Aqal Zameer Vs Mohi-ud-Din & The State

JUDGMENT SHEET

IN THE PESHA WAR HIGH COURT,

BA NNU BENCH.

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Cr. 'I !\'O. 28-B of2014 wi//i Cr. IA No.26-B of 2014 /1(1(11 ./a,neer J,ic fu(')hi-1i(/-Dii1 ((/1(1 1/u' S1(it('.

iUDGl'[ENT D:itc olcaritu& 27.01.2016

Appelliuii-Pcii inner

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1UIIAM.AMl) YOUIS T1lAI1EE'h .1:- [he apnellant, :\CiaI Zmecr. throucii the instant appeal has c ahlenged his ccnvrction :ud sentence recorded by the learned /\dditiol)itl Sessions .1 dcc. Karak vide judc,nient dated 27.02.201 'I, \veh\' he has been convicted under See tiori 302 (b) PPC and :ellteItce(l to death \vith Inc Rs.200000/- (Ivo hacs). The amount of Ine realized, shall be paid to the Icoal heirs of the (lccea.ed :t ert cns:tt on tinder Scct.i()n 544-A Cr.FC'. In case

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of default of pvment of line. the convict shall undergo stniple imprisonment for a term of six months. He was foiTher citvicted under sectiun 324 PIC and sentenced to imprisonment for ten (10) years and also lined to the tune of Rs.50..000/- Fitiv thousand). In case of default of payment of hne. the convict shall undergo simple imprisonment for two

(02)\Cars. lie was further convicted under Section 337-A (I) PPC and sentenced to imprisonment for two (02) years with daman Rs.40.000!-(Fortv thousand) to injured-complainant Nlohi-ud-1)in. i3enelit of section 32-13 Cr.PC also extended to the convict. The amount of line recoverable as arrears of land re\enuc tram the person and estate or the convict Alt the scfltCnCCS shall run concurrently.

2.Aloii&vith instant ci'iminal appeal, the convict also tiled criminal jail appeal No.26-13 of 2014 against the same judgment of conviction and setuence. As the above mentioned appeal has been tiled through counsel is argued be fore its, the Criminal Jail Appeal No.26-13 of 2014, has become in Iructu' us, hence, disposed of as such.

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3.Murder reference has also been put up before us for con lirmation.

.1. the story of prosecution as disclosed in the F.L.R Ex:l:\ may bricilv be narrated as follows:

5 On 14.01 .2013 at 12.40 hours, the complainant Mob i-nd-din alongwith Bakhtawar Jan in injured condition and incorrect sen s rcporte(' the matter to the incharge local police at Iimei1 cncv Room of District l-leadquarter 1-lospital. KD.\ K'rak, to the effect that at 11.45 hours, they oil r motorbike were going towards for condolence of Molvi Muhammad Shall Ahmad Khel when reached near Mosque. villate Kotav Kala Alaadi, accused Aqal Zameer alias Sarkav armed with Double Barrel shotgun was present who on Seeing. started tiring at them with the intention to kill us, as a result of which they both injured, while the accused decamped from the spot. The occurrence was witnessed by him and injured Bakhtawar Jan. No motive has been alleged by the complainant in their report.

I 6. AlIer Writing report of the complainant, in shape of \/,,rasiIa Ex: PW 7/1 it was read over and explained to him, who after admitting it to b correct signed the same as a token of its coi-rectncss. The Murasilci was sent to the Police Station, which culminated into registration of FIR Ex:P:\. The report receiving oflicci, Namatullah Khan SI. (P\\'- I 2) prepared injury sheet of both the injured (Ex:P\V 12/1 & Ex: PWI 2/2) and sent for medical examination under the escort of Noor Aslam No.374 (P\V- 5). E3oth the injured were medically examined vide medical reports Ex:PW 1/3 and PW 1/1, while the condition of injured l3akhtavar Jan was found serious, therefore, he was rel'erred to C.\1I I Kohat, 'vhere he succumbed to the injuries on 1 S.0 I .201 3 at 14 10 how's, therefore, section of, law was altered from 324 1IC to 302 PPC. Death certi licatc of deceased I3akhuiwar Jan is Ex:P\\'I 1/9. Raufullah SI (PW-

Ii)duritm investiaLion prepared the site plan (Ex:PB), took intO possession one Motorcycle No.LB- 199 Yamaha, rC(l colour, blood sinned white cap and blood stained chaddar,

beIoni.int to injured- comphu nant, blood stained small pebbles from the place of' injured vide recovery Memo

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Ex:P\\' 911. Two empties shells 01 12 bore vide recovery memo 1x. P\V °!2. The IC) also tooL into possession the blood stained iairnetus of injured/ complainant vide recovery memo Ex:PC and blood stained garments of deceased md udi I g phial containing pellet recovered from the b0dV of clece;ied Ex:PW 10/1 The 10 conducted raid at the house of accused, who was not found, however, from the residential room of accusedJ convict a Double barrel shotgun nlone, ith a banclolier containing 20 live rounds was recovered, for which a separate case under section 13 AU WaS reuistercd. Recovered blood stained garments as 'cll as articles Were sent to FSL and report of FSL Ex:P\V 11/5 and Ex: P\V 11/6 were placed on tile by the 10. The lO recorded statements of P\Vs under section 161 Cr.PC and after completion of investigation submitted ompletc challan for trial.

7.For the commenccmeltt of trial, the learned trial euurt cutnj)l ed with the provision of 205-C Cr. FU and thercaler framed the charge atainst the appellant, to which he pleaded not guilty and claimed trial. The prosecution in order to prove guilt of appellant produced and examined as mart as twelve (12) P\\'s. On close of prosecution evidence, statemem of accused/appellant vas recorded tinder section 342 Cr.PC, wherein he pro lsscd his innocence, however, he did not opt to be examined on oath.

The learned trial Court after hearing arguments of learned counsel for the patties while holding guilty the appellant convicted and sentence him VidC impugned judgment as referred above.

We have heard arguments of learned counsel for the panics and gone through the record of the case.

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9.It appears from the F.LR (Ex: PA) that in this case the occurre• cc took 1 lace on 14.01.2013 at 11.45 hours, whereas thu report has t)ecn lodged on the same date

at I 2.-IC) hours. As per record, distance between the place of occurrence and 1)1 IQ hospital, K D,\, Karak where the report has been lodeed is about 15 K.M, hence, in view of' the facts and ein.umstances or the case, the report has been Iodted within reasonable time of one hour of the occurrence.

10.The place of occurrence, as alleged by the coniplainant, is cuIl)lished by the recoveries of two 12 bore, empties 1mm the places of the appellant-convict, recovery of' blood stained Chader, a cape, blood stained pebbles, and a motorcycle No. I 99/LM, Yamaha, red colour, vide recovery Memo Ex: PW 9/i, during spot inspection by the 1.0. \Vhile the cictncc has neither challenged the venue Of occurrence during the trial nor any argument has been advanced on this aspect of the case. Besides that, the FSL report is also in line in this recard that these were fired from 12 bore DE3131. Shotgun No. B 2640, recovered from the house of appel ant/ convict. So by this recovety, it

established that the assailant was the convict/ appellant, present at the spot.

11.Now the question is Icit that whether the complainant was present with the deceased at the time of occurrence or not? :\ccordintz to the complainant's version, he was proceed im for olic ring Fat iha in company of' deceased on nlotorcve Ic on the dein i se of' Mol vi M uham mad Shall :\hnd Khel. when the - reached at the place of, Occurrence, the appellanti convict fired at them, as a result of which both \ ,erc hit and sustained injuries, while 13a1Juawai J an latetn succum bed. FSL report regarding lhood stained pebbles from the place of' occurrence s as velh as blood st:ti ned taimenis of' the injured/ compla nailt and deceased. cstabli:.lied that the complainant, as well as deceased were present at the spot. Learned counsel for appellant coukl no bring on record or even rebut the stance that they were not present at the spot, so there is no reason to clisbelieve this vt'rsion of the complainant unless theme are

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some compel lin or reasonable circumstances to disbelieve their presence. 5/

1 2. Besides, it is undisputed that wives of both the complainant and deceased Bahiavar Jan were sisters inici' se and the dcca cd having blood kud with the appel lam, wh i k compluinai ii haviu neither any motive, nor any blood lend with the appellant. Thus there is no reason to l'alscly implicate the appellant. It is also unbelievable that the complainant would substitute the appellant with the real culprit by charging him falsely. Even otherwise, substitution for the real culprits is a tare phenomenon, because nobody would spare the actual culprits far such a heinous crime and would lhlselv implicate an innocent person and that too, when there is no previous enniitv.

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I 3. The complainant Mohi-ud-Din injured as per FIR, is the star eve-witness of the occurrence, who during the occurrence also received injuries and his presence at the spot

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has also been proved as discussed above. I-Ic narrated the same facts, as mentioned iii the FIR.

Learned counsel fbr appellant was of the view that the comp!aimtn( in his statement made improvements, as that •wh'n he raw i/u! ?ccu.ec/ (liming i'it/7 his doul,fe /)ar,'e/

Shot gzuz a, the/i?. he lurjw(l hack the /noforcyc/e" and .veconcl/y "Pt!' ,/st. K/rafjdc, :\'is,Ce/7 was hot hitCh?! toned CZS WitflCss in

the FIR and her .ctalen,cnf u's 16/ Cr. PC was rctcorclec/ by 1.0 afici'u'arcl who (i/SO Witfle.c.r u( / thu ocCn,7ciice iifl/)rore/)u!n,s

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No doubt, this jart ol' the statement has not been mentioned in th FIR but this fact does not shatter the enti ic prosecution case, as the fact alleged in his Statement corroborate the medical and circumstantial evidence, it' at least, its benefit extendec to the appellant, it may be considered a

mitigating circumst,ince in his favour.

I ô. So lar as \vltllcsslng of the occurrence, by Mst.

Khalida Nasicen, vifc of deceased is concerned. Statedly she was standing near the door of hcr house, from where she saw

the occurrence which took place near llujra adjacent to their house and the Complainant and deceased, then injured, were taken to the hosptal from the place of Occurrence, there is strong presumption that he (complainant) might have not seen Msi. Khal ida Nai ecu that he was witnessing the occurrence behind them, hence his name is omitted in the FIR. Hence, such omission is also not fital to the case of prosecution Statemerus of both the cve-wiulesses are in line with the prosecution story, corroborating each other on other Facts and circumstances of the case and both were subjected to lengthy and searching cross-examinatioj. If statement of one \VitiicsS Ms. Khalicla Nasreen is discarded, then too case against the appellant is proved by cogent, reliable, trustvoii.liy and natural evidence of complainant, the eye-witness. In case titled, "Klzurs/,jd Vs The State" P L 1) 1996 S C, 305, in Paragraph No. Ii. the Hon'ble Supreme Court observed as follows:- Tue C'ouri's approach, ivhiie appraisiuç' the euic,ice, s/ia aid he (I'/1U/fljC and 1101 Static. II s/iou/ti kee1) in .t.

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p/jj' all the facic (1/ui Cl/e:l/)1SI(1,,c.e.j of the CaSe (1/1(1 it is .satiflc(/ I/iu!

fact,ia//. the person c/za,red with the tL1 ofji'nc /1(73 CO/il,;: itleil the SO/He, it s/Iou/il record the con l'ictio11 I/long/i lucre ':ziqht ha '' bee,, So/ne k'c/z,JjcllI lapses on the part of the in t'estiguIi,,g pPO 'ided the SO/nC

have in-if Prejudice1! the (lcci,.ved in the fair trial. The people are losing fail/i in the Crjin iuti/ fl/il/cia! S3'Ste/,z for the rca.so,z (/1(1! 1/1 1110sf of the CrUflj/1j/ ç the (r/,uj,:(,/ e, Is'it/w iii being Pl1lfl.slJe(/ on leC'/i/7ic(,/j//e., ".

We ale of the view that gui It of the appcllam

has been proved horn the COnfidence rnSpring testimony of he eve-wjtlesSc which lends Support froni the site plan, recovers' 11101110s, p;.t1icijfajl' recovery of crime weapon from the resident at house of the appellant and report of experts. It is a u;ise of Single aCcused and in the

cIrcumstances It is htghlv Improbable to say that the aPpeIlant has been substituted with the real culprit and thus we have no doubt n our ni nd that the charge against the

appellant has been proved beyond any shadow of doubt and that he has riehi iy been convicted.

1 8. Nov.- the question for determination of this court is as to what was the quantum of sentence and whether penalty Of death voukl meet the ends ot'justiee?

19.According to the F.l.R, appellant Aqal Zameer, niade firing at the complainant and as well as on l3akhtawar Jan, as a result of which both sustained injuries, while later on Bakhtawar Jan succumbed to his injuries. Medical report of both the injured as well as deceased are placed on file, while after death of l3akhtawar Jan, his death certificate has been brought on record, while his post mortem report is not available as he died in Combined Military Hospital Kohat and only non-availability of Post Mgi-tern report does not entitle accused/appellant for his acquittal particularly in vie' of the niedicil reanris is v.'l I MZ Cirld-Ir wrntint

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are of the view that sentence of life shall be sufficient to meet the ends of justice.

20.We thus as discussed above, while maintaining the conviction of appellant under section 302 (b) P.P.C.

commute the sentence of death to imprisonment for life. The other sentences shall remain intact. Benefit of section 382-B Cr.P.C. shall also be extended to the appellant.

is. \\'ith above modification, we dismiss the appeal of the appt llant-con'ict and the Murder Refei-ence is answered in neeative. as death sentence is not confirmed.

±ixiounce d.

JUDGE

JUDE

cERTIFUm TC(E TRU€ COPV

tr;.: Bench Amcle 87 o iv Thp ii ..:i .ILIM jidei 1