Nausher Khan Vs The State etc

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JUDGMENT SIIEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCII.

(ludicial Department) Cr.A. No. 212-B12018.

Nausher Khan.

Vs:

The State etc.

JUDGMENT

Date of hearing: 13.01 .20X.

For appellant: Mr. Muhammad Rashid Khan dirmakhel, advocate.

For the State: Mr. Najibullah Khan Marwat, Asstt:A.G.

For Respondents: Syed Farkhrud Din Shah advocate.

ABDUL FAYAZ.I.-

1.At a trial held by the learned Additional Sessions Judge- IV, Bannu, respondent/accused namely Zohaib s/o Madamir Jan r/o Bheri Khel Tehsil and District Bannu, was acquitted from the charges leveled against him, by the learned ibid court vide judgment dated 06.11.2018 in Sessions Trial No. 173lSC of 2016/17, in a criminal case vide F.I.R No.582 dated 18.09.2015 under section 302PPC, Police Station Mandan, District Bannu.

2.Feeling aggrieved, the appellanUcomplainant Nausher Khan has questioned the legality of the impugned judgment of acquittal ofrespondent Zohaib Khan through instant appeal.

3.Succinct facts of the case, as set out in the FIR, are that on 18.09.2015 at about l0:00 p.m, the complainant brought the dead body of his son, Mohib Niaz, to Civil Hospital, Bannu, and reported the matter to the police. He stated that on the same night at about 9:00 p.m, he along with his deceased son and other inmates was present in his house when someone knocked t.\ at the door. Upon this, the complainant and his son came out where the accused Zohaib Khan was present, duly armed with a Kalashnikov, who immediately resorted to firing at the deceased. The complainant rushed to his son, however, he succumbed to the injuries at the spot. The motive alleged was a previous altercation between the deceased and the respondent some days prior to the occurrence. The said report of the complainant was reduced into writing in the form of Murasila Ex.PW-l/I, on the basis whereof the aforementioned FIR was registered.

4.After completion of investigation, challan against the respondent was initially submitted under section 512 Cr.P.C.

Thereafter, upon arest of the respondant/accused on

18.10.2016, a supplementary challan was submitted before the leamed trial Court. The accused was summoned, supplied with copies of the documents in accordance with section 265-C Cr.P.C, and charge was framed against him. In support of its case, the prosecution examined as many as ten witnesses. The accused was examined under section 342 Cr.P.C., wherein he opted to be examined on oatl and also wished to produce defence evidence; as such, he was examined under section 3a0Q) CI.P.C. and also led defence evidence. After hearing arguments, the learned trial Court, vide impugned judgment dated 06.11.2018, acquitted the respondent. Hence, the appellant/complainant assailed the acquittal through the instant criminal appeal.

5.We have heard learned counsel for tlte appellant- complainant, leamed 4sst1, ,Adyocatq General and leamed counsel for the respondent-accused at length and have carefully re-appraised the entire evidence available on record. We have also perused the impugned judgment of acquittal of leamed trial court with the assistance of leamed counsel and examined whether the acquittal recorded by the learned trial Court is sustainable in the eyes of law.

6 It is settled law that although an order of acquiual carries a presumption of innocence, such presumption is not sacrosanct. Where the judgment of acquittal is found to be the result of misreading and non-reading of evidence, wrong application or misapplication of law, or where the conclusions drawn are perverse, artificial or against the record, the appellate court is not only empowered but duty-bound to re-appraise the evidence and to reverse the acquittal in order to prevent miscarriage of justice.

7.The impugned judgment of the leamed trial Judge, when examined in the light of the evidence available on record, t reflects selective appreciation; undue emphasis on insignificant discrepancies, and complete non-reading of material prosecution evidence, which has resulted in an erroneous acquittal.

8.The factum of occurence and homicidal death of Mohib Niaz stands firmly established from the prosecution evidence and is, in fact, not seriously disputed. The prosecution examined PW-6 (Dr. Tariq Nawaz), who conducted the post- mortem examination and found numerous firearm entry and exit wounds on the head, abdomen, chest and other vital parts ofthe body, including fracture ofskull bones and exposure of

brain matter. He categorically opined that death had occurred due to multiple firearm injuries and hemorrhage. His testimony remained unshaken and fully corroborates the prosecution version regarding the manner of assault. The leamed trial Court has also not doubted the homicidal nature of death. Thus, the prosecution has conclusively proved that Mohib Niaz met a violent and unnatural death as a result offirearm injuries.

9.The central question is regarding the identity of the assailant. The prosecution relies primarily upon the ocular account furnished by PW-8 (Nausher K*), complainant and father of the deceased. His presence at the scene is most natural, as the occurrence took place at the threshold ofhis own house when he and his son came out on hearing a knock. He has consistently stated from the inception that the respondent Z,oharb Khan, armed with Kalashnikov, fired at his son in his presence. His statement in Court is in line with the prompt report lodged at the hospital and finds support from the site- plan and recoveries from the spot. Nothing has been elicited in cross-examination to show that he was not present or tlat he had any reason to falsely substitute the real culprit.

10.It is a settled principle that evidence is to be appreciated as a whole and minor discrepancies are to be ignored unless

k they go to the root of the matter. We find that PW-8 (complainant) remained consistent on all material aspects, namely the time, place, manner of occurrence, weapon used and identity of the accused. The variations pointed out by the defence relate to peripheral matters and are natural with passage of time. The learned trial Court discarded his testimony on speculative notions regarding his conduct and supposed improbabilities, which approach is against the settled canons of criminal jurisprudence. A father who witresses the murder of his real son cannot be expected to react in a stereotlped manner, and his conduct cannot be judged by imaginary standards

11.Even otherwise, it is a settled principle of law ,that conviction can safely be based on the testimony of a solitary witress, if the same is found to be natural, straightforward and confidence-inspiring. In the present case, the ocular account furnished by PW-S (complainant) fully satisfies this test.

Reliance in this regard is placed orl case uljaz Ahmad v. The State and others' 12022 SCMR 15771, the relevant portion of the judgment is reproduced hereunder:-

"7. Now coming to the second eptsode of the prosecution story, Shabbir Ahmad, complainant (PW-7) got recorded his statement with respect

sD$ aq uaq$ tl1onadsa Dqtotq pil sltt {o bptnw pattlutuoc satl oqm '4td1nc lDil aqt So tal puD asDc ruasatd aqt u! nuo141ad aLfi paqo^u! rQaspl saq Tuoulo1dwox aLfi rCq*t ot sD uosDat tuo fio tutod tou ppoc nuo147ad ary nl Tasunoc pau.ma7 'asDc aq, u! pasn)co aqt aloct1dwr tQas1o/ ot pn)il aqt uo paqslnotsa st il1t14. lll ,ro tQlwua snolold ssalun sassauilM. qcns lo ttuoullsag atfi p"tDcstp o1 puno8 D aq louu0c pasoacap aW qtli4 sassauiltt4 uogncasotd aqt lo dtt1suot1o1a"t anw tDtlt uo1 lo a1d1cu1ld paqsqqo$a ila$ D &ou tq .rI tt 'pautacuoc s! huol4tad aql lo uor1nnuoc ulD$ns ot pa\arPq aq puuD) t(uouqsa| sll 'anlanqt 'pasoacap aqt to ntlprq sDl Tuoum1dwoc allt tDqt uoltsanb aqt so "tol sV ',(tots uol4ncaso.td aLfi tltt$ aml u! st auos aqt 'pauncuo) s! nuaplia p?lpau aqt sD tol og tt'stailDru qc!.Lm tluuonb aqt pu puD acuaplna lo rt4pnb aW s! t, :anDilat s! aq ruqt pag[s11os s1 1,moct1 'ssautltw a18uts o lo tuotutlsay I aqt uo pasDq aq uDc asD) "taptnu D u! ua^a uoltc!^ttoc,t tDtlt pptl tQ1ncEllcads sDq (gzt U4ICS I I1d arDts '^ utCI pn zDlN u! trnoJ slqJ 'uortcliuoc ulDtsns ot Tuatcgffns ^sl 'Eu1,t1dsu1 acuapgfuoc punol 11 'uostad auo lo acuap!^a aqJ zcuap$a lo tltruonb aqt ,ou puD panplsuo) aq ol s! tlclql acuap!^a lo ,{q1onb aq, s! tt tDtlt mo1 {o a4d1cu1,td paqps D s! [ 'Eu1,t1dsu1 acuapllfuoc puo pnmtoltt1Slo"tts'alqDlpr st acuapaa sttl lDtu papnpum aq ,qalos uD) 4 'ato{ataqt 'tulod lolnpw tCno puo qcDa uo tua$lsuoc paulouar aH 'p.toca,t tto tlSnotq aq pp@ uol1ncasold aW q asn^po ro nuo141ad aqt ot a1qo"moml Sutt1tou ruq acualap aqt ,Q uoltDuluDxa-sso"tx tt1fiua1 o1 pa1ca{qns sDtft ssawlL uo!ficaso.td sn41 'nuo147ad aql to spuDtl aqt p nbnol lo np.mw ot pal q)ru& 'ytaua Tuanbasqns aqt ot

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apprehended at the spot after a chase of co-villagers. Substttution in such like cases ,s a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his brother and falsely involve the petitioner without any rhYme and reason. As we have held the commission of robbery doubtful due to lack of sufficient evidence, therefore, we are constrained to hold that the motive part of the prosecution is not proved. The recovery ,s also held to be inconsequential as no emPtY wos recovered from the place of occurrence.

So far as the quantum of punishment is concerned, the learned High Court while taking into consideration the fact that the petitioner only fired single shot coupled with the fact that motive has I not been proved and the recoverY is

inconsequential has rightly taken a lenient view and converted the sentence of death awarded to the petitioner into imprisonment for life. No further leniency can be shown to the petitioner."

12.So far as the contention of learned counsel that PW-8 Nausher Khan, being the father of the deceased, is a highly interested witless and his testimony is not worthy of reliance is concerned, the same is misconceived. Mere relationship with the deceased does not render a wifiless unreliable. It is settled by the superior Courts that unless animus or prior enmity suggesting false implication is established, a close relative is not to be discarded merely on that ground. Rather, such a witness is a natural witness, and his testimony is to be assessed

on its intrinsic worth. In the present case, nothing has been brought on record to show that the complainant had any reason to falsely implicate the respondent; therefore, his ocular account cannot be disbelieved solely on account of his relationship with the deceased. Reliance in this regard is placed on the case of Muhammad sadiq v. The state lz0z2 scMR 6901, wherein the Hon'ble Supreme Court ruled:-

as the question that the ",So fa, complainant was mother of the deceased, therefore, her testimony cannot be believed to sustatn conviction of the petitioner is concerned, it is by now a well established principle of law that tnere relationship of I prosecution witnesses with the deceased the

{ cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill wtll is established on the record to falsely implicate the accused in the case".

13.Besides Pw-8 (complainant), the prosecution extrmined a chain of witnesses whose statements are mutually consistent and inter-locking. PW-l (Wali Ayaz ASI) and pW-2 (Faridullah ASD proved the immediate reporting,preparation of injury sheet EX.PW-I 12 and inquest report EX.PW-1/3 and registration of F.I.R Ex.PW-2/I. PW-4 (Amir Kharr) identified the dead body of the deceased. PW-6 (Dr.Tariq Nawaz) established the nature and cause of death. PW-9 (Mirdaraz SI), the Investigating Officer, proved the spot inspection, recoveries

v of blood-stained earth, empties, bullets, clothes and preparation of site plan. PW-10 Qlafeez Ullah No.5881) proved shifting of the dead body and custody of articles. Nothing material has been shown to suggest that these witnesses were inimical or had any motive to falsely involve the respondent. Their statements, when read together, form a coherent and consistent chain supporting the ocular account.

14.The occuffence took place at the threshold of the complainant's house. The complainant and the respondent are admittedly co-villagers and well known to each other. In these circumstances, there is no question of mistaken identity or false substitution. We are not persuaded to believe that the respondent has been substituted for the real culprit, as substitution in such like circumstances is a rare phenomenon.

Reliance in this regard is placed on the case of Arshad Beg v.

The State 12017 SCMR 172fl,, wherein the Hon'ble Supreme Court has held:

" Even otherwise thts is a case of single accused and substitution in such like cases is a rare phenomenon as normally kith and kin of the deceased (in this case real brothers) would not implicate an innocent person by letting off the real culprits. Therefore, we hold that both the witnesses of ocular account were present at the spot and had witnessed the occurrence. "

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15.The ocular testimony of PW-8 (complainant) receives strong corroboration from medical and forensic evidence. The multiplicity, nature and location of firearm injuries fully support the allegation of repeated firing from a lethal weapon like Kalashnikov. The recovery of twenty-eight empties of 7.62 bore from the spot, blood-stained earth and clothes of the deceased further lends assurance to the prosecution case. The leamed trial Court misdirected itself by attempting to draw imaginary inconsistencies between ocular and medical evidence, whereas the medical opinion in fact reinforces the prosecution version. It is well settled that medical evidence is t corroborative and cannot override direct testimony unless it completely rules out the possibility of occurrence in the manner alleged, which is not the case here.

16.The plea ofdarkness and load-shedding has been unduly magnified by the leamed nial Court. PW-8 (complainant) categorically stated that there was bulb light at the spot and a bulb was recovered. Even otherwise, the respondent was admittedly a co-villager known to the complainant from before, therefore, the case is of recogrition and not of identification of a stranger. Recognition of a known person does not depend solely upon the intensity of light. The defence witress from

PESCO only produced a general log sheet which does not rule out the availability of local light. Thus, the plea of darkness does not create any dent in the prosecution case.

17.The defence version is not only weak but inconsistent. In his statement under section 342 Cn.P.C, the accused denied the entire occurrence, whereas, in his statement on Oath uls 3a0e) Cr.P.C, he admitted his presence in the village and leaving for abroad soon after the occurrence. He failed to produce any documentary proof in support of his alleged employment abroad. His unexplained departure and long absence from the locality after the incident is a relevant circumstance indicating consciousness ofguilt. A false defence, though not a substitute for proof, can be taken into as an additional circumstance lending support to tlte prosecution case,

18.As regards motive, the complainant stated that an altercation had taken place between the accused and the deceased some days prior to the occurrence. Even if motive is taken as not firmly established through independent evidence, it is well settled that where there is confidence-inspiring ocular account duly corroborated by medical and circumstantial evidence, failure to conclusively prove motive is not fatal. The

leamed trial Court erred in treating motive as the decisive factor despite availability of direct evidence.

19.A careful reading of the impugned judgment shows that the learned trial Court dissected the prosecution case piece by piece, instead of evaluating it as a whole. It gave undue importance to minor discrepancies, speculative conduct of the complainant and a weak defence plea, while completely overlooking the consistency of prosecution witnesses, medical corroboration and incriminating conduct of the accused. The acquittal, thus, appears to be the result of misreading and non- reading ofevidence and cannot be allowed to stand.

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20.Upon an independent and holistic re-appraisal of the evidence, we are satisfied that the prosecution has proved beyond reasonable doubt that on 18.09.2015 at about 9:00 p.m, the respondent Zohub Khan intentionally caused the death of Mohib Niaz by firing at him with a Kalashnikov. The charge under section 302 PPC stands fully established against him.

21.So far as the question of sentence is concemed, we have bestowed our most anxious consideration to the facts and circumstances of the case. The manner in which the respondent caused the death of an unarmed young man by repeatedly firing at him with a deadly firearm, resulting in multiple injuries on

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vital parts of the body of the deceased, unmistakably reflects the gravity of the offence, the degree of criminality involved and its devastating impact upon the victim's family as well as society at large. The use of a lethal weapon and the ferocity of the assault constitute serious aggravating circumstances which rule out any notion of undue leniency. However, while the appropriate quantum of punishment, the Court is equally bound to take into account mitigating factors emerging from the record. It appears that the occumence axose out of a single transaction; there is no material available to show that the respondent is a previous convict; and nothing has been brought on record to suggest that he is beyond the possibility of reformation. The case, therefore, does not fall within the category of the rarest of rare cases warranting the extreme penalty of death. Balancing the aggravating and mitigating circumstances in a judicious manner, we are of the considered view that the ends of justice would be adequately met by awarding punishment under section 302(b) PPC.

22.For the foregoing reasons, the instant appeal is allowed. The impugned judgment of acquittal dated 06.11.2018, passed by the leamed Additional Sessions Judge-IV, Bannu, in Sessions Trial No.l73lSC of 2016117, is hereby set aside.

Consequently, the respondent Zohub Khan is convicted under section 302(b) PPC and sentenced to rigorous imprisonment for life along with payment of compensation of Rs.500,000/- (Rupees five hundred thousand) to the legal heirs of the deceased under section 544-A Cr.P.C, which shall be recoverable as an arrear of land revenue. In default of payment of compensation he shall further undergo simple imprisonment for six (06) months. He shall also be entitled to the benefit of section 382-8 Cr.P.C. The respondent, present in court, shall be taken into custody forthwith to serve out the sentence.

Announced Dt:13.01.20256 tu, *Imranullah*PS

JUDGE

@.8) Hon'ble Mr. Justice Muhammad Tariq Afridi & Hon'ble Mr. Justice Abdul Fayaz.

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