Muzaffar Khan Vs The State

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

Cr. A NO.114-A of 2012

JUDGMENT

Date of hearing........................17/10/2017.......................................................... Appellant...(Muzaffar Khan and another) by Mr. Fazal-i-Haq Abbasi, Advocate............................... Respondent...(The State etc) by M/S Raja Muhammad Zubair, AAG alongwith Qazi Shams-ud-Din, Advocate...................

SYED MUHAMMAD ATTIQUE SHAH, J:-

Through this single judgment, we shall dispose of two criminal appeals and one Criminal revision petition, as the same arise out of single case FIR No.359 dated 22.09.2009 under Sections 302/324/148/149 PPC, Police Station Khalabat Township, Haripur. The details are mentioned below:

Criminal Appeal No.114-A/2012,

filed by Muzaffar Khan and Muhammad Ashraf, appellants against their conviction and sentence, Criminal Appeal No.121-A/2012, filed by Waheed Ahmad and Painda Khan, complainant against

acquittal of said appellants under sections 324/337- A(i)/148/149 PPC alongwith co-accused Muhammad Aslam, Muhammad Iqbal, Muhammad Tamraiz in the case, vide judgment dated 11.08.2012 and Criminal Revision No.28-A/2012 filed by complainant etc for enhancement of sentence awarded to the appellants in the case, mentioned hereinabove.

2.The facts as narrated in the FIR, which was lodged by Waheed Ahmad, complainant on 22.09.2009 at about 2120 hours in Emergency Ward of DHQ Hospital, Haripur, are that at about 06.30 PM, he alongwith his maternal uncles, Muhammad Aslam and Rustam sons of Painda Khan, his brother PW Saeed and his co-villager, Abdur Rehman son of Fazal-ur-Rehman, who came there for purchase of some electrical items, was present in his electrical shop in Gandaf Bazaar. The complainant’s uncles were talking to him, when in the meanwhile, Muzaffar, Ashraf sons of Ali Haider, Iqbal son of Gul Zaman, Tamrez son of Sher Muhammad, duly armed with pistols came there. Appellant Muzaffar fired

from his pistol, which hit his uncle, Muhammad Aslam, who sustained injuries and died on the spot.

Appellant Muhammad Ashraf fired on his maternal uncle Rustam Khan, who also sustained injuries. The complainant and his brother Seed went towards their uncles to pick them up, when Iqbal son of Gul Zaman and Tamrez son of Sher Muhammad made firing, as a result thereof, the complainant sustained injuries and his brother was also hit on his head with some object.

The occurrence was seen by the complainant, his brother Saeed, Abdur Rehman son of Fazal-ur- Rehman resident ofÒGandaf and the people. Injured uncle Rustam succumbed to his injuries on his way to hospital. The motive for the occurrence was annoyance of accused party due to divorce of Mst.

Tazeem Bibi sister of Muzaffar by his uncle Muhammad Aslam and family case was pending in the Court at Haripur. On the report of Waheed Ahmad complainant, in Emergency Ward of DHQ Hospital, Haripur to the police, case under Sections 302/324/34 PPC was registered against the appellants

and acquitted co-accused in Police station Khalabat Township (KTS) Haripur, vide FIR No.359, dated

3.It may be mentioned here that earlier convict- appellant Muzaffar Khan in injured condition also lodged report to the police in Emergency Ward of DHQ Hospital, Haripur against five persons of complainant party including Waheed Ahmad, complainant in the present case. The said case was registered vide F.I.R No.358 dated 22.09.2009 under sections 324/148/149 PPC, wherein, said Muzaffar

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Khan stated that he alongwith Muhammad Ashraf and Muhammad Iqbal was present on his shop in Gandaf Bazaar. Waheed, Saeed and others, while usually playing football with other persons, they used abusive language over there. In this regard, he submitted an application to Police Post Swabi Maira. In the evening, Rustam, Javed sons of Faizo and Muhammad Asalm son of Painda duly armed with pistols and Waheed, Saeed and Sajjad sons of Abdul Rasheed alongwith Dil Muhammad son of Fazal-ur-

Rehman duly armed with spades launched attack on them. Rustam started firing with his pistol, as a result thereof, Muhammad Aslam sustained injuries on his abdomen. Javed was making aerial firing and other accused also caused injuries with the spades to complainant Muzaffar Khan and others. The occurrence was witnesses by the complainant and others present on the spot. Motive for the occurrence was the divorce of sister of complainant Muzaffar Khan by Muhammad Aslam.

4.After the completion of investigation,

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challan was submitted against the appellants and acquitted accused Muhammad Aslam, Muhammad Iqbal, Muhammad Tamraiz for trial. All the accused were formally charged to which they pleaded not guilty and claimed trial. The learned trial Court on conclusion of the trial, convicted appellants Muzaffar and Ashraf under section 302(b) PPC and sentenced them to undergo imprisonment for life with benefit of Section 382-B Cr.P.C., while they were acquitted under sections 324/337-A(i)/148/149 PPC and the

remaining three accused were acquitted from the charges leveled against them in this case, vide judgment dated 11.8.2012

5.At the trial, the prosecution produced twelve witnesses to prove guilt of the present appellants alongwith acquitted co-accused, which included Khalid Mehmood, Constable No.71 (PW-1), who had taken parcels of case property to the FSL through Road Certificate No.201/21, handed over to him by Moharrar of the PS on 02.10.2009; Muhammad Arshad, Maddad Moharrar appeared as (PW-2 and PW-3) and stated I that he had chalked out FIR (Ex.PA) on receipt of Muraila (Ex.PA/1); Babar Khan, Inspector (PW-4) had submitted complete challan against the accused before the Court for trial;

Nazir Muhammad IHC (PW5) was marginal witness to recovery memo (Ex.PW 5/1) vide which the I.O had taken into possession blood stained clothes of both the deceased Rustam Khan and Muhammad Aslam alongwith clothes of injured Waheed Ahmad sent by the doctor, which were packed and sealed in

separate parcels; he was also marginal witness to recovery memo (Ex.PW 5/2) vide which the I.O had taken into possession two phials containing spent bullets recovered from the dead body of both the deceased, which were sealed into the parcel; Dr.

Sajawal Khan, Medical Officer appeared before the Court as (PW-6) and stated as under::

“On 24.09.2009 at 0945 PM, he examined injured Saeed Ahmad son of Rasheed Muhammad, aged about 30/31 years, resident of Marri, PS KTS and found the following:

1.1/3" lacerated wound bone deep on right side after scalp with swelling around the wound.

2.Patient hasI omitting but pupils were normal Duration: fresh. Blunt Object nature of X-ray, patient was admitted.

His report is Ex.PW6/1 on the reverse of injury sheet prepared by the Police. On the same day at 0935PM, he examined Waheed son of Rasheed Muhammad aged about 25/26 years, r/o Marri and found the following:

1.1cm x 1cm injury wound on right of chest near axilla.

2.1cm x 1cm entry wound on upper part of chest on right side 1 inch below clavicle.

3.3/4 cm x 3/4 cm entry wound on back of chest on scapula on right side. Duration: Fresh. Weapon Firearm, patient was referred to Ayub Medical Complex for further treatment. His report is Ex.PW 6/2 on the back of injury sheet prepared by police.

On the same day, he examined the dead body of Muhammad Rustam son of Painda Khan, caste Abbasi, r/o Gandaf aged about 42/43 years brought by Additional SHO PS KTS and identified by Dr. Haroon and Muhammad Ishafaq. The body was examined on 22/09/2009 at 2245 PM and was brought on the same night at 2215 PM whereas Rustam Khan succumbed to is injuries as per information on 22/09/2009 at 2120 PM. One bullet weighing 4.955 grains was recovered during Post Mortem and handed over to Police in a sealed bottle. On external examination, he found dead body of young man lying flat, rigor mortis not developed. He found the following injuries.

1.1cm x 1cm entry wound on posterior lateral side of the left lumber region.

2.1cm x 1cm entry wound on left side on anterio/lateral aspect of the abdomen just about iliac crest.

3.1cm x 1cm exit wound on the right side of pubic area 11⁄2 inch above the penis.

4.1cm x 1cm exit wound on the right groin 2 inch below wound No.3.

5.1cm x 1cm entry wound on the posterior side of the right thigh just in the middle.

6.Bullet recovered from the anterio lateral aspect of the right thigh in the middle (being exit) On internal examination, he found scalp and thorax area intact however, on internal examination of abdominal area, he found walls injured. Perineum injured. Stomach intact. Small intestine and their contents injured. Large intestine and their contents injured. Bladder injured. He also found injuries to muscles at sites of wounds. Profuse blood lost in the abdomen aggravated by injury to intestine and urinary bladder

caused death all due to firearm injury (injuries).

Time between injury and death: about 3 hours.

Time between death and postmortem: 3 hours. Postmortem report consisting of 6 pages including pictorial is in his handwriting, which is Ex.PW 6/3 and is correct. He also endorsed the inquest report produced by the police before PM examination, his endorsement is Ex.PW 6/4 which he endorsed after the compliance. Similarly, he also initialed on the injury sheet of deceased prepared by police. His endorsement on it is Ex.PW 6/5. He handed over the PM report alongwith sealed bottle containing spent bullet recovered from body weighing 4.955 grain to police and obtained signature of police official on the report.

On 22/09/2009, he also examined dead body of Muhammad Aslam son of Painda Khan r/o Sarrain Gandaf aged about 32/33 years brought by police identified by Dr. Haroon and Muhammad Ashfaq. The dead body was brought on 22/09/2009 at 2215 hours whereas the death occurred of the deceased on 22/09/2009 at 0630 PM. He examined the dead body of the deceased on 22/09/2009 at 2345 PM.

One bullet weighing 4.804 grains was recovered from the body which was sealed in a bottle and signed and handed over to police.

On external appearance body of young man was lying flat, rigor mortis partially developed. He found the following. Injuries:

1.1cm x 1cm entry wound on front of chest on right side 3 inch above and medial to right nipple and 3 inch lateral to the sternum.

2.Exit wound 1 cm x 1cm on left side of chest 2 inch below axilla in mid auxiliary line.

3.1 cm x 1cm entry wound on medial side of left upper arm in the line with wound No.2.

4.Bullet recovered from the outer side of the left forearm 21⁄2 inch below the elbow.

On internal examination, he found thorax walls, ribs and cartilages walls injured, pleura injured, right lung damaged, left lung damaged, pericardium and heart damaged. Blood vessel injured.

On abdominal examination, he found stomach intact and empty other organs were found intact. He found injuries at sites of the wounds, fracture of left humorous.

In his opinion, injury to vital organ due to firearm injury caused due to sudden shock and death.

Time between injury and death:

Instantaneous.

Time between death and postmortem: About 3 to 6 hours.

Six sheets of PM report alongwith one bottle phial which was sealed & signed containing one bullet weighing4.804 grains handed over to police and obtained their signature on PM report. He has seen his post mortem examination report Ex.PW 6/6 consisting 6 sheets including pictorial which is in his handwriting and bears his signature correctly. He also endorsed the inquest report after compliance which is Ex.PW 6/7. Similarly, the injury sheet prepared by the police of the deceased Muhammad Aslam was also initialed by him after compliance, which is Ex.PW 6/8.”

Muhammad Ashfaq son of Muhammad Akbar (PW-7) was marginal witness to recovery memo (Ex.PW 7/1) through which the I.O had taken into possession blood stained mud and sand from the places of both the deceased alongwith two empties of 30 bore freshly discharged and sealed the same into parcels; Phul Bahadur IHC (PW-8) was marginal witness to recovery memo (Ex.PW 8/1) vide which the I.O had taken into possession two 30 bore pistols, produced by Muhammad Rafique, driver of appellants Muzaffar and Ashraf. He also produced two phials containing spent bullets recovered from the dead bodies of both the deceased and handed over the same to the I.O. He was also marginal witness to recovery memo (Ex.PW 8/2) through which the I.O had taken into possession blood stained garments of injured Saeed Ahmad; Waheed Ahmad Complainant (PW-9), injured eyewitness Muhammad Saeed (PW-10) appeared before the trial Court and reiterated all the events that happened during the occurrence as depicted in the report of complainant (Ex.PA/1) and

charged the appellants and acquitted co-accused for the offence; Muhammad Abbas SHO (PW-11) recorded the report of complainant Waheed Ahmad and reduced the same into Murasila (EX.PA/1). He also prepared injury sheets of injured and both the deceased as well as their inquest reports (Ex.PW 11/1 to Ex.PW 11/6); and finally the investigating officer Saeed-ur-Rehman (PW-12), also recorded his evidence.

6.The appellants alongwith acquitted co- accused recorded their statements under Section 342 Cr.P.C. denying their) involvement in the commission of the offences for which they were charged.

However, they wished not to be examined as their own witnesses on oath in rebuttal of charges against them within the contemplation of section 340 (2) Cr.P.C.

7.Arguments of learned counsel for the parties heard and perused the record of the case with their able assistance.

8.At the very outset, it may be mentioned here that appellant Muzaffar Khan had passed away during pendency of present appeal, thus, the proceedings against him in the present case stands abated.

However, this Court would discuss the case of other appellant-convict, Muhammad Ashraf, who is charged for murder of deceased Muhammad Rustam.

9.The most significant evidence in the prosecution’s case against the present convicted appellant, Muhammad Ashrf is the testimony of the complainant Waheed Ahmad (PW-9) and

eyewitnesses Muhammad Saeed (PW-10). When this Court reviews the stance taken by them, firstly at the time of reporting the occurrence to the police and secondly before the Court, it is obvious that their testimony does inspire confidence in relation to charging the present convict-appellant for firing at deceased Muhammad Rustam. They both gave consistent, natural and straightforward ocular account of the occurrence. The defence subjected them to a lengthy searching cross-examination but their

testimony remained unshaken and un-shattered. There was absolutely nothing in their cross-examination to show that the convict-appellant was falsely implicated in the case. The presence of the said witnesses on the spot was also proved in the present case, as they both were charged by the accused party in cross-case registered vide FIR No.358 for causing injuries with the spades, wherein, the present appellant-convict Muhammad Ashraf also received injuries. Both these P.Ws were shown in site plan and specific point had been given to them in the cross case. Thus, presence of these P.Ws has been well established on the scene of occurrence. There were found few minor discrepancies in the statements of the PWs but these being immaterial and natural and very trivial in nature could not adversely affect the credibility and truthfulness of their testimony. Reliance is placed on case titled ‘Ranjha Vs. The State’ (2007 SCMR 455) and ‘Sheraz Khan Vs. The State (2010 SCMR 1772).

10.The testimony of these witnesses has duly been corroborated by the recovery of blood of the

deceased from the place of occurrence, his blood stained garments and recovery of crime empties and 30 bore pistol from appellant and positive reports of FSL and Firearms expert. The said recoveries have been duly proved during trial through recovery witnesses and nothing adverse could be achieved despite cross-examination. The medical evidence produced by the prosecution also supported and corroborated the testimony of the eyewitnesses and no contradiction at all could be pointed out by the defence. Reliance is placed on case titled ‘Haroon Rasheed vs. The State’ (2005 SCMR 1568), Sh.

Muhammad Abid Vs. The State (2011 SCMR 1148) and Nasir Iqbal Vs. The State (2016 SCMR

11.The motive alleged by the prosecution in the present case is the same, which was asserted by the present accused party in cross-case. The eyewitnesses have been able to persuade this Court regarding their veracity, worthiness and truthfulness in respect of their presence at the time of occurrence and their

narration as to the mode and manner thereof as well.

Motive asserted by the prosecution was also admitted by the accused during investigation and at the time of trial as well. Reliance is placed on case titled ‘Muhammad Javed Vs. The State’ (2015 SCMR 864). The charge in the matrix of the case stood proved against appellant Muhammad Ashraf beyond any shadow of doubt. This Court, therefore, feels no hesitation to hold that the appellant was rightly convicted and sentenced by the learned trial Court.

The impugned findings being free from any infirmity are not open to any) interference by this Court in its Appellate jurisdiction. This Court is of the firmed view that the prosecution has proved its case against the convict Muhammad Ashraf beyond reasonable doubt in the light of confidence inspiring testimony furnished by complainant (PW-9) and eyewitness (PW-10), which was duly supported by medical evidence and corroborated by recovery of incriminating articles. Thus, the conviction and sentence awarded by the learned trial Court to the

appellant in the peculiar facts and circumstances of the case are maintained.

12.For the reasons discussed above, this appeal being without any substance is thus dismissed.

13.Now coming to the case of acquitted accused/ respondents in Cr.A No.121-A/2012, it is held that the order of acquittal recorded by the learned trial Court with respect to offences under sections 324/337-A(i)/148/149 PPC was based on proper appreciation of facts and circumstances of the case, as in the absence of trustworthy, reliable and confidence inspiring evidence and particularly non-availability of corroboratory evidence like medical evidence, recovery of weapon of offence, recovery of blood and empties from the spot, the learned trial Court could not convict them. Thus, this Court concurs with the findings rendered by the learned trial Court to the extent of acquittal of present appellant Muhammad Ashraf alongwith other co-accused Muhammad Aslam Khan son of

Khan Bahadur, Muhammad Iqbal son of Gul Zaman and Muhammad Tamrez son of Shair Muhammad charged for the offences under section

324/337-A(1)/148/149 PPC.

14.So far as the enhancement of the sentence awarded to appellant by the learned Additional Sessions Judge, Ghazi, Camp Court Haripur is concerned, this Court observes that the record in the light of the evidence and submission of the counsel for the parties, the reason rendered by the learned trial Court for not awarding capital punishment of death was very much convincing, plausible and finding of the learned trial Court in this regard being unexceptional is maintained. Hence, Criminal Revision No.28-A/2012 filed by petitioners is dismissed.

JUDGE

Announced. JUDGE Dt.17 /10/2017.

/*M.Saleem*/