MOHAMMAD IBRAHIM KHAN, J-. In order to cast aspersions upon the judgment in case # SC/05 of 2012 decided on 13.05.2013 of the learned Additional Sessions Judge-V , Nowshera, this is a Jail Criminal Appeal preferred by Khawas Khan who is convicted and sentenced u/s 302 (b) PPC to imprisonment for life. In addition to, fine of Rs.2,00,000/- (two lacs) as compensation under section 544 (a) Cr.PC or in default to further undergo six months SI was imposed. Benefit of Section 382-B Cr .PC was however extended.
2. Touching the occurrence, on 21.01.20 10 at 15:00 hours in "Deh Banda Sheikh Ismail" near Spin Jumat in furtherance of common intention with the co-accused Fazal Maula and Mian Khan, the said Khawas Khan as such has committed Qatl-e-Amd of Umer Zada by firing at him. He has also assaulte d over the complainant Gulfam Zada by giving butt blows as a result whereof sustained injuries over his head. Having committed an offence falling under section 302/34 r/w 337-A (ii) PPC, was formally indicted on 23.01.2012.
3. Be good enough to touch upon case # SC/34 of 2010 decided on 25.07.2011 whereby learned Additional Sessions Judge-V, Nowshera has acquitted the co-accused Fazal Maula and Mian Khan under the similar charges. At that proceeding this accused/appellant Khawas Khan was absconding and has since been declared proclaimed offender.
4. The telltale inside information of the prosecution evidence spell the beans of lodging the complaint by PW-9 Gulfam Zada, narrating his relation with accused/appellant Khawas Khan to be his brother in law (sister 's husband). At the time of commission of the occurrence, accused/appellant was accompanied by Fazal Maula and Mian Khan who all came at the place of occurrence near Spin Jumat where complainant and his brother Umer Zada were also present. The accused party possessing firing arms, out of whom accused/appellant Khawas Khan started firing upon the deceased Umer Zada who got hit and died on the spot. Motive for the occurrence has been advanced dispute over the female folk. This occurrence is also witnessed by father of the complainant by the name of Khan Zada. It was reported to Karim Dad Khan ASI who drafted the murasila in the Civil Hospital Pabbi. It was handed over to PW-6 Nizar Ali No.973 who brought it to Police Station for the registration of the case. The investigation was entrusted to PW-10 Karim Shah Khan SI who recorded the statement of PWs, prepared the site plan EX.PW10/1, recovered the blood stained earth from the place of deceased Umer Zada. He has taken into possession blood stained garments, initiated proceedings against the accused u/s 204 Cr.PC through application EXPW10/4. He also conducted proclamation proceedings EXPW10/5 and submitted complete challan u/s 512 Cr.PC before the SHO Police Station concern, in addition to conducted all rest of the investigation. The examination of injured Gulfam Zada and deceased Umer Zada autopsy were conducted by PW-4 Dr. Muhammad Shafiq and found the following: On the person of injured complainant Gulfam Zada He was conscious and oriented in time and space. i. A lacerated wound 1/3 cm in size of an occipital region of head. ii. Multiple bruises on front of bilateral knee joints.
On the dead corpus of deceased Umer Zada i. Firearm entry wound of x cm in size on left side of neck with an exit wound of 1x1 cm in size on right side of neck. ii. Firearm entry wound of x cm in size on left side of neck with an exit wound of 1x1 cm in size on right side of neck. iii. Firearm entry wound of x cm in size on front of left lumber region with an exit wound of 1x1 cm in size on back of left lumber region.
The witnesses to the recovery memo PW-5 Junaid and PW-11 Gulab Zada are pertaining to different articles exhibited in their statements. PW-13 Kamran No.1266 DFC was entrusted with the warrants of arrest u/s 204 Cr.PC EXPW13/1 to EXPW13/3. The accused/appellant Khawas Khan after learning that the co-accused were acquitted by the Court, he tried his luck and himself came to the Police Station on 20.11.2011 whereas his card of arrest issued on the same date and time. PW-1 Jehanzeb Khan is said to have submitted complete challan u/s 512 Cr.PC and later on supplementary challan was submitted by PW-2 Hazrat Ali Khan SI.
5. Having heard learned pauper counsel for the accused/appellant, counsel for the complainant and learned AAG for the State, with their lucrative assistance gone through the record.
6. The learned defence counsel at the very inception of opening the arguments came down on the intrinsic evidentiary value of the solitary statement of ocular account PW-9 Gulfam Zada. Once disbelieved giving no credence to his statement by the Court in a Sessions trial case # SC/34 of 2010 wherein specifically he stood as his own witness for charges of assault over him inflicted in person receiving butt blows of the weapons got hit over the skull and injured. Then how this witness as PW-9 has been credulous and taken at one's word in this trial for an offence inviting capital punishment for charge. True that in an occurrence which was held earlier in a sessions case trial with similar charge framed against the co-acquitted accused Fazal Maula and Mian Khan, the very first head did not concern with those co-acquitted accused. In the sessions trial of this very accused/appellant Khawas Khan verbatim charge with the same dittoed heads, the second head is in apropos to him. The statement in earlier trial if put in juxtaposition with this statement there is added improved account of happing to the role of accused/appellant Khawas Khan. In such scenario there are guidelines in reported judgments like 1973 SCMR 215 (Abdul Samad Vs The State) Penal Code (XLV of 1860)
S. 302-Witness-Maxim: falsus in uno falsus in omnibus-Principle not accepted by Supreme Court-Evidence not accepted in same respects need not necessarily be rejected in other respects.
1969 SCMR 132 (Muhammad Nawaz and others Vs The State) Penal Code (XL V of 1860) ---S. 302-Number of accused-One acquitted on basis of alibi evidence and another because his participation was found doubtful on account of advanced age-Contention that prosecution evidence not worthy of credit on principle that witness found false in part shall be disbelieved in whole-Held not applicable in such a case.
1999 SCMR 803 (Ahmad Khan Vs Nazir Ahmad) Penal Code (XL V of 1860) ----S. 302---Appreciation of evidence---Maxim "falsus in ono falsus in omnibus' is not applicable for discarding the evidence of the witnesses as a whole and hence, so much of the evidence which is credible can be accepted.
So there is no hard and fast rule to disbelieve this witness of ocular account whose statement against the accused/appellant Khawas Khan, judged from every angle coming to be unfeigned and on the nose matter of fact.
7. Next off the veracity of injured witness PW-9 Gulfam Zada. He has sustained a lacerated wound 1/3 cm in size on occipital region of head, multiple bruises on front of bilateral knee joints. PW-4 Dr. Mohammad Shafiq has confirmed to have been caused with butt blows with opinion blunt simple. Verily the Medical Officer has been subjected to cross-examination with particularity to the injuries sustained by the injured complainant/witness but no spawning contradiction has come into view that the injuries are self trickery. Had the slip-shod finding in the judgment SC-34 of 2010 been impugned before the appellate forum then the veracity of PW-5 Gulfam Zada in the said trial would have been diversely considered in usual course. Here the probity of this injured witness PW-9 Gulfam Zada is tested on its own merits to be of much intendment.
Reliance is placed on 2016 YLR 2148 (Attaullah Vs The State). The presence of PW-9 Gulfam Zada is not shattered at the right time of occurrence with no ifs, ands, or buts. The Medical Officer PW-4 Dr. Mohammad Shafiq examining him for his injuries at 4:00 PM and PW-12 Karim Dad Khan ASI who has daresay such like view is supported by titled appeal of Safdar Hayat Vs The State reported in 1996 SCMR 1029.
8. On the whole, accused/appellant Khaw as Khan is alone coming out to be a single accused charged for the commission of Qatl-e-Amd of Umer Zada by firing at him. It is concordant with facts that the ocular account witness shall be of unimpeachable character, trustworthy and confidence inspiring whenever murder charge is to be established against a single accused. There shall be no substitution so as to put cord around the neck of accused charged rightly. This phenomena is watched by all divergence to meet both the ends of justice. The parties are very closely related. Accused/appellant Khawas Khan is the brother in law (sister's husband) of the complainant injured witness PW-9 Gulfam Zada and this fact has not been denied in an answer to question # 9 recorded u/s 342 Cr.PC of accused/appellant Khawas Khan. So the substitution is beyond falsification to become white lie. (Context to 2016 YLR 1166 Sher Azam Khan Vs The State PLD 2001 Supreme Court 222).
9. Precisely learned pauper counsel has once more drawn his sight to the evidence recorded in the previous trial disbelieved by the Court of learned Additional Sessions Judge-V, Nowshera in comparability to the prosecution witnesses statements in the foregoing trial held against accused/appellant Khawas Khan. There may be some minor discrepancies in the statements on re-appraisal of the evidence where prosecution has established its case under consistent and trustworthy evidence step by step. The mens rea of the accused/appellant to have joined the trial with the hope of acquittal consequent to the earlier trial of co-accused brothers ended in acquittal. Safe administration of criminal justice would always perservering to skip from ignoring less meaningful contradictions. Refer to 2016 P Cr. L J 200 (Zuyfiqar Vs The State).
10. When looked into every mien of the prosecution evidence and appreciating the ultimate outcome of the findings in the impugned judgment, we are of the consistent judicial reassessment to uphold the conviction and sentence of the accused/appellant to appropriately determined punishment, maintained accordingly . This appeal stands dismissed.
Copy of this judgment be sent to the Superintendent Central Prison Haripur for information and necessary action leaving accused/appellant Khawas Khan to serve the sentence accordingly .