Iqbal Khan Vs The State and others

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

I BENCH

JUDICIAL DEPARTMENT

Cr AppealNo 254-A/2021

JUDGMENT

Date of hearing 28.02.2022

Appellant (lqbal Khan) By I\/r Javed Khan Tanoli. Advocate Respondent. (State) By IVr Salid ur Rehman Khan, Assistant A G and (Complainant) By l\ilr Naseer Ahmad Khan Tanoli. Advocate.

WIQAR AHMAD, J.- Accordin g to prosecution story, as narrated in FIR (Ex PA), it was on 15.05 2016 at 09:30 hours when complainant of the case namely lVlst Shehnaz Bibi (PW-09) while reporting the crime lo [/lunir Ahmad (PW

06)at Emergency Ward of DHQ Hospital Abbottabad alleged that on the fateful day at 09:00 hours her deceased son (lVluhammad Qasim) had been going to market and when he reached near house of [\/uhammad Nazir (PW- 10), there Muhammad Nazir had been altercatinq with l'/luhammad lqbal (appellant). The latter had made firing upon lt4uhammad Nazir (PW-10) and her son N/luhammad Qasim (deceased than alive), as a result of which. her son had received inlury on his head. As per crime report, when the

injured was being shifted to hospital, he had succumbed to the injuries and died on the way The occurrence was stated to have also been witnessed by [t/luhammad Awais (PW-1 1) and [/luhammad Nazir (PW-10) beside other people present at the spot. On report of the complainant, lVlurasila (Ex PB) was drafted by lVlunir Ahmad, Sl (PW-06) which was sent to Police Station, whereupon the ibid FIR (Ex PA) was registered

2.After completion of investigation, challan was submitted before learned trial court Appellant was put to trial before the court of learned Additional Sessions Judge-lV / Judge CP/ JC Abbottabad in case FIR No 235 dated 15.05.2016 registered under Section 302 PPC at Police Station City Abbottabad. Formal charge was framed against appellant, to which he pleaded not guilty and claimed trial ln order to prove its case, prosecution produced twelve (12) witnesses, whereafter accused was examined under Section 342 Cr P C. He denied the allegations and professed innocence, however, he neither opted to be examined on oath nor produced evidence in his defence After having been found guilty for committing murder of

deceased Qasim Khan, at the conclusion of trial, he was convicted under Section 302 (b) PPC and sentenced to life imprisonment besides being burdened with compensation amounting to Rs.5,00,000i-, payable to legal heirs of deceased under Section 544-4 Cr. P C or in default of suffer further six (06) months S l. vide impugned judgment dated 29 112021 He has also been convicted under Section 324 PPC for attempting at the life of Nazir Khan and sentenced to ten (10) years R.l with a fine of Rs 1,00 000/ or in default to suffer three (03) months S.l All the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P C. Since the complainant has also filed Criminal Revision No.15-A12022 for enhancement of sentence of the appellant, therefore, we propose to decide both these matters together through this single judgment

3.We have heard arguments of learned counsel for the parties as well as learned Assistant Advocate General and gone through the record

4.Perusal of record reveals that prosecution has been relying upon eyewitness account of the occurrence offered by lVluhammad Nazir (PW 10)

and l\,4uhammad Awais (PW 1 1) The corroboratory evidence included recovery of weapon of offence on pointation of the appellant and its matching report with the empties recovered from the spot

5 Complainant of the case was not an eyewitness. She was mother of the deceased, who was examined as PW-09. ln her first report as well as in exam inalion-in-ch ief she has stated that her son had left his house for the market on 1505.2016 at 09.00 hours and when he had reached near house of one lt/luhammad lqbal, there [,4uhammad Nazir (PW-10) and appellant (N/luhammad lqbal) had been altercating with each other Appellant was further alleged to have made firing as a result of which her son Qasim Khan (deceased) got hit on his head The occurrence was also stated to have been witnessed by lVluhammad Awais (PW 11), beside lVuharnmad Nazir (PW-10). She was briefly cross-examined but nothing could be brought from her mouth, showing existence of any malafide or previous enmity with the appellant Nluhammad Nazir was examined as PW-10 t-te has stated in his exa mination-in-ch ief that

appellant had beaten wife and children of the witness, a day before the occurrence i.e. on 14 05.2016 regarding which he had also submitted an application in the police station, a copy of which was exhibited as Ex PW 10/1 He has statedly left his house on 15 05.2016 at 09 00 hours and while going towards his under construction house, he had met lVuhammad lqbal (appellant) who had felt enraged and threatened him due to lodging of report against him Appellant was also alleged to have started firing at the witness, one of which had hit the deceased on his head, resulting into his death. He has also stated that mother of the deceased reached at the place of occurrence thereafter she had been informed about the occurrence and she had also subsequently lodged report at DHQ Hospital, after shifting of the deceased to hospital ln the cross- examination, main focus of the cross-examiner had been on the fact that this witness had not stated in his 161 Cr P C statement that appellant had threatened him and that he had not mentioned in his 164 Cr.P.C statement that the other PW N/luhammad Awais had also witnessed the occurrence. Excepl suggestions and ts

denial, nothing beneficial to the case of appellant could be solicited from his mouth by the cross examtner So far as not naming other eyewitness in 161 Cr.P C statement is concerned it is important to be noted that presence of said PW had been mentioned by complainant whiie lodging first report of the occurrence The inquest report also indicated his presence a1 the time of handing over dead body of the deceased at the hospital. In the site plan, lnvestigating Officer of the case has also marked his presence at point No 3 The site plan had also been prepared on joint pointation of both the eyewitnesses Statement of one of the eyewitness namely lVluhammad Nazir (PW-10) had been recorded under Section 16'1 Cr.P.C on the first day of occurrence while statement of lVluhammad Awais (PW 1 1) had been recorded by the lnvestigating Officer on second day of occurrence. ln such circumstances, mere omission to name the other PW in 161 Cr.P.C statement of Nluhammad Nazir (PW-10) would not make much difference Statement of other eyewitness namely, I\/luhammad Awais has also remained fully consistent and confidence inspiring. Presence ot

both the PWs stood well established. Their lestimonies have also remained consistent rnler SC regarding the mode and manner of OCCUTTCNCE Same is also corroborated by arrest of the accused on the day of occurrence alongwith a licensed 30 bore pistol recovered vide recovery memo Ex.PW-411 Two empties of 3O-bore, recovered vide recovery memo Ex PW- 612 from the spot, had also been sent to FSL on 15.05 2016 for the purpose of comparison, report received therefrom was in affirmative and providing sufficient corroboration to case of prosecution

6.N/ledico-legal report was also supporting case of prosecution Dr Syed lmtiaz Shah while deposing as PW-05 has stated that deceased had been brought before him on 'l 5.05.2016 at 10:30 hours by Constable Zubair No 05 and that on his examination he had found the following injuries on his person;

lniuries.

1.An entry wound of 1 x '/, inches with fractured of under lying bond in present over the left forehead 3 x % inches above the lefl eye brow with oozing of fresh blood with inveied

margins. Under lying bony crepitus is felt

2 An exit wound of % x % rnches is present over the scalp in occipital region just to the right of mid line of occipital region. Evefted margins with brain ntatter cominq out of the exit would Oozrng of frcsh blood on exit wottnd

Peri orbital blackening around both eyes and swelling "

7.lt was a case of single accused to whom complainant had not been inimical earlier No reason existed why should he be substiiuted for the real culprit Substitution in such like cases is a rare phenomena. Reliance may here be placed on judgment of Hon'ble Supreme Court of Pakistan delivered in the case of "lVluhammad Sadlq Vs. fhe State" reported as 2022 SCMR

690.Evidence of prosecution has remained fully consistent against the appellant, establishing his culpability beyond reasonable doubt Case of the prosecution WAS supported by medico-legal evidence and also corroborated by evidence of recovery of weapon of offence and its matching FSL report. The learned trial court has rightly found him guilty for commission of the offence

and accordingly convicted him under Section 302

(b)PPC

B. There remains no doubt about the criminal liability ensued by the appellant for committing Qatl-e-Amd. As per story of prosecution. he was not having any molive for killing the deceased and had in fact been aiming his pistol on IVluhammad Nazir (PW-10) for killing him but due to fate or missing of fire the deceased had been done to death He had in fact intended to kill I\,4uhammad Nazir but had killed deceased Qasim in the affair. lt was a case of transferred nralice for which legislature has already put tn p lace Section 301 PPC. Said provision of law being relevant here is reproduced for ready reference;

"301. Causing death of person other than the person whose death was intended:

Where a person, by doing anything wl'tich he intends or knows to be likely to cause death, causes death of any person whose death he neither intends nor knows himself to be likely to cause, such an act committed by the offender shall be Iiable for Qatl-e-Amd "

9.Law has left no room for doubt lhat if a person intends killing of one person but kills

another as the result of firinq so made, he shall be treated to have committed Qatl-e-Amd of the deceased. "Where a defendant intends to kill or cause serious injury to one victim, Vl" as held by Supreme Court of United Kingdom in the case of R Vs. Gnango reported as2012 SCMR 1442 "but accidentally kills another, V2, he will be guilty of the mr-rrder of V2 The basis of this liability is customarily described as "transferred malice", although a better description might be "transferred mens rea". The doctrine applies to secondary parties as it does to principal offenders. Thus if D2 attempts to aid. abet, counsel or procure D1 to murder V1 but D'1 , intending to kill V1 , accidentally kills V2 instead.

D2 will be guilty of the murder of V2."

10 Similarly, Hon'ble Supreme Court of Pakistan while delivering its verdict in the case of "Abdullah Khan Vs. Sahib Dad Khan & others" reported as 1977 SCMR 185 has also held, "Sahib Dad fired thrice and this showed that he was determined to kill PW Abdullah Raf iullah. however. inteNened and he was hil and killed The facts of the case, therefore, fall scluarely wtthin the terms of Section 301 of the Code. and Sahib Dad ntust be held gL.rtlty of

ll

murder Ltnde Section 302 of the Code although he never intended to kill Rafiullah."

Further reliance in this respect may also be placed on the judgment rendered by Hon'ble Supreme Court of lndia in the case of 'Jagpai Singh & others Vs. The Statc of Punlab" reported as AIR 1991 SC 982 as well as in the case of ''Shankarla Kachrabhai & olhers V.s State of Gularal" reported as AIR 'l 965 SC 1260

11.ln light of what has been discussed above, the sentence awarded to appellant under Section 302 (b) PPC by learned trial court was also found in accordance with law and resultantly, this appeal being without any substance is hereby d ism isse d

12 So far as criminal revision bearing No 15- A12022 is concerned, it is important to be noted that appellant was not having a motive for commission of the offence He had just made two

(02)fires and that also at an occasion where PW N/luhammad Nazir had been altercating with him We have no record regarding the sort of altercation they were having at the relevant time ln such circumstances, award of alternate punishment of life imprisonment was found

justif ied and the revision petition, mentioned above, was found divested of any force which IS also dismissed

Heard & Announced On

Prepared & Signed On

JUDGE

J GE

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