Gul Nawaz Khan Vs The state etc

.ludgmcnt Shcct

I'ESHAWARHI(}H COURT I}ANNU I}ENCH

(,lud ic io I l)epartme nt)

r.A No.64-B of 2022

(]ul Nawaz Khan Vs Thc Statc etc

JUDGMENT

Ior appcllant: Muhammad Salccm Awan Advocate lior rcspondcnt Pir Shahan Liaqat Sayyed Advocatc Iror Statc: Mr. Umer Qayyum. Asstt. A.G.

I)atc ol'hcaring: 14.06.2023

Dr. Khurshid lqbol, J.--

FACTS:

l. (lul Nawaz Khan (appcllant) was tricd by thc lcamcd Additional Scssions Judgc-lV / Modcl Criminal 'l'rial Courl (MC'|C), Ilannu, pursuant to a casc rcgistcrcd vidc IilR No.398, datcd 23.06.2016, under scctions 30213241337-I)1337-A(i), PPC, at Policc Slation Mandan, Ilannu. On conclusion of thc trial, thc 'l'rial Court convictcd thc appcllant under scctions 3021324, PPC,, and acquittcd him lrom thc chargcs under scolions 337-D1337-L(i), PPC. It rccordcd thc conviction and scntcncc in thc lollowing tcnns:

Accuscd Gul Nawaz Khan is convictcd and scntcnccd undcr scction 302(b) Pl,c to

imprisonment for lifc as ta'zir. Hc shall also pay compcnsation to thc tunc of Rs.5,00,000/- to thc lcgal hcirs of thc dcccascd within thc ambit of scction 544-A of thc Criminal Proccdurc Codc, 1898.

'l'he samc shall bc rccoverablc as arrcars of land revenuc and in dcfault of paymcnt of such compensation, thc convict shall suffcr further S.l for six months.

ii. Hc is furthcr convicted UIS 324 PPC to six ycars R.I with finc of Rs.60,000/- payable to both the injurcd pcrsons (i.c. Rs.30,000/- cach).

iii. lirth thc aforcsaid scntcnccs of imprisonmcnt shall run concurrcntly. llcncfit of scction 382- l! Cr.P.C is cxtcndcd to thc convict.

2.On 23.06.2016 aL 22:30 hours, complainant Shcr Wali Khan, alongwith thc dcad body of his dcccascd ncphcw [Jmcr I)araz Khan, his sistcr-in-law Ms. Gul Qasim Jana Bibi and ncighbour Ms. Mala Ilibi, injurcd-victims, rcponcd in thc Iimcrgcncy Ward of Civil Ilospital, Ilannu that on thc night of thc occurrcncc, hc, alongwith his ncphcws lJmcr Daraz, Arsalan, sistcr-in-law Ms. Gul Qasim Jana and ncighbour Ms.

Mala llibi, wcrc prcscnt in thc housc of [Jmcr l)araz. t\t 21,:30 hours, appcllant-accuscd Gul Nawaz Khan cntcrcd inlo thc housc and staflcd altcrcation with llmcr l)arat,. During thc altcrcation, hc pullcd out his pistol and startcd firing at lJmcr I)araz, Ms. Gul Qasim Jana and Ms. Mala Ilibi in ordcr to

commit thcir Qatl-i-Amd. As a rcsult, thoy got hit and injurcd, whcrcas thc complainant and his ncphcw Arsalan luckily cscapcd unhurt. Amongst thc injurcd, Umcr l)araz, succumbcd to his injurics on thc spot. 'l'hc appcllant also fircd at himscll, thc complainant addcd. 'l'hc appcllant rcgistcrcd a cross casc lrll( No.399 in which hc chargcd thc complainant for firing at him. Motivc lbr thc occurrcncc was discloscd as a disputc ovcr womcnlolk.

THE TIIIAL:

3.A ltcr cornplction ol' invcstigation, rcport undcr scction 173 Cr.P.C was submittcd bclorc thc 'l'rial Court. Copics of statcmcnts and documcnts wcrc supplicd to thc appcllant within thc mcaning ol'scction 265-C Cr.l'.C. IIc was chargc shcctcd, to which hc didn't plcad guilty and claimed trial. 'l'hc secution in ordcr to provc its casc produccd l4 witncsscs. In his statcmcnt rccordcd undcr scction 342 Cr.l>.C, thc appcllant plcadcd his innoccncc and rclul.cd all thc allcgations lcvclcd against him. I lowcvcr, hc did not opt to appcar as his own witncss on oath as providcd undcr scction 340(2) Cr.P.C in disproof ol'thc allcgations lcvcllcd against him. I Ic also did not producc any cvidcncc in his dcfcncc. Aftcr hcaring arguments of thc prosccution and dcl'cncc, thc trial court convictcd thc appcllant undcr 3021324, l)l)C, as pcr thc dctails stalcd abovc, and acquittcd him lrom thc chargcs undcr 337-Dl337-L(i),

PPC.

HI]ARING:

4.Wc havc hcard lcarncd counscl lbr thc partics at lcngth and pcruscd thc cvidcncc availablc on thc rccord with thcir ablc asslstancc,

IIIIAPPITAISAL OF EVI I)DNCf, :

5.Wc proposc to rcappraisc thc prosccution cvidcncc in thc [ollowing parts

A. Ocuhr occounl

6.Wc shall bcgin with thc ocular account, as thc prosccution casc prirrarily dcpcnds on this kind o[cvidcncc. It was furnishcd by thc complainanl. Shcr Wali Khan and Ms.

Qasim Jana, thc injurcd mothcr of thc dcccascd lJmcr I)araz (l'}Ws 8 and 9). In thcir rcspcctivc statcmcnts rccordcd as cxaminations-in-chicl, thcy rcstalcd thc proseculion story almost in thc samc dctails as it was statcd as first inlormation in thc murasila rccordcd in thc I)l lQ hospital in llannu. Kcy aspccts on which thcy wcrc cross-cxamincd pc(ains to: thc rclation ol thc appcllant with thc dcccascd and thc injurcd Gul Qasim Jana at timc ol' thc incidcnt, thc purposc of thc complainant and ol'thc injurcd Ms. Mala Ilibi in thc housc of thc dcccascd; and, thc momcnt ofdcath ofthc dcccascd; and thc motlvc

7.lirorn thcir cross-cxamination, it is rcflcctcd that thc appcllant is thc son-in-law o1' Ms. (iul Qasim Jana as Ms.

Shahccna, hcr daughlcr is his wifc. At thc timc of thc incidcnt, Ms. Shahccna was not prcscnt in hcr housc. 'l'hc complainant is thc brothcr ol latc (iu[ Sharitutlah Khan, husband of Ms. Gul Qasim Jana and lathcr ol thc dcccascd lJmcr l)aru. and Arsalan. I lc livcs scparatcly. I Ic visits thcir housc daily. Ms.

Mala Ilibi is an alghan woman, rcsiding in thcir ncighbourhood Shc lctchcs watcr lrom a watcr pump in thcir housc. On thc cvcntful night, an ahcrcation cnsucd bctwccn thc appcllant,, Ms.

Gul Qasirn Jana and lJmcr I)araz. I)uring thc altcrcation, thc appcllant took out his pistol and opcncd firc which hit Umcr I)araz, Ms. Gul Qasim Jana and Ms. Mala Ilibi. As a rcsult of thc lrring ol thc appcllant,, lJmcr l)araz. dial on thc spot and thc two womcn injurcd.'l'hc appcllant also fircd a1 himsclf in ordcr [o crcatc a cross vcrsion of thc incidcnt. I Ic chargcd thc complainant Shcr Wali Khan lor liring at him. I Ls oasc was rcgistercd on thc basis of l;ll{ No.399 on 23.06.2016 UIS 324, PPC. Wc will cxaminc thc cross casc latcr in this judgmcnt in grcatcr dctails. 'l'hc motivc of incidcnt was that Ms. Gul Qasim has anothcr daughtcr by thc namc Ms. Amrccna Ilibi. 'l'hc farnily had somc disputc rcgarding thc alorcsaid Ms. Amrccna.

'l'hc tirnc ol thc incidcnt was not challcngcd in thc cross cxaminati<ln. I lowcvcr, thc cornplainant was askcd about his

rcading of watch lor thc purposc of timc. I Ic rcplicd that hc can't undcrstand watch rcading. Ilowcvcr, in rcply to anothcr qucstion, il. was rathcr conllnncd lrom him that thc incidcnt took placc in thc month ol llamadhan, and thc tawarch praycr was finishcd at that timc. llc spccifically statcd that thc timc of thc incidcnt was 2l:30 hours. Ilcncc, thc dclcncc failcd to crcate a matcrial dcnt about the timc of thc incidcnt. It is, howcvcr,, important to notc that rcgarding thc prcscncc of Ms.

Arnrccna Ilibi, both thc I)Ws wcrc not in unison. 'l'hc complainant statcd that Ms. Amrccna is rcsiding in Karachi and that shc was not prcscnt at thc timc of incidcnt. Ms. Gul Qasim Jana contradictcd thc complainant, stating that Ms. Amrccna was prcscnt in thc housc at that timc. 'l'hc appcllant in his qtu judicial conlcssion statcd that Ms. Amrccna was prcscnt and that hc llrcd at hcr with criminal intcntion, and not at all othcrs.

Wc will dilatc upon this aspcct ol thc casc latcr in this judgmcnt. Ol'grcat significancc is thc lact that thc prcscncc of thc appcllant at thc placc ol thc incidcnt, indccd, couldn't bc disputcd. 'l'hc complainant dcnicd a suggcstion that hc was not prcsent on thc spot. 'l'his suggcstion, too, is lactually wrong for thc rcason that thc appcllant in his cross rcporl chargcd him lor allcgcdly liring at him.

8.At thc bchcst ol thc complainant, Inspcctor llidayat-ur- Itahman, Invcstigating Olllccr (1O/PWl2), prcparcd thc sitc

plan (lixPI)). As dcpictcd in thc sitc plan, thc housc, whcrc thc incidcnt took placc, is situatcd north-south, having its main cntry gatc in thc north; a washroom linkcd to thc northcm wall, having opcning towards south; two rooms with thcir doors opcning toward north; and in thc cxtrcmc south, thcrc is small vacant placc. 'l'hc incidcnt took placc in thc courtyard. 'l'hc complainant and Arsalan wcrc at points I and 5, ncar thc castcm wall; Ms. Gul Qasim Jana, thc dcccascd and Ms. Mala Bibi wcrc rcspcctivcly at points 3,2 and 4; whcrcas thc appcllant was aL point 6. 'l'hc dcccascd I'accd all thc thrcc from north loward south; in lront of him. 'l'hc complainant and Arsalan wcrc towards his right sidc in thc cast. 'l'hc I.0 collectcd blood from thc placc of thc dcccascd only, two cmptics of .30 borc pistol from thc placc of thc appcllant: point 'A' ncar point 6, his placc ol prcscncc, which hc scalcd in two parccls. 'l'hc dcccascd, at point 2, happcncd to bc his dircct targct, which obviously rcsultcd in his dcath. 'l'hc appcllant was at a distancc ol 5 lcct, 9 inchcs lrom thc dcccascd; 6 lcct 4 inchcs and 5 l'cct, I l, inchcs liom thc injurcd Gul Qasim Jana and Ms. Mala llibi, rcspcctivcly. 'l'hc complainanl was not cross cxamincd liom thc pcrspcctivc ol'thc sitc plan. 'l'hc I.0 was somchow cross cxamincd. IIc admittcd having rccovcrcd no blood liom the placcs ol'thc injurcd womcn. IIc dcnied a suggcstion that point 'A' has bccn writtcn in diflcrcnt ink.

I{athcr, hc oll'crcd an cxplanation that hc has givcn dctails of point 'A' at thc back of thc sitc plan. Ms. Amrccna Ilibi was shown in thc sitc plan. It lollows that shc was not prcscnL at Lhc placc olthc incidcnt. It has bccn hcld umptccn timcs that whcn ocular account is natural, truthful, convincing, rcliablc, and confidcncc inspiring, thcn it alonc is sufficicnt to sustain conviclion. I(clcrcncc can bc madc to Muhammad lrfan v.

State 0018 PCT.LJ l3l9), Muhammad Akhtar v. State (2009 YLR 1092), Stote v. Muhammad Ssrwar (2007 YLR 74), Iiaz Ahmad v. State Q007 PCT.LJ 124 9) and Shabbir Ahmud alias shabbira v. The state (2003 PCT.LJ 1023).

B. Medicul evidence

9.Coming to thc mcdical cvidcncc, wc notcd abovc that thc dcccascd was dircctly in thc linc ol the firc by thc appcllant l'hc cornplainant stalcd that aftcr having bccn hil with thc shols fircd by thc appcllant, [Jrncr l)araz brcathcd his last on thc spot.

Ms. Gul Qasim Janan supportcd his stancc. I)r. Inamullah, thc Mcdical Olficcr (PW6) in his post-mortcm (l'M) cxamination rcporl notcd that thc timc bctwccn injury and dcath was 03 1o 05 minutc. ilcncc, thc mcdical cvidcncc fully provcd that thc dcccascd dicd on thc placc ol' thc incidcnt. 'l'hc PM rcport dcmonstratcs that two fircarm cntry wounds with two cxil wounds wcrc lbund on thc dcad body ol' thc dcccascd. 'l'hc rcspcctive sizcs of cntry and cxit wounds wcrc thc samc: lnXln

and l/3 X [/3, rcspcctivcly. Whilc undcr cross cxamination, thc Mcdical Olficcr admittcd his inability, bcing not a forcnsic cxpcrt, to statc within how much distancc thc dcccascd was hit.

'l'hc rcspcctivc sizcs ol- thc cntry and cxit wounds, rcfcrrcd to abovc, wcrc got rcstatcd liom him undcr cross cxamination.

10.'l'hc injurcd Ms. Gul Qasim Jana and Ms. Mala Ilibi wcrc mcdically cxamincd by l,ady I)octor Ilozina Aman whosc statcmcnt was rccordcd twicc: as PW1 and PW 14. 'l'he formcr was injurcd on hcr abdomcn. In hcr lattcr statcmcnl, I)r. Itozina Aman statcd that thc original mcdico lcgal rcport o[ Ms. Gul Qasim Jana was misplaccd. Shc produccd carbon copies of thc rcport and dischargc slip. Shc statcd that thc particulars of thc injurcd Ms. (iul Qasim Jana wcrc visiblc and rcadablc in thc carbon copy ol'thc rcport, but thc sct of thc injurics wcrc lound blank in thc carbon copy. I lowcvcr, hcr statcmcnt candidly provcs that Ms. Gul Qasim Jana was injurcd and admittcd in thc hospita I and that hcr d ischargc slip shows hcr cndorscmcnt. It lbllows that both thc womcn wcrc injurcd, lrcatcd in thc hospital and dischargcd. I lowcvcr, thc cxact scats of injurics of Ms. Gul Qasim Jana couldn't bc vcrificd from thc carbon copy ol' hcr mcdico lcgal rcport.

t l. In thc mcdical cvidcncc, an important clcmcnt croppcd up liorn thc rncdico lcgal rcporl ol' thc appcllant. Dr. Shah llaraz (CWl), a Mcdical Olllccr in thc Womcn & Children

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llospital, notcd 07.30 prn as thc timc o[ cxamination of thc appcllant on 2310612016. Lcarncd counscl lor thc appcllant crnphasizcd lhat 07.30 prn, as thc tirnc ol' cxamination of thc appcllant is matcrially doubtlul. Ilc that as it may, thc Irllt hc lodgcd against thc cornplainant shows 2l:30 hours as thc timc ol-thc incidcnt. 'l'hc injury shcct availablc on thc rccord of thc cross casc docsn't show thc timc of cxamination of thc injurics on thc appcllant. Ilowcvcr, thc samc was surcly prcparcd at thc timc ol' rccording ol'thc lf lR, which is 2l :30 hours, and ncvcr 07.30 arn. 'l'hc samc is, thus, surcly a clcrical mistakc. 'l'hc mcdical cvidcncc is in consonancc with thc ocular account as rcgards thc naturc, localc, tirnc and impact of thc injurics on thc pcrson of thc dcccascd. 'l'hus, thc mcdical cvidcncc lcnds complctc support to thc ocular account. In similar circumstanccs, thc Suprcmc Court in Multammad Abbas and onolher v. The Stote Q023 SCMR 487), has considcrcd thc mcdical cvidcncc in lavour olthc prosccution.

C. Recovaries

12.Wc would now advcrt to thc rccovcrics. I)uring thc spot inspcction, thc I.0 rccovcrcd blood staincd carth lrom thc placc of thc dcccascd and two cmptics of .30 borc pistol from thc placc ol thc appcllant. Onc Constablc Sadullah # 1792 (l'W4) collcotcd blood staincd Qarnccz ol' thc dcccascd lrom thc Mcdical Ofliccr which hc handcd ovcr to thc I.O. SII0 Abdul

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Majid Khan (l'Wl3) arrcstcd thc appcllant on 23.06.2016, thc day of thc incidcnt and rccovcrcd from his possession thc .30 borc pisl.ol bcaring # 777, which bcing unliccnscd, a scparatc criminal casc lf lll # 106 was rcgistcrcd against him on 25.06.2016 undcr scction l5-An. Constablc Naqibullah # 105 is onc ol'thc rnarginal witncsscs of thc mcmo vidc which thc pistol was rccovcrcd. 'l'hc lrSl, rcports of' thc alorcmcntioncd rccovercd articlcs, most notably of thc pistol and thc two crnptics, wcrc rcturncd as positivc. 'l'hc rcpo( clcarly statcs that 1wo crimc crnptics wcrc {lrcd lrom thc .30 borc pistol # 777,,Lhc blood staincd carth and Qamccz. As thc appcllant was undcr trcatmcnt in thc hospital, SIIO Abdul Majid affcstcd him who madc a cross rcport in thc Policc Slation. 'l'hc positivc IrSL rcport lcnds lull support to thc prosccution casc. Whcn ocular account is rcliablc and duly supportcd by mcdical cvidcncc as is thc casc bclirrc us, thcn thc positivc lfSL rcpo( can salcly bc considcrcd in lhvour ol' thc prosccution. Itcfcrcncc may, lor cxamplc, bc madc Lo lmran Mehmood v. The Slale (2023 SCMR 795), Asim Shuhz.od v. The stute (2014 MLD 893) und Ghulam Hussain v. The Stole (2 013 PCT.LJ 789).

D. Confession

13.'l'hc appcllant rccordcd judicial conlcssion bcforc Judicial Magistratc Mr. Amir Ali Airidi (PW4). 'l'hcrc arc two matcrial aspccts ol' thc con l'cssion. l;irstly, I)W4 rccordcd thc

statcmcnt o['thc appcllant through thc Compulcr Opcrator of his court what hc callcd undcr his supcrvision, and not undcr his own handwriting. In thc ccrtificatc hc appcndcd to thc confcssional statcmcnt. hc rncntioncd that thc statcmcnt was rccordcd undor his supcrvision. In his dcposition, hc mcntioncd thc dcsignation of thc olficial who wrote it, but hc didn'l mcntion thc namc ol thc olficial. I Ic didn't cndorsc this fact himscll. Sccondly, allcr rccording thc statcmcnt, hc handcd ovcr thc appcllant to thc policc olficials; not to thc Naib Coun olhis court whilc scnding on judicial rcmand to jail. Iivcn if wc don't bclicvc, as thc trial Court did, thc conlcssion as a piecc of cvidcncc, thc qucstion is can wc ignorc thc cross casc hc rcgistercd againsl thc cornplainant. livcn othcrwisc, as hcld lmran Mehmootl v. The State Q023 SCMR 795) if thc confcssional statcmcnt of thc appcllant is cxcludcd from considcration, thcrc is sulllcicnt matcrial availablc on thc rccord in thc shapc ol'ocular account duly suppo(cd by mcdical and circurnstantial cvidcncc to sustain conviction. Wc ncxt proposc to discuss thc cross casc (l;lR # 399).

E. The cross cose

14.'l'hc mcdical rcport of thc appcllant in thc cross casc shows onc lirc arm cntry wound on his lcft lcg at middlc on thc rncdial sidc ol't/n X t/a sir.a, with an cxit on thc latcral sidc, and ol'l/3 X ll3 sizc. Charring marks wcrc lound on thc cntry

wound. During invcstigation, Shcr Wali Khan was lound innoccnt and appcllant was lound to havc causcd a sclf inflictcd injury on his lcft lcg. On thc dircction ol thc trial Court, frcsh challan against thc appcllant undcr scction 337-ll, I)PC, was submittcd. I lowcvcr, at thc timc ol'final judgmcnl, it found that mens rea bcing missing in thc casc, it acquittcd the appcllant undcr scction 249-A, Cr.ltC. Irrcspcctivc of thc factum of acquittal, it is lully cstablishcd that thc appcllant rcgistcrcd thc cross casc in which his injury was found as self inflictcd and thc cornplainant Shcr Wali Khan was lound innoccnt. In his statcmcnt undcr scction 342, Cr.ltC, thc appcllant was confrontcd with thc cross casc. Astonishingly, hc dcnicd having rcgistcrcd that casc. I Ic lumishcd contradictory rcplics: tcrming thc allcgation in thc murasila as incorrcct and bascd on mala fidc, on thc onc sidc, and stating that hc was injurcd as a rcsult W ol' firing madc by thc complainant, on thc othcr. I Ic cvcn lcrmcd incorrcct thc rnotivc bcing disputc ovcr womcnfolk. It lbllows that thc appcllant, to thc cxtcnt ol thc cross casc, didn't ol'fcr honcst rcplies. I lcncc, thc appcllant himsclf cstablishcd his prcscncc on thc placc ol'thc incidcnt by rcgistcring thc cross casc.

CONCLUSION AND THE, VERDICT:

15.'l'hc conclusion ol' thc ab<lvc rcappraisal of thc prosccution cvidcncc is that thc incidcnt took placc insidc thc

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housc of thc complainant parly; thc prcscncc of thc complainant, thc dcccascd and both thc injurcd and o[ thc appellant is lully cstablishcd.'l'hc cross casc furthcr strcngthcns thc prcscncc ol all ot'l.hcrn. 'l'hc cornplainant and thc injurcd Gul Qasim Jana lurnishcd ocular account ol' thc incidcnt which is dircct, firm, catcgorical and confidcncc inspiring. 'l'hcy wcrc nol. substantially shattcrcd during cross cxamination. 'l'hc non- cxamination of thc injurcd Ms. Mala llibi is not damaging to thc prosccution casc. 'l'hc rcason is that shc was a strangcr; an alghan woman who pcrhaps avoidcd kl involvc hcrsclf in thc family disputc bctwccn thc partics. Morcovcr, prosccution has produccd all thc matcrial witncsscs in ordcr to bring homc thc guift ol'thc appcllant. In thc casc of Haq Nawaz v. The State OOO SCMR 785 thc prosccution had cxamincd thc complainant, bcsidcs two othcr cyc witncsscs, mcntioncd in thc lf ll{. I lowcvcr, it did not producc an injurcd witncss. 'l'he dcf'cncc agitatcd this aspcct bclbrc thc Suprcnrc CourL. Whilc considcring thc plca, thc Suprcmc Court hcld that non- production o[thc injurcd witncss or othcr cyc wilncsscs namcd in thc IrlR was ol- no conscqucncc, as thc prosccution was not bound to cxaminc all thc witncsscs citcd in thc casc. In thc pcculiar lacts and circumstanccs of thc casc, thc prcscnce of Ms. Arnrccna also has no ncgativc ir-npact on thc prosccution

casc. 'l'hc rcason is that thc occurrcncc ol thc incidcnt has bccn duly and matcrially provcd.

16.Iror thc albrcsaid rcasons, wc arc llrm in our vicw that thc lcamcd trial cou( has cvaluatcd thc cvidcncc on filc in its truc pcrspcctivc and has comc to a corrcct conclusion, which is uncxccptionablc. 'l'hc conclusions drawn and rcasons givcn arc cogcnt and convincing which find complctc support from rccord of thc casc. 'l'hcsc arc ncithcr arbitrary nor pcrvcrsc or lanciful. Lcarncd counscl lbr thc appcllant could not point out any matcrial to intcrl'crc with thc impugncd judgmcnt.

Conscqucntly, this appcal bcing dcvoid of any mcrit, is hcrcby disrnisscd

Announced t4.06.2023 ((ihafoor Zaman) ?=--\

.IUD(;E

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{D.B)

Hon'ble Mr. Justice Faral Subhan Hon'ble M.. Justice Dr. xhurshid lqbal