Mir Afzal etc Vs The State

I

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

u LCIA lDe lmen

JUDGMENT SHEET

Cr. A No. 146-A/2021

Appellunt/s (Mir A/2ol & two others) by Mr. Shad Muhammad Khon, Advocote.

Respondent/s (The State) by M* Hina Javed Iqbal, Advocate, and complainant/respondent No. 2 by Mr, Yasir Mustafo Swati, Advocate.

Date of hearing I L04.2023.

MUHAMMAD IJAZ KHAN. J:-

Appellants namely Mir Afzal s/o Sikandar, and his two sons namcly Raja Sher Afzal and Khan Afsar sons of Mir Afzal have called in question the judgmcnt ol thcir conviclion and scntencc passed by the learned Additional Sessions Judge, Balakot, Camp Court at Mansehra datcd 05.06.2021, vide which appcllant namely Raja Sher Afzal was convicted r,rnder Section 302 (b) PPC and sentenced hirn to imprisonment lor life with ltne ol Rs. 200,000/- to be paid to the LRs of cleceased within the meaning of Section 544-A Cr.P.C, in clclhLrlt i,vhcrcol'hc r.vas

also ordered to flrrther undergo 06 months' simple imprisonment, while the appellant Mir Afzal was convicted and sentenced to undergo 05 years ll.l under section 324 PPC and to pay Its. 200,000/- as Daman to the injured Shoukat under scction 337-F(ii) PPC. Similarly, appellant Khan Afsar was also convicted and sentenced to undergo 05 years R.l under Scclion 324 ItI>C and to pay Ils.

100,000/- as Daman to the injured Banaris under section 337-A(i) PPC. Benefit of section 3tl2-l] Cr.P.C was extended to all the appellants.

2.Precisely the facts of the case are that the appellants laced trial in the V criminal case registered against them vide FIR No. 284 dated 21 .09.2014 under sections 3021324134 PPC at Policc Station Saddar, District Mansehra. As per prosecution story, on 21 .09.2014 at21:40 hours Banaris s/o Muhamrnad Ayub (complainant) 1n injured condition in

company of Sajid and Shoukat reportcd the matter to the police tn Emergency Ward of KATH, Mansehra by stating that on thc re levant clay thcir malcrnal unclcs, namely Shoukat and Shafaqat were proceeding back to their houses from his housc and when they reached near thc house of one Mir Afzal, he gave knife blow to Shoukat, as result of which, he suslained injury on his abdomen and then when the complainant with his brother namely Sajid went to the spot to rescue him, but, in the meanwhile, Mir Afz,al sl<t Sikandar and his three sons namely Safeer, Itaja Sher Alzal and Khan Afsar having sticks, axe and knife camc there.

Raja Sher Afzal gave knife blow to Sajid V and injured him on the left side of his abdomen, while Safccr caught hold ol the complainant and Khan Afsar gave him an axe blow, as a result of which, the complainant sustaincd injurics on back side olhis head as well as on his forehead

and nosc. Likewise, I{a.ia Sher Al'zal injured him by giving knife blow on the right side ofhis chest. The occurrence was witnessed by Shafaqat s/o Muhammad Zaman and Amjad s/o GoharrNo previous motive behind the occurrence was stated to be there cxcept an ahercation which took place when Shoukat was restrained to use the passage by accused facing trial.

ILcport was initially reduced into Naqal Mad No. 18 dated 21.09.2014 and after receiving medical reports, the present FIR No. 284 dated 2l .09.2014 under Sections 324134 PPC was registered. Latcr-on, the in jured Saj id succumbed to injuries, therefore, section 302 PPC was inserted in the F'II{.

3 The appellants were summoned v and charge werc framed againsl them under section 30213241331-F'(iiXiy337- A(t)134 PPC, to which thcy pleaded not guilty and claimed trial. 'l'he prosccution was invited to produce its evidence, who

accordingly examined seventeen ( l7) witnesses in support of its case. 'l'hereaftcr, statement of appellants were recorded under section 342 Cr.P.C. After hearing arguments of learned counsel for parties, the learned trial Court acquitted the accused Safeer however, convicted the appellants namely Mir Afzal, Khan Afsar and Raja Sher Alzal vide order daled:

28.09.2018, which order was challenged before this Court through appeal No. 190- Al20l9, which appeal was allowed by this Court vide order dated: 16.122020 and the case was remanded back to the learned trial Court for denovo trial. Al'ter thc remand, aocused were summoned, charge was reframed and the direction of this ,r Court in the rcmand order datcd:

16.12.2020 were complied with and both the lcarned counsel representing parties rccorclccl thcir statcmcnts thal thc-v rcl.'' orr their already recorded evidence in pre- remand proceedings and stated that they

do not want to produce any further evidence. On conclusion of proceedings, appellants were convicted and sentenced vide the impugned order/judgment dated 05.06.2021 ol'the learned trial Court passed by the learncd Additional Sessions Judge, Balakot Camp Court at Mansehra, as stated hereinabove. The appellants have now challenged the aloresaid judgment by filing the instant appeal.

! Arguments of learned counsel for thc appellant, complainant as wcll as learned Astt: A.G. appearing on behalf of the State were heard in considerable detail and the record perused with their able asslstanoe

5 After perusal o1- thc record & evidence produced by the prosccution it b t/ was straightaway noted that the prosecution has not come lbrward with a wholc trulh and it has supprcssed thc actual mode and manner of the occurrence as in the initial report which was in the

form of Madd repo( No.18 Ex.PW8/1, the complainant namely Banaras Khan, PW-9 has slated that appcllant Mir Afzal made a knife blow to the I'}W-10 Shoukat, and Raja Sher Afzal gave knife blow to the Sajid, whereas accused Sal-eer catch hold of the complainant and accused Khan Afsar gave him an axe blow whereas Ita.ja Sher Al7al also made knif'e blows on his chesl, however, while stating one side of the story, the complainant and the other PW i.e PW-10 Shoukat have suppressed the injuries sustained by the accused party. It is part of the record and evidcnce that the accuscd parly too, within hours o1-the occurrcnce has lodgcd his report in the form of Madd No.23 da\ed22.09.2021 where the appellant Mir Afzal in the company oIco-appcllant Sher Afzal lodged the report that on the date and time of occurrencc the complainant party comprising ol Shoukat, Shafaqal, Banaras and Sajid came to their house and who were duty equipped with axe and

slicks and attacked at thcm due to which appellant Mir Afzal sustained injuries on his back due to axe blow o1'Sajid (now dead), whereas lrom stick blow of Banaras (complainant PW-9) Khan Afsar rcceived injury on his head and back and Shoukat catch hold ol his son namely Sher Al2al and Shafaqat made axe blow at him on his head, right arm and back but this part of the story has totally been supprcsscd by the complainant par1y. lhe factum of injuries sustained by the appellant's sidc also find support from the statcmcnt o1'Dr. Nazir Alvi and MI-C o1' the appellants which were exhibited as Ex.PW11/Dl and Ex.PWll/D-2. A mere perusal of the above said medico-legal report would show that such injuries could not be self-inflictcd viz-a-viz their local and nature.

^/ 6. The factum of injuries sustained by the appellant side and their suppression by the complainant party also llnd suppon from the statement of the investigation

officer, who appeared in Court as PW-12, who in his cross examined has admilled that:

"The report of Mir Afzal was recorded in Mad No.23 doted 21 09.2014 at 2350 hours. lt is correcl lhat both Mir A,fzal and Sher Afzal were senl /br medical examination. Il is correct that both were medically examined and Sher A.fza I was also aclmitted in the hospitaL. On receipt r.y/ medico-legal reports o/' Mir A/2al and Sher Afzal I did not conduct any invesligalion in lhis respect. The wilness added lhal no cognizance o/fence was made oul from medical report. It is correcl lhat according lo medical reporl lhere was a slab wounc{ over lhe hack o/ Mir A/2al besides bruises.

I did nol oblain any opinion .from the Medical Olficer in respect of injuries found on lheir persons. The wilness added that os on bolh the medico-legul reports it i.s not 12 ment ioned lhat injuries wcr( grievous. Il is cotecl that I had not placed on file the medical reports o/ Mir A./ial uncl Sher ,4/zal during lhe course oJ invesligation. "

The IO has further admitted in his cross- examination that:

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"The recovery at lhe poinlalion ol dL'(us(J lrrl.r mdtl( ()n 30.09.2011 aJier 09 days of rhe occurrence. Wilness added that accused was injured and was hospitalized and a/ier his discharge from hospital I took permission ./iom the concerned Court on 29.09.2014 and thereafter invesligated the accused and e//bcted recovery on In view of the above, it is cstablished on the face of record that the appellants namely Mir Afzal, Sher Alzal and Khan Afsar have also received injuries in the same occurrence but the said injuries were intentionally suppressed bY the complainanl and thus, the rcport ol'thc complainant lacks a proof beyond doubt, therefore, the benefit of the same requires to be extended to appellant, * however, the report lodged bY the appellant side in the form of Madd No.23 datcd 22.09.2022 would show that they too have suppressed the iniuries on the bodies of complainant parly and thus, both the parties have

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been guilty of suppression of lrue facts and have not come forward with true picture of the occurrence. In the case of "Muhammsd Javed-Vs-the State" rep orted as 2020 SCMR 2lI6 , it is held thal said witness also showed ignorance about the injuries received by the accused s idc comprising of' bruiscs, abrasions and lacerated wounds- duration whereof, coincided with the limc ol occurrence. In thc face of unanimous suppression of injuries by the prosecution witnesses, the prosecution case lacked "prool beyond doubt" as it did not reconcile with the parallel story recorded by the Investigating Olficer himself duly supported by the statements of medical officers who attended the trial as court witncsses. In a case lillcd "Sultunut Khan-Vs-The State" rcported as 2012 P.Cr.L.J I563 , this Courl at Mingora Ilench has held that record showed that accused lodged a repot't whcn he was

arrcslcd and was also medically examined and certain blunt injuries were found on his body sustained by him in the same occurrence. Conduct of the accused shorved that alicr the occurrence, he was present in his house and when police came, his reporl was recorded and he was rclcrrcd lor medical treatment. Complainant pafty had suppresscd the injuries sr.rstained by the accused. Itcport ol' accused was also silent about the casualty of the olher side. In view of the settled law that whcre the complainanl parly has suppressed the injuries sustained by the accused/party in the same occurrence then such report could not be taken and considered as a true and honest version of the complainant and the benefit of the samc has to be extcndecl to thc nominated accused ofsuch a report

7.Now we move to address the issue that as to who was aggressor and who was aggressed upon. It is the case of

appellanls' side right lrom inception in the form of Madd report No. 23 dated:

22.09.2021 that it was the complainant side who atlacked them at their house and who were also equipped with axes and sticks, and as a result thercol the three appcllants hcrcin suslaincd injLrrics.'l'hcir confessional statements too speak something more of a defence plea, than admission ol' commission ol' ol'hnce.

Similarly, the place of occurrence as portrayed in the site plan, which was preparcd on the pointation ol the complainant Banaras PW-9, would also show that the place of occurrence is though not inside the house of appellanl, but it is surely near and around the house and properlies of the appellants. l'he site plan rnanilestly shows thc house and properties of the appellants' side but the samc surely does not show the abode/house of the complainanl side. It is also an admitted position that occurrence

has takcn place in the darkness ol- the night as it was at 8:40 (20:40) hours in the month of September, and the complainant side has not explained as to what far they were present near the house of appellants and thus these admitted I'acts and circumstances goes a long way to support the stance of the appellants side, rather than of the complainant party, therefore, such aspect ol the case 1oo is considered for reduction of sentences awarded to the appellants. In the case titled: "Muhammud Younus-Vs-The State" reported as 1992 SCMR, 1592, exactly in an identical situation, the apex Courl acquitled the accused, as in that case, the occurrence took place in-front ofthe shop l) 7 and house of the accused, whereas, complainant PartY has no ProPefiY OT business and in such circumstance alone, convincingly the High Court concluded that the occurrence had not taken place/occurred in the manner as stated by

prosecution/complainant. In the supra case of "Muhammad Younus it is fufiher observed that in the case in hand the occurrence admittedly took place in front of thc house of the accuscd where the cornplainant party had no business to be there as held by the High Court in the impugned judgment. This by itself corroborates the version ol thc appellant that it was they who initiated the occurrence by calling his lather lrom his house. 'l'he prosccution had lailed to produce any independent witness in support of their version though according to them the occurrence took place in the bazar where many peddlers and shopkeepers were present at tl,e time o1' the occurrence. The prosecution witnesses suppressed material fact of the accused/appellant having received grievous injuries during the course of the said transaction which was proved from the slatement of Dr. Mehmood Khan PW-

9 coupled with the slatement of the appellant on oath that he received his injuries at the hands ol the complainant party, which conduct of the complainant was found fatal and the accused were acquitled ol- the chargcs lcvelled against them. Likewise, in the case titled:

"Muhammad Akram-Vs-The State"

rep orted as 2012 SCMR 440 it is also held that accused received fivc fire-arm injuries at the hands of deceased and his companions I'ell senri-unconscioLrs and in such state ofaffairs only and only in order to save his life fired a single shot which hit thc deceased duc to which he lost his life. Irxplanation and stance ol accused was natural as the deceased and his companions were not abstaining * themselves from further firing on the accused and their further firing could have taken lile olaccused, who had actcd in his self-defence and not exceeded the same.

Supreme Court set aside conviction

awarded to accused by both the courts and he was set at liberty. Appeal was allowed.

8.11 is also relevant to mention here thal the story as stated by the complainant in the initial report is prima facie unreasonable, AS admittcdly, whcn both the parties comprising of more than half of a dozen of persons were indulgcd in fists, kicks and stabbing blows, thcn how the complainant eyes could catch the occLrrrence in such a photogenic manner by charging lour accused lbr corresponding injuries sustained by the complainanl party who too were three in number and his report become more doubtful when the doctor who appeared in Court as PW-1l has stated in his cross examination that the inj urics sustair.rcd by e7 the complainant side may be caused with a single weapon, thercfore, it appears that complainant has thrown a wider net and has implicated innocent Persons, therefore, this aspect of the casc too is

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considered for the reduction of the sentences awarded to the appellants 2 As far as the award of punishment of [ife imprisonment to the appellant Raja Sher Afzal under section 302 (b) PPC is concerned, the same appears to be harsh and need to be converted and reduced to under section 302 (c) PPC for the reasons that it is the plea olthe appellants' side, as set in Madd report No. 23 dated: 22.09.2021 as well as in the confessional stalement-cum-del'encc plea thal it was the complainant side who attacked on their house, however, even then thc appellant Raja Sher Afzal has statedly inflicted a single blow to the victim Sajid and he has neither repeated the blows nor has taken undue advantage ol the situation when ry deceased Sajid was at his mercy nor he has acted in a cruel and unusual manner The record also shows that the appellant has neither commitled offence with any premcditation rather appellants' side was

prima facie forced upon and was invited to the quarrel, then a brawl and then the instant unfortunate incident, therefore, it is a fit case, which attracts the provision ol section 302 (c) PPC as such provision will only attract to those cases where exception to old provision of section 300 PPC stand attracted and the present occurrence being forced upon the appellants' side, AS admiucdly, it has taken place in-liont ol the hor-rsc ol the appellants' side and the same has been committed without any premeditation and without any preparation on thc part ol appellants' side, and the appellant has only inflicted a single blow and that too as a def-ence, therelore, conviction of appellant Raja Sher Afzal needs to be converted from section 302 (b) PPC to -il section 302 (c) PPC. In the case titled:

"Muhammud Aimul-Vs-The State"

rcportcd as 2022 SCMR U8. it r'ras held by the Apex Court in Para 3 & 4 we have heard the learned counsel for the

st tJ (taplnru ol Suuunou.tD lou apl)lwot! alqDdlnc) uoudarxa a\oqD aLll rapun asD) aql EurButtq og 'llttDt^t^D 1s"rg[ aql sltLuwo) Jo uot!)co^o.td ary so.fIo &"md qctqu sasoc q)ns ul lDuaruu.rwt sl tI :uottDuoldxg tauu ll Lu

1r lDnsnun Jo pn"o D ut papD ..to aSoluoa.prt anpun u lDt Surloq s,npua/lo aqt tnoqllnt 1luo la"ttonb uappns o uodn uorssod .{o toaLl allt ur rySl uappns rs ur uorp1rpawatd ruoqtlM pa tututo) .s7 t! I! raptnw rcu st apt)truoq a1qod1n3 -:y uotldacxE,, 'rapun sD pacnpo,rdat .ri ) d'rt '00t uotl)as pplo , uorydacxg 'papo,qtt) puDts ) ({ d '00t uotDas lo uotsu.o,rd plo ol sucttylacxa atatlu 'trosD) ot^oLll ut tluo pat)o.tlttr aq illm ) d d 'Q)1OS uotDas .,rapun acual/o uv ') d'd 'O)eOt uotl)ar^ r'lcDJtlD q)tqfi SJaPLuo..tod a4t sswsry) ol illtl pruow a aso) ryasa.td aqt {o slcof aqt Sutssncsrp anlag 'a)uotstssn rtaql L/llrtt pto)a) alqDltDlo aLll pasn,rad puo Tuoutoldtuoc aqt )o{ lasuno) pau)oal aqt sD llaw sD qo{un4 'ptauaD t oln)a ;'or d lou o t tt pp Y pau"t oal' ru 011 addo

OZ

required to be established that the case was one o/ sudden fight, taken place without any premeditation in the heat of passion upon a sudden quarrel and of/bnder hctd nol loken any undue advantage and must had not acted in a cruel or unusual mQnner.

4ln the case oJ' "Ali Muhammad- Vs-Ali Muhammad and other" reported as PLD 1996 SC 274, it was held that there should be no doubt that the cases covered bY the exceptions to the old sec'lion 300, P.P.C. read with the old section 304, therefore, are cases which were intended to be dealt with under clause (c) of the new section 302 oJ the P.P.C. Likewise, in the case of ,,4 ol lah v. The Stale" 201 4 SCMR II78 , it was held that it has already been held by this Court in tht: td\e ul.Ali Muhammud v. Ali Muhammad and another PLD 1996 SC 274 that the cases falling in the exceptions contained in the erslwhile provisions o/ seclion 300, ry P.P.C. now, attract the provisions o;f section 302(c), P.P.C. The case in hand was surely a case of lack of premeditation, the incident rrtds one of a sudden /ight which was ct result oJ heat oJ passion developed upon a sudden quarrel and no undue

ldvantage had been taken by the appellant nor had he acted in a brutal or unusual menner. In these c'ircttmstances Exception I contained in lhe erslwhile section 300, P.P.C. squarely stood attracted to the case in hand and, thus, the case against the appellant fell within tht' pttrvit'w,tf the pntvi.sion.s of section 302(c), P.P.C."

10.It is also relevant to mention here that it is the casc of prosecution that accuscd Safeer catch hold of the complainant and Khan Afsar gave him alr axc blow, however, through the sa,.c impugned order and judgment, the said Sal'eer has been aoquitted ol the charge ol' catching hold o1' the corr.rplainant. Similarly, through the SAn1C impLrgned order/judgment appellant Raja Sher Afzal has also been acquitted of the chargcs to commit lhe qatal-i-ttmad of q.

s'/ the complainant but interestingly the complainant has not filcd any appeal against thcir acquittal, which in othcr words means that a part of the prosccution story which was held as

neither true nor proved but the complainant party is satisfied with the same ar.rd has not challenged sucl.r findings through filing of an appeal.

11.As far as the confession of the appcllants is concerned, the reoord would show that the appellants were arrested on the same day and out of the three appcllants, two appellants Mir Alzal and Khan Afsar were produced before the local Magistrate and their one day police custody was obtaincd, whereas conditional police cuslody o1' appellant Sher Afzal was granted as he was hospitalized for the iniuries sr-rstained by him in the same occurrence and as such it was after the expiration of police custody when the two appellants were made ready 1o record their confessions, whereas, in the case of appellant namely Raja Sher Alzal the conlession was rcoorcled ot.t 01.10.2014 i.e after 10 days of his arrest.

The record also speaks that after the

alleged confession ofthe appellants, they were again handed over to the I.O, which cast scrious doubt over the voluntariness and truthfulness of their conl'ession. It is also relevant to mention here and as observed in the prcccding para that the confession of the appellants speaks more of a def-ence plea than of confession ol commission ol'an ollence, thcrefore, this aspect too is being taken into

consideration for the reduction of senlcnces awarded to the appcllants.

12.It is also relevant to mention here thal the complainant in the initial reporl has sc1 a trolivc to thc c['lcct that tl.re appellants were not allowing his rraternal uncles namely Shoukat and Shafqat to use thc lint< road, howevcr,, ncithcr during the course of investigation nor ofthe trial, the /;v complainant has establishe d the parliculars o1- thc said link road/path or the fact that as to whether it was a public path or private path or the reasons behind

stopping his maternal uncles from the use of the same, therefore, the motive of this case 1oo has not been proved by the prosecution. It is settled since long that though the prosecution is not bound to set a motive but once the prosecr"rtion has set a motive then it is bound to prove the same, therefore, such aspect of the case too is being considered lbr the reduction ofsentences awarded to the appellants.

13.In view of the above discussion and exposition of law and various principles governing administration of j usticc in crin'rinal cascs, wc catl.tc ttl thc conclusion that since both the parties have suppressed the true mode and manner of occurrence and since the appellants' side has taken the stance that theY were attacked by the complainant party when they were in their house but thc site plan ry speaks that the occurrence has taken place in-front of the their house, therefore, instead of outright acqr"rittal, we in the

given facts and circumstances of the case, deemed it appropriate to reduce the sentences awarded to the appellants. We were also informed that out of the awarded senlcnccs of 05 vears to the appellant Mir Afzal and Khan Afsar they have already served respectively 04 years and 02 months and 03 ycars 0l rr-ronlh and 26 days, whereas, appellant Raja Sher Afzal has also served 08 years and 06 rnonths

14.Accordingly, the instant appeal is parlially allowed and consequently the impugncd conviction and scntenccs arc maintained, however, the same are reduced and as consequence thereof the sentence of 05 Years imPrisonment awarded to the appellant namely Mir Afzal under section 324 PPC is reduced to ry thc sentence already undergone, whcrcas, the sentence of payment of I{s 200,000/- as Daman under section 337-F (ii) PPC is se1 aside. Similarly, the sentence of 05

years awarded to the appellant namely Khan Aiiar undcr seclion 324 I']PC is reduced to the sentence already undergone, whereas the sentence of payment of Rs. 100,000/- as Daman undcr Section 337-A(i) is set aside. The sentencc of lile imprisonmcnt awarded to the appellant l{aja Sher Alzal under section 302 (b) PPC is converted to sentencc under section 302 (c) PPC and the same is reduced to 10 Years R.l, whereas, the sentence of payment of fine of Rs. 200,000/- is also reduced to I{s.

100,000/- or in delaLrlt o['payn'rcnt ol-such fine he shall further to undergo three months S.I. Benefit of section 382 (b) Cr.P.C is extended to the appellants'

15.'l'hese are the reasons of our shorl order o1' cven date.

An no unced.

t 1.04.2023.

JU G

A

JUD E

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