because it finds support from medical report and statement of Alamgir. It was vehemently urged that no infirmity or inconsistency is existing in the statement of Mubarik Zeb and that it was rightly taken into consideration by the learned trial Court. Abscondence was also pleaded as a corroborative piece of evidence against the appellants apart from motive of the existing blood feud between the deceased Muhammad Wahid and appellants. 6. The learned counsel for…
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