Muhammad Liaqat Vs The State

o 'lufqment Sfreet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

C r.Appeal.N o.208- A12020.

JADGMENT

Date of Hearing 08.02.2023

Appellants (Muhammad Mr. Muhammad Arshad Awan, Advocate.

Liaqat & another) by Respondent (Snte) by Sardar Ali Raza. AAG.

Complainanl by Mr. Shad Muhammad Khan, Advocate.

I4/IQAR AHMAD, ,I:- Matter was rcported by complainanl Khanwaiz S/o Kala Khan on 15.12.2017 at 12:30 hours in Emergcncy Room of DHQ I"Iospital, Abbottabad, by stating that on the relevant day, he along wilh his father Kala Khan, brothers Sadiq and Khursheed had appeared bclore Lligh Cour1. Aftcr leaving Court, they reached near Mansehra Wagon Stand at 12:20 hours. Complainant along with his brother Khurshccd wcre ahead while their lather Kala Khan and brothcr Muhammad Sadiq were bchind thcm at some distance. They hcard firing and saw that Liaqat

and Abdul Qayyum had been firing at Sadicl while Haider Zaman and Rashid had been firing at Kala Khan, as a result of which both of them sustaincd fircarm injuries. Accused aiso made firing upon complainant and his brother Khurshecd, howevcr, they rescued themselves by running llom the spot.

Thereafter, they shifted injured to DLIQ hospital, Abboltabad. Occurrence was stated to have bccn witnessed by complainant, his brother Khursheed and other people present at thc spot. Motive was disclosed to be previous blood feud enmity betwecn parties. On the basis of said reporl of complainant, rccorded in the shape of Murasila llx PW-10/1, FIR Ex PA was registered against the accused.

2 lJpon complelion of investigation, complete challan was submitted against the appellants I-iaqat and Abdul Qayyum as weil as acquitted co- accused L'laicler Zaman whcrcas challan under Section 512 Cr.P.C. was filed against absconding co-accused I{ashid. After supplying copies to thc accused tn compliance of Section 265-C Cr.P.C, learncd trial Court framed charge against them to which they pleaded not guilty and claimed trial. In order to provc

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its case against the accused, prosecution produced and examincd 16 I'}Ws and closed its evidence. 'I'he learned trial Court recorded statements of the accuscd/appcllants under Section 342 Cr.P.C. Aftcr hearing arguments of learned counscl for the parties, the learned trial Court convicted appellants Liaqat and Abdul Qayyum, as mentioncd above while co-accused Haider Zaman was acquitted.

J Appellants-convicts Muhammad Liaqat

and Abdul Qayyum sons of'Kala Khan have filcd instant appeal against conviction and sentence passcd against them by thc learned Additional Sessions Judge/Model Crin.rinal 'l'rial Court, Abbottabad, vide judgrncnt dated 13.10.2020 in case FIR No. 1275 dated 15.12.2017 under Section 3021324134 PPC of Policc Station Cantt: Abbottabad, whereby the appellants-convicts had bcen convicted under Section 302-8 PPC and sentenccd to lile imprisonmcnt and to pay compensation amounting to I{s. 500,000/- undcr Section 544-A Cr.I'.C. to thc legal heirs ol thc dcceased, ln default whcrcof they had to furlher undcrgo SI for six months. Bcnefit of Section 382-R Cr.P.C had bccn extended to thc appellants. Connccted

Crirninal Revision bearing No. 43-A12020 had been filed by complainant Khanwaiz,, seeking enhancement of sentcncc awarded to the appcllants while in Cr. A No. 211-Al2020 complainant has assailed judgment of learned trial Court to thc cxtcnt of acquittal of co- accused Flaider Zarnan. 'l'his single judgmcnt is aimed at thc disposal ol instant criminal appeal as well as connected Criminal I{evision No. 43-N2020 and Cr.A No. 211-Al2020, as all the connected matters are the outcomc of onc and thc same judgment of lcamed trial Couft.

4, Lcarncd counsel for thc appcllants argucd that the lcarned Court bclow has acquitted Ilaidcr 7,aman on samc set o[ cvidcnce while appellants Liaqat and Abdul Qayyum have been convicted thercon, which judgment should not bc allowed to sustain. IIc also contended that whcn four persons had been chargcd 1'or making firing, thcn darnagc should have becn tnuch morc tl-ran thc onc sustaincd by the complainant pany and therefore, thc main story ol prosccution was not betievable, particularly duc to the fact also that the PWs had escapcd unhu(. IIc also contendcd that locale of thc injurics receivcd by

dcccascd Sadicl showcd that hc had bccn f rred llrom di lllerent angles out of which some ol the fircs also appcarcd to bc lrorn a hcightcd placc but sitc plan has not bccn supporting vcrsion ol thc cornplainant in thrs rcspcct. 'l'hc lcarncd counscl also contcndcd that rcport has though becn shown lodgcd within ten minutcs, but distancc bctwccn placc ol occurt'cnce and thc hospital could not havc becn covcred in said ten rninutes and thcrclure, iodging ol-thc rcport a1 thc givcn timc did no1 sccn'l to bc appcalablc to a prudcnt rnind. I-carncd counscl lor thc appcllant also placcd his rcliancc on thc judgrncnts rcportcd as "201 7 SCMI{ I 155, 201 8

MLD 1635, 2014 SCMI{ 749, 2022 YLR

(Ilalochistan) 1620 and Pl.D 1990 Pcshawar 10.

5.Lcarncd counscl lor complainant, whilc rcbutting argulncnts ol lcarncd counscl for the appcllants,, contcndccl thal convicts/ appcllants narncly Muhamrnacl l.iac1a1 and AbdLrl Qayyum had bccn arrestcd on thc spot and thcrclorc, thcir cascs had bccn dillcrcnt fror-n accuscd I Iaidcr Zarralt kl whorn, thc Court bclorv I'rad cxtcndcd bcncllt ol- dor'rbt. I-carncd counscl lurthcr contcndcd that a human bcing cannot bc trcatcd to bc a statuc and that at the timc of

occurrence, the deceased would del'rnitely havc becn trying to savc himself and change his positions, thereforc rccciving of injurics from dilferent angles would not bclied the prosccution story

6.Lcarncd AAG statcd that thc occurrcncc had taken place in city ol Abbottabad and that hospital being at very close distance olhall kilometer, could be reachcd within ten minutes. Leamed AAG also stated that bcing a spot arrest case, regarding accused/ appcllants Liaclat and Abdul Qayyum, wherein rcpofl has also bcen promptly lodgcd, the chanccs of dclibcration and consultations werc not thcre prior to lodging of thc rcporl.

7 Wc have hcard arguments of learned

counsel for thc parties and perused thc rccord.

{l Pcrusal of site plan Ilx PW- I 5/2 reveals that occun'ence had takcn place in the city of Abbottabad on main road. Appcllants namely Liaqat and Abdul Qayyun-r have been arrested immediately aftcr occurrencc while they wcre fleeing frorn thc spot Iior proving their arrest in thc stated manner' prosccution had becn rclying on statcmcnt of I'W 'l.ariq rccordcd as PW-4 and I)W Ajmal Khan SllO

examined as PW-6. Both the appellants mcntioned abovc havc bccn assigned thc rolc of making firing at deceascd narncly Sadiq. Deceased Muhamrnad Sadiq had lbur cntry wounds as pcl Postrnortcm rcport lix PW-9/1. Report in the case had bccn lodgcd with prornptitudc whcrcin rnotive of blood I-cud cnrnity has been rncntioncd. I)rosccution have also bccn able to provc prcscncc oll)Ws on the spot.

9.So lar as eyewitncss account of thc occufrcncc is conccrned, complainant ol thc casc namclv Khanr.vaiz has bccn cxarnincd as I)W- I3 rvho has statcd in his cxamination-in-chicl' that on the day o1'occlrlrcncc. hc along with his lathcr I(ala l(han, Sadiq and Khurshecd had come to IIigh Cor.rrt as a bail application of Khan Muhammad and Sajawal had been fixed bcforc thc Court on 12.05.2017. Whcn thcy had been rcturning li'om this Court and going towards Manschra Wagon Srand, thcy wcrc attacl<cd by thc oppositc par1y, among whom I-iaqat and Abdul Qayyum madc firing on his brothcr Muhamrnad Sadiq whilc Ilashicl (absconding accused) ancl I Iaidcr l.atnan (acquittcd co-accused) madc firing at his lathcr Kala Khan. IIc has also statcd that hc and othcr I)W

Khursheed had been going ahead while his father and brother were coming aftcr them with a distance of 16/17 paces at the time of occurcncc. llc has also stated that hc and his surviving companion namcly Khurshccd ran towards Adda and saved thcmsclvcs, while othcr pcoplc present at thc spot also fled away from the spot. 'l'hey returned thercafter, lifled both the deceased then injured and took them to DI-IQ hospital, Abbottabad. I Ie was also witness to the re covcry mcmo vidc which I0 r'ccovcrcd live crnptics ol 30 bore from the spot and scalcd them in parcel. Similar narrations had also bccn offcrcd by thc other PW namely Muhammad Khurshccd. It is irnportant to be noted that both eyewitnesses have been subjected to cxtraordinary lengthy cross-cxamination, but both thc eycwitnesses havc remaincd firm and consistcnt regarding modc and manner ol commissi<ln of thc offence. No major contradiction could bc solicited lrom thcir mouths. Among mlnor contradictions, learned counsel Ior the appcllants has highlighted their narrations in the cross-exarnination that on their arrival in the hospital, Muhan.rmad Sadiq died. By cornparing said pafl of his staternent with thc statcment of doctor

namely Dr. Muhammad Irshad, (PW-8), wherein he had statcd that at 12:40 PM, he had examined Muhammad Sadiq, the learned counscl was arguing that thc witncss was tclling lic and rcport had not bcen lodgcd with that promptitudc as mentioncd in Murasila i.e. at l2:30 hours, bccause according to doctor, Muharnmad Sadici had becn alive at 12:40 hours.

Whilc stating that on their arrival at hospital Muhammad Sadiq had died, the witncss had not mcntioned any spccific timing. It is important that as pcr Postmortcm lcporl, thc timc bctwecn injury and clcath o1'Muharrn'rad Sadicl l.rad bccn approxinratcly 20 to 40 minutes. 'l-hus difference of five or ten minutes in narration of the occurrencc wherein brothcr and fathel of a pcrson had bccn taken 1o hospital in an extrcmc cmcrgcncy, was not somcthing i,r'l-rich would wcakcn the folcc oL his stalcmcnt. 'l'hc hospital u'as statcd to bc situated at a dislancc of half lo | % kilomcter whcre also thc exact distancc could not bc expected lrom the witnesses, but it is apparcnt that the hospital was situated in samc vicinity.'l'hc occurrencc had takcn placc near a wagon stand and availability of vehiclc for tahing thc injurcd to hospital was alst>

beyond cluestion. In emergency things get quicker and when complainant had started lodging repo( of the occutrcnce in 1en minutcs, thcn thcrc is nothing unnatural 1l-rcrein

t0 What is important to bc noted is that both the cyewitnesses have remaincd consistent regarding all the important aspects of thc case. Nothing could be brought during thcir cross-cxamination which could have shakcn intrinsic worth of thcir testimonies. 'l'hcir prescnce was found provcd lor thc rcason that bail application o I thcir two brothers had bccn fixcd lbr arguments belore this Couft on thc latcful day. Ilaving enmity, coming of morc than onc person for courl attcndancc was also understandablc. Bcsidcs lodging of a prornpt rcport also forfifics thc facturn of their prcscncc. Inqucst report llx PW- 1 0/5 in its column No.

4 indicated namcs olcomplainant as well as the othcr I'W as idcntificrs of thc dcad body. In such situation, thcir prcscncc on thc spot also stands provcd and cstablishcd.

11.l'hc doclor (PW-8), who had examined clcccascd thcn injurcd namcly I(ala l(han, has givcn following nan ation of injulrcs;-

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I . linlrance y,ound: ,,/.t x I /3 inches left side bose oJ' neck interior aspecl inyerted margins.

2.|ixil ll/ound. I % inch x l/3 inches back ofright side o/'chest mid und lower section everterl margin.s y,ilh pro /use bleeding.

3.Oosping.

Similarly, in rcspect of injurcd Muharnmad Sadiq, he had also notcd;

l. Entrance wound: % x % inch lefi iliac fossa interled margins with perJuse bleeding.

2.Enlrance/exit wound across righl forearm 6 inchx I % inches muscle deep.

3.lintrance wound % inchx l/3 inchmidandback oJ le;t'i hond inverted margins with bleeding.

Similar dcscription ofinjuries has bcen givcn by Dr. Syed Imtiaz Ali Shah (PW-9) who conducted postmortcm cxamination of thc dcceascd. In this rcspcct a pafl ol cross cxarnination of Dr. Syed lmtiaz Ali Shah 0'W-9), who had conductcd postmoflcm cxamination ol both thc dcccascd. would also be bcneficial which part is rcproduccd hcrcundcr;

"Il is correcl thal the dimension of injury regard lhe enlry wound No. A(2), entry wound No. C(1), entry wound No D(1) is lxl cm whereas lhe dimension of entrlt wound li(l) is % cnt x % cm. Il is correcl lhal the possibilily canrutl be ruled oul lhat ./ire on the person of deceased Kala Khan were made from ddJbrent ranges. Wilness volunleered thal the

difference belween the dimension of injury ll(l) as t'ompared to otlt(r injuries may depend upon several faclors including lhe dislance o.f .fire, lhe direction o/ the fire, the areo where the hullct hil, lhe muscle mass elc'. "

12.lloth appcllants i.c. Muhammad Liaqat and Abdul Qayyum havc bccn chargcd for making firing at Muhammad Sadiq dcccascd. I Ic had admittc,dly rcccivcd fircarrr injurics. Injurics wcrc also o[ dilfcrcnt dimcnsions. So lar as plca of lcarncd counscl lor thc appcllanls that injurics hacl bccn car-rscd by fir'ing -fi'orn difltrcnt surl-acc lcvcls and ranges, arc conccmcd, samc is not supporlcd by other evidencc on record but the lact that thc victitns had rcceivcd dillcrcnt injuries from dilferent angels was bccausc ol thc lact that ncitl.rcr the victims nor the assailants could bc prcsumcd to bc static and in a constant state at thc lime ol' commission o1' ofl-cncc. 'l'hc dcscription ol injurics in mcdico-legal rcport as wcll as postmoftcm repoft have bccn corroboraling testirnony of tl.rc cyewitncsses, so lar as thc appella.nts namcly Muharnmad Liaqat and Abdul Qayyum arc concernccl.

13.Casc of the respondcnl./acquitte d accused (llaider Zaman) was howevcr, dillcrent in this r"espcct I Ie along with thc absconding co-accuscd namcly Itashid had bccn assigncd thc rolc of firing at deccased Kala Khan. Kala Khan was shown 1o have received onc firearm injury, having a cor:responding cxit wound. It was one of thc factor that the learned trial Court had given hirn bcncfit of doubt in thc shapc ol his accluittal.

t4. Ilcsidcs, appcllants in the conviction appcal namciy Liaqat and Abdul Qayyum had bccn arrested by thc local policc in hot pursuit, immediatcly -fariq after thc occulrence. Prosecution have examined No. 1039 (l'W-4) and Amjad Khan SIIO (PW-6) to provc arrest of the appcllanls imrncdiately after thc occuffence as well as for proving rccovcry ofwcapon of oflcncc lron-r possession of appcllant Muhamrnad Liaqat at the time of his arrest. One of thc issuc highlightcd by learned counsel for the appellants at bar. was that arrest had becn made a1 01 :05/0 1 : 10 PM (noon) as per statement ol l']W-6. In this t'cspect, ir is irnporlant to bc notcd that casc ol'prosecution has not bccn tl-rat of spot arcst but that ol arrcst in hot pursuit

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Appe llants, alicr commission ol'ollbnce havc no doubt flcd away from thc spot and whilc running thelclrorn, they had bccn chascd by thc policemen. It is also in thc cvidcncc of Mushtaq No. 12111iC (PW-5) that appellant Abdul Qayyum, while flecing from the spot, was having opportunity olthrowing pistol in the Nalla near wall of Cantonment Iloard. Ilcsides they had also been armed, having con-rrnittcd an offence momcnls belorc and policemcn would havc bccn on guard so as to ward ol any damagc to thc chasing pany. All this had consumcd timc which is rcflected in timc differcncc betwecn thc occurrencc and arrcst of thc appellants. l-his fact is thcrcfore, not vitiating the weight ofprosccution evidcncc produccd for proving arrcst of thc accuscd after thc occurrcncc. Said evidcncc can, thcrclorc, bc salcly used lbr the purposc ol corroborating the cycwitncss account.

15.So far as contcntion of lcamcd counscl lor the appellants regarding accluittal of co-accused namely Ilaidcr 7,aman is concerncd, we do not agrce with leamcd counsel for appellants that prosecutiou was having satne strcngth of cvidencc against thc convictcd appcllants and thc lcspondent/ accuscd

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namely Muhammad Liaqat and Abdul Qayyum.

Ilyewitne ss account havc no doubt bccn same in respect ol all accuscd but thc dilfcrcncc was lying in corroboration. In rcspcct ol thc convictcd appcllants namely Liaclat and Abdul Qayyum, the eycwitnesses account was fully corroboratcd by their arrest immcdiatcly aftcr occurrcnce, recovery of weapons ol ol'fencc lrom accused Liaqat at thc tirne ol his arrcst (and ln case of appcllant Abdul Qayyum, on his pointalion) ancl matching rcpol'ts ol lrSl. with thc emptics rccovet'ed frorn thc spot. 1.he medico-lcgal repofi of the injurcd was also lending suppod to cyewitness account. In thc casc of acquitted accused narrely IIaidel Zarnan, it is important to be notcd that he could not bc arrcstcd imrncdiately alter thc occurcnce. 'l'hc wcapon of ollincc rccovcrcd on hts pointation was also in rusty condilion. lfSL report Ilx I'W- I 6/ 1 2 though mentions that pistol in queslion was found to bc in working condition, however, there is no report of its n.ratching with ernptics recovcred from thc spot. Moreovcr, no one having such enmity would usc rusty pistol and that also lor killing his cncmy closc to city ccntcr. 'l'hc rcporl of rncdical olliccr was also not

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lending full support to eycwitncss account to the extenl of this pcrson bccausc two pcrsons had bccn chargcd fcl n.raking liring whilc dcceascd Kala Khan had reccived single injury. Possibility of missing onc firc n-ray not bc ruled out but when there are two probabilitics, thc probability lavouring accused would be prelerred. Lcarncd trial Court extcndcd him bcncfit of doubt, as a measure of abundant caution. 'l'his courl whilc rcappraising cvidencc has go1 no reason to dil-fcr with opinion o1' lcarncd trial Courl in this regard. So I'al as argurlcnt of lcarned counscl for thc appcllants rcgarding thc principle "falsus ln uno falsus m omnibus", as cxpounded by honourable Suprcme Court of Pakislan in its .judgrncr.rt rcporlcd as "PLD 2019 SC 527' is concerncd, thcrc is no cavil to such proposition, but whilc accluitting Ilaidcr Zaman, hc had bccn cxtcndcd bcncfit ol doubt as a measurc of bundant caution. Said factum of his acquittal cannot be dubbcd as an alfirmative proof of the fact that the eyewitncsscs havc bcen untruth lul

16.'I'his Court whilc giving its judgmcnt in the casc of "Avnz. Gul Vs. Tlte Stute" (Jail Criminal Appcal No. tt63-P/2019) had also hcld that giving

benellt ofdoubt to an accuscd cannot be construcd in all circun.rslanccs that thc wilnesses had bccn tclling lies. Itclcvanl obscrvations givcn in this rcgard arc lcproduccd hcrcundcr for rcady refcrcncc;

"True lhal initially /bur persons were chargetl in the IrIR bul subsequently during lhe preparalion of the site plan as well as in lhe cross examinalion of the I'}Ws the role of the accused has been dislinguished. More-so, lhe appellant/accused has also made confession ond lhe reporl of recovery of crime weapon and emplies reutvered front llte spot is also in posilive. The learned trial Courl has righlly acquilled lhe co-accused while extending lhem the benefit o/ doubt by considering overall circumstances o;f lhe case, whereas convicted lhe present appellale Ayaz Gul. lJ lhe Courl exlends the beneJit of doubt to an accused person il does nol mean that the wilnesses are nol lrulhful wilnesses. The proseculiotl has successtA Q proved ils case against appellanl lhrough the leslimony ctf injured wilnesses and could nol creale suspicion in eslablishing lhe presence of lhe eyewilnesses on lhe spol as well as of the appellanl al lhe relevanl time and lheir credibility has nol been shatlered, httwever, sanle tr:ould only show tt reasctnttble possibility in ottr mind lhul participalion of acquilled co-accusecl has rutt heen duly proved by lhe proseculion. 11 lime.g, Courl

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exlends beneJit of doubl to some of accused as an obundanl caulion thal will nol cerlainly sign{y that lhe witnesses were nol lrulh/ul. As such lhis Ccturl holds that lhe learned trial Courl has properly evalualed lhe prosecution evidence brought on record by exlending bene/it cy' doubt to acquiued co-accused and righlly convicted and sentenced the appellant lyaz Gul. The acquiltal oJ co-accttsed will nol entilled the appellant lyaz Gul to outright acquitlal. "

Witnesscs in this casc wcre lelatcd to the dcccascd and also inimical towards appcllants bccausc of prcvious cnmity, and thercfore solne conoboration was requircd for relying thcir tcstimony. In the case of convictcd appcllants, thcrc had bccn very strong corroboratory pieces ol cvidcncc agaillst them as discussed above, whilc in casc of acquitted accuscd nan-rcly I Iaidcr Zarnan, corroboration ol a similar standard had not bccn availablc. In such circumstanccs learncd trial Courl had rightly trcated case ol the convictcd appcllants dilferently lrorn that of thc acquittcd accuscd (respondcnt in Cr. A No. 211- Al2020)

17.In vicw ol' what is statcd above it was lound that prosccution has provcd guilt of thc

appellants namcly Muhamrnad Liaqat and Abdul Qayyun.r through cogcnt and confidence inspiring cvidcncc. '[ hc lcarned trial Court has rightly n.rade conviction and awardcd sentcnccs to thcm which nccds no interlercnce by this Court and the conviction and sentcncc awardcd to thc appcllants are therefore, maintaincd and the appcal is dismisscd.

18 So far as crirninal rcvision lor cnhanccrncnt of sentcnce bcaling No. 43-A12020 ts conccLnccl, wc havc considcrcd submissions oflearned counscl for pctitioncr in this rcspccl but we are not inclined to cnhancc thc pcnalty awardcd by learncd trial Court. Minor wcakncsscs in thc case ol prosccution which could not be considered lbr acquittal ol thc accuscd, may well bc takcn into accouut lor lcsscr punishment as hcld by thc august Suprcnrc Court of Pakistan in thc case ot "Feroz Khtrtt Vs. The Slote" rcporled as 2002 SCMR 1999.lnlhis CASC also, thc minor weakncsscs highlighted by learncd counscl lbr thc respondcnts/conv icts wcrc not considelablc lor a casc lor accluittal, but sarnc may wcll bc kcpt in thc background, whilc opting lor a lcsscr scntcncc ol'lifc itrprisontnct-tt. Scntencc of lilc

imprisonment awardcd to both appcllants namcly Muhammad Liaclat and Abdul Qayyum does not warranl a rcvicw in thc instant Criminal ltcvision.

Same was also found divested of n-rerits and is accordingly dismisscd. Similarly, connected criminal appeal bearing No. 211-Al2020, llled by complainant against acquittal of co-accuscd llaider Z,aman, in vicw ofdiscussions rnadc hcreinabovc. had also been Ibund divcslcd of n-rcrits and samc is also dismisse d Heard and Announced on.

Dt. 08.02.2023 Prepared and si q ned on

UDGE

JUDGE

lhn hh. Jt\tLt\ llilat lht dl .t lt.tatlSthlrun