Nazar Gul Alias Nan Vs The State etc

Judgment Sheet

PESHAWARHIGHCO URT. BAIIITU BENCII

(Judicial Department)

Cr. A No.180-B of 2021 wirh Murder Referen ce No.0LBl202l

Nazar Khan, alias, Nan Vs.

The State etc:

TUDGMENT

For appellant: Messrs. Shahid Naz ir Jarra and Muhammad Rashan Khan Dirma Khel. Advocate

For State: I&. Sardar Muhammad Asif. Asstt: A.G For Respondents: Mr. Iftikhar Durrani. Advocate Date of hearing: 05.04.2022

SAHIBZADA ASAD J.- Nazar Khan alias Nan,

the appellant, has called in question the judgment dated 30.10.2021, rendered by the leamed Additional Sessions Judge-I, Baruru, whereby the appellant has been convicted under section 302 (b) PPC, and sentenced to death with fine of Rs.500,000/- (five lac) to be paid to the legal heirs of deceased. The amount of fine on realization shall be paid to the legal heirs of deceased, as compensation U/S 544-A Cr.P.C, in default the convict shall undergo six months SI.

Benefit of Section 382-8 Cr.P.C was extended to the convict/appellant. Murder Reference No. 04-B/2021 has also been sent by the leamed trial Court under section 374 Cr.P.C, for its confirmation or otherwise, hence, we intend

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to decide both the matters through the instant common judgment.

2 Brieffacts ofthe case as per contents ofF.I.R are that, on 21.01.201I the complainant Adnan Khan while accompanying the dead-body ofthe deceased Khalid Khan reported the matter, in the D.H.Q, Hospital Bannu, to the local police to the effect that, he along with Khalid Khan (deceased) had visited Murghi Mandai, Bannu to purchase household articles, that in the meanwhile the accused Nazar Khan alias Nan and Umar Fayaz armed with .30 bore pistols atffacted to the spot. Nazar Khan alias Nan fired at the deceased Khalid Khan with the intention to kill, who after receiving firearm injuries died on the spot. The accused decamped from the spot after commission of the offence, thus, the F.I.R ibid.

3 After concluding investigation, the prosecution submitted challan against the accused. Leamed trial Court after compliance of section 265-C Cr.P.C, formally charge sheeted the accused/appellant, to which he pleaded not guilty and claimed trial. The prosecution produced and examined as many as 09 witnesses, whereafter, the accused was examined under section 342 Cr.P.C. The appellant neither opted to be examined on Oath under section 340 (2) Cr.P.C, nor wished to produce evidence in defence. After hearing arguments,

the leamed trial court vide the impugned judgment, dated 30.10.2021, convicted the appellant and sentenced him, as mentioned above. Hence, the instant criminal appeal.

4.It was on 21.01.2011 at 08:45 AM when the deceased and others visited Murghi Mandi Parady Gate Bannu, when in the meanwhile the accused./appellant along with another duly armed with .30 bore pistols attracted to the spot, where out of the two, the convict/appellant started firing at the deceased, who after receiving fire-arm injuries got injured and died on the spot. The deceased was shifted to civil hospital Bannu, where the matter was reported in the shape of murasila and thereafter the injury sheet and inquest report were prepared and dead-body was sent to the doctor for PM examination. The investigating offrcer after receiving copy of F.I.R visited the spot and on the pointation of the eye-witress prepared the site-plan. During spot inspection the investigating offrcer collected blood- stained earth from the place of the deceased and two empties of .30 bore from the place of the appellant. The collected empties were sent to the fire-arms expert to ascertain as to whether the same were fired from one or different weapons.

The report was received in positive with an opinion that the same were fired from one weapon.

6 The appellant was arrested on 15.05.2019, and on conclusion of the trial the leamed trial Court was pleased to convict him vide the impugned judgment. The leamed trial Court dealt with the matter comprehensively and after applying its judicial mind to the evidence on record convicted the appellant. This being the Court of appeal is under the obligation to go through the collected evidence and to ascertain as to whether the learned trial Coun fully appreciated the available evidence on file and that the reasons provided for conviction of the appellant find support from the evidence available on file. There is no denial to the fact that out of the accused charged, the role of effective firing has been attributed to the appellant, so in essence single accused is charged for the murder of the deceased. True that in case of a single accused substitution is a rare phenomenon, but equally true that the same is not the rule of thumb. As in case of single accused the Courts are under obligation to apply extra care while assessing the evidence on file, so that miscarriage of justice could be avoided.

7 The learned counsel for the appellant submits that the prosecution did not succeed in bringing home guilt

against the appellant; and that the incident did not occur in the mode, manner and at the stated time. It was extensively argued that the medical evidence does not support the case of the prosecution and the seat of injuries on person of the deceased belies the stance of the complainant. It was lastly submitted that the prosecution case suffers from inherent defects which can only and only be read in favour of the appellant. Contrarily, the leamed counsel representing the complainant along with Asstt: Advocate General, submitted that the matter was promptly reported which excludes the possibility of consultation and deliberation. They further submiued that the ocular account could not be shattered despite lengthy cross-examination and that the medical evidence fully supports the stance of the complainant. It was argued that the motive alleged has been proved on record and that the leamed trial court was fully justified to convict the appellant. They concluded their side on submitting that the impugned judgment is well reasoned, which calls for no interference.

8 Heard and record perused.

9 This Court is to see as to whether the incident occurred in the mode, manner and at the stated time; and as to whether the complainant was present at the time of incident and as to whether the prosecution succeeded in bringing home guilt against the appellant. The unfortunate

incident occurred in the local bazaar, known as, Murghi Mandi Bazar, where the complainant along with the deceased had come to purchase household articles to prepare uSobaf', in the night. The record tells that yet the deceased and the complainant were to purchase, when in the meanwhile the accused attracted to the spot and fired at the deceased. The deceased was shifted to the hospital where the matter was reported. We are to ascertain from the record that as to whether the incident occurred in the mode, manner and at the stated time. We are to collect from the available evidence the role played by the appellant and the charge brought against him. There is no denial to the fact that the complainant and others reached to the place of incident at 08:45 AM and after receiving fire-arm injuries the deceased was shifted to the hospital where the matter was reported at 09:15 AM. The time spent between the injuries caused and report made excludes the possibility of consultation and deliberation, and it further confirms that the complainant was present at the time of incident. The site-plan prepared at the instance of the complainant confirms the respective places assigned to the complainant, the deceased and the accused as well. The recoveries of empties from the spot along with blood-stained earth lend support to the case ofthe prosecution.

10.Soon after reaching to the hospital, the matter was reported and it was the complainant along with another who identified the dead body of the deceased to the local police at the time of preparation of the inquest report. Not only at the time of report, but also at the time of postnortem examination, it was the complainant along with another, who identified the dead body ofthe deceased. The presence of the complainant at the time of incident and soon thereafter is established from the record and the defense could not succeed in convincing us other-wise. It was argued that had the complainant been present on the spot instead of the deceased he would have been the prime target, as it was he who was involved in the blood feud. An attempt was made to convince that the respective places assigned to the parties and the injuries received by the deceased do not find support from the site-plan. The record was gone through where we did not come across any substantial material which could disclose the involvement of the complainant in blood feud with the appellant and even the record is silent in that respect. In order to appreciate this particular aspect ofthe case, the prosecution has placed on file copy of F.I.R No.l19 dated 07.07.2009 under section 324134 P.P.C, Police Station, Basia Khel, Bannu. The motive F.I.R was registered by one Nazar Khan son of Gul Sarwar, where four accused namely, Raziq s/o

Rahmani, Gul Khan, Gham Nawaz Khan Vo Aziz Khan and Am Nawaz Khan s/o Gul Khan, are charged. Though the name of the deceased did not figure in the said F.I.& but one of the accused namely Raziq is the real brother of the deceased and the possibility cannot be excluded that it was the previous episode which claimed the life of the deceased.

ll. The collected empties were sent to the fire-arms expert wherefrom a report was received in positive, with an opinion that the szrme were fired from one weapon. As in the incident the effective role was assigred to the appellant, so the laboratory report confirms the stance of the complainant to a greater extent. The site-plan prepared on pointation of the complainant fully supports the case of the prosecution and the recoveries of empties with it's positively repon strengthens the prosecution case to a greater extent. True that positive laboratory report is a supportive piece of evidence and the same can be pressed into service only and only when strong evidence is available on file. In the present case the prompt report and direct ocular account leaves no ambiguity that the prosecution is well equipped with the required evidence and in the like circumstances the positive report received from the Laboratory fully supports the prosecution case and the same can be taken into consideration.

12.It was agitated time and again that the medical evidence does not support the case of the prosecution and that the conflict between the two will benefit none, but only the appellant. In order to ascertain this particular aspect of the case, we with the help of leamed counsel for the parties went through the site-plan. The site-plan depicts the respective places of t}re deceased, the eye-witness and the accused, including the appellant. The inter-se distance between the deceased and the appellant leaves no ambiguity that the deceased was fired by the accused/appellant while present at Point-3. In order to appreciate this particular aspect of the case, we deem it essential to go through the statement of the doctor, who was examined as PW-6. The doctor explained the nature of injuries in the following manner:-

Wounds:

l One FAI entry wound on posterior paft of right lower skull size %x ll4 .

2.One FAI exit wound on right parietal region of skull size %x% .

3.FAI entry wound on posterior aspect ofskull mid at lower part size % x Yq .

13.It was argued with vehemence that the medical evidence does not support the ocular account and that both are in conflict. Our attention was brought to the injury

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received on skull, where we observed that the bullet travelled from down to upward. An attempt was made to convince this Court that the firing was not made in the mode and manner. We are not ready to accept to what the learned counsel for the appellant submitted, as head is not the static part of the body and human being reacts differently in different circumstances. The possibility cannot be excluded that on noticing the presence of accused duly armed, the deceased would have reacted by changing his position and while doing so received the injury on his skull. We are not only to see the conflict between the medical evidence and ocular account, rather we are to go through the attending circumstances of the case, coupled with statements of the witnesses recorded before the trial court as in that eventuality this court will be in a better position to appreciate this particular aspect of the case. We cannot forget, and so is settled that medical evidence is confirmatory in nature and in presence ofdirect, confidence inspiring and trust worthy ocular account the same has little role to play. In t}e present case as the complainant succeeded in establishing his presence on the spot and his testimony could not be shattered, so it is the ocular account which would prevail instead of the medical evidence. True that, when the ocular accotmt fails then it is the medical evidence which steers the wheel. The complainant remained

consistent on material aspects ofthe case and the defence failed to discredit his veracity. Our attention was invited to the fact that the posfinortem was conducted at 10:35 PM, after a considerable delay, and that the same alone is sufficient to discard the prosecution story. The leamed counsel representing the appellant fell in error, as in fact the time of examination of the dead body was 10:35 AM and not 10:35 PM. In order to resolve tle controversy, the opinion of the doctor is of prime importance, where the time between injury and death is given as I to 3 hours. It is pertinent to mention that soon after preparation of the inquest report the dead body was handed over to one Imran Shah (constable), who escorted the same to the doctor for postrnortem examination, and no prudent mind would accept that the same was produced to the doctor after 24 long hours. This plea of the appellant cannot be accepted and as such the same is discarded. As the complainant succeeded in establishing his presence on the spot at the time of incident and thereafter, so his evidence is not only trustworthy but confidence inspiring as well, the same cannot be discarded, even ii there were minor discrepancies in the prosecution case. In case titled'Sha4fulWllg uand another Vs. YLR 24 it is

held that:

The minor discrepancies pointed out by the learned counsel arc nol helpful to the delense because with lhe passage of time such discrepancies are bound lo occat The occurrence took place in broad day light and both parlies knew each olher so there was no mislaken identily and in absence of any previous enmity lhere could be no

substitution by letting off the rcal culprit specially when the appellant alone was responsible for the murder of the deceased. The evidence ol two eye-witnesses was consislent, lrulhful and confidence-inspiring. The medical evidence fully supports the ocular account so tar the injuries received by the deceased, time which lapse between the injury and death and between death and postmoflern"

14.The motive was stated to be the blood feud between the parties and that several persons lost their lives from both the sides. In order to substantiate its stance the prosecution placed on file the motive F.I.R where brother of the deceased namely Raziq was charged along with others.

This was agitated time and again that when complainant was the prime target and that when he was present at the time of incident then instead of the deceased he would have been the actual target but his escaping unhurt strengthens

the belief that the incident did not occur in the manner and at the stated time. It was further submitted that once the motive is alleged and the same is not proved then it is the prosecution to suffer. -As the alleged motive has been proved on record and the investigating officer collected documentary evidence in that respect, so we lurk no doubt in mind that the prosecution has been succeeded in proving the motive. If we admit for a while that the prosecution failed to prove the motive then the same can be pressed into service for limited purposes i.e. for determining the quantum of sentence and nothing more keeping in view the peculiar circumstances of this case.

15.The appellant soon after the incident went into hiding till his arrest on 15.05.2019. The appellant could not explain his long abscondance. True that abscondance alone is not sufficient to burden an accused with the liability, but equally true that the same can be taken into consideration in favour of the prosecution provided, the prosecution succeeds in bringing home guilt against the accused charged. As the prosecution succeeded in proving its case against the appellant through confidence inspiring witnesses, so the long unexplained abscondance can be taken an additional ground to favour the prosecution.

16.As the prosecution succeeded in bringing home guilt against the appellant, so this Court is to determine as

to whether the awarded sentence is justified and is in accordance with law. As the appellant has been convicted to death sentence, so this Court is under the obligation to reassess the already assessed evidence to ascertain as to whether the awarded sentence is legally correct and as to whether the learned trial court had no alternative to go for a lesser sentence. The record tells that both the deceased and the appellant during the days of incident were aged about 22/23 years, an age where it is hard to resist the emotions, temptations and the surrounding influences. We lurk no doubt in mind that the prosecution could not succeed in bringing on record the exact cause of the incident, rather previous blood feud was projected to be the cause ofdeath of the deceased. True that on record brother of the deceased was charged in the motive F.LR" but equally true that the prosecution could not bring on record concrete evidence in that respect to exclude any other hypothesis. As the complainant, the deceased and the appellant were neaxly of the same ages, the possibility cannot be excluded that it was a chance encounter which led to the death ofthe deceased.

The record is silent that what happened a little earlier to the incident which claimed the life of the deceased. As the complainant stated that at the time of incident, both the accused i.e. the appellant and his co-accused were duly armed with .30 bore pistols and that it was from the fire

shots of the appellant that the deceased lost his life. Had the cause ofdeath been the blood feud, then in that eventuality the complainant would have also received fire arm injuries and the co-accused would have also resorted to firing, but the situation tells another story and the created mystery could not be resolved till the end. This court is to take into consideration the attending circumstances of the case for awarding sentence. There is no denial to the fact that on one hand there are minor discrepancies in case of the prosecution, whereas on the other the prosecution could not convince that it was the previous blood feud between the parties which claimed the life of deceased. When the prosecution is uncertain regarding the exact cause ofdeath, then the same can be pressed into service to assess as to whether the appellant was rightly convicted. We are conscious ofthe fact that when the prosecution succeeds in bringing home guilt against an accused charged, then the normal penalty IS death, but in case in hand the discrepancies in the prosecution case and the uncertain cause of death leads this court to hold that the awarded sentence is a bit harsh and the same needs interference, as is held in case titled "Mst. BEW Vs. ulam Shabbir and another" (1980 SCMR 859) where it is held: nThe question of sentence undoubtedly

present a complex problem. On lhe one

hand the prosecution asserled a definile motive for Ghulam Shabbir respondent to murder the deceased-either as a hired assassin or without payment a mere obligation on the asking of Ghulam Abbas acquitted accused The foilure of this part of lhe prosecation casl even (if the acquittal of Ghulam Abbas is considered to be on benefil of doub) can be pressed in service by Ghulam Shabbir when considering lhe question of senlence. On lhe other hand, il the assumed motive- ii kept in view ht is gailty of an unprovoked cruel act ol murder. It has been held in some cases lhat the principle underlying the concept of beneJil of doubt can in addition to the consideration ol question of gailt or otherwise, be pressed also in matter of sentence. As a definile motive was asserled agoinst the respondent and the same has failed, keeping in view all the circuntslances of lhis case, it would not be necessary to impose the capita' punkhment. Therefore while finding him guihy; under section 302, P. P. C. he is sentenced to transportation lor lW should be awarded as compensation.'

17.We, in order to avoid miscarriage of justice deem it appropriate to reduce the awarded sentence from death to imprisonment for life under section 302 (b) P.P.C.

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The instant Criminal Appeal is partially allowed, the impugned judgment is modified by maintaining the conviction and reducing the sentence from death to life imprisonment, while rest of the sentence shall remain intact.

As the criminal appeal has partially been allowed and the appellant is convicted and sentenced under section 302 (b) P.P.C,is reduce{to life imprisonment, the Murder Reference No. 04-8/2021 is answered in negative.

Announced

.Inranullah PSr GE

JUDGE

(D.8t ,lon'bb Mr. tunke Ehtbq tbmhln & Hon'bte ML lunke tuhtbzodo A duttoh

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