WIQAR AHMAD, J. Appellant is aggrieved of judgment dated 26.02.2021 delivered by learned Additional Sessions Judge/Judge MCTC Abbottabad in case FIR No. 83 dated 11.02.2017 registered under Sections 302/324/1481149, P.P.C. at Police Station Havelian District Abbottabad, whereby he has been convicted under Section 302 (c) P.P.C. and sentenced to ten (10) years R.I with a fine of Rs.2.00,000/- payable as compensation to legal heirs of deceased (Zamarud Khan) under Section 544-A Cr.P.C (or in default to suffer further six (06) months S.I) with benefit of Section 382-B Cr.P.C. appellant (Falak Naz Khan).
Since appellant along with his co-accused namely (1) Sher Afzal Khan, (2) Arshad Mehmood, (3)
Sajjad Khan and (4) Sohail Arshad have been acquitted under Section 324, P.P.C., therefore, complainant (Faisal Khan) has filed not only Cr.Appeal No. 92-A/2021 against their acquittal but also Cr.Revision No. 11-A/2021 for enhancement of sentence of appellant, hence, we propose to decide all these matters together through this single judgment.
2. According to contents of Murasila (Ex.PA). it was on 11.02.2017 at 17:45 hours when complainant of the case namely Niqash Khan (PW-09) while accompanying his injured father (Zamarud Khan) lodged report of the crime to Abdur Rasheed, SI (PW-06) at Emergency Ward of TDH Havelian by stating that there was a dispute on pathway between his paternal uncle (Sher Afzal Khan) and cousin (Riasat Khan) and to settle same a Jirga had also been convened on the day of occurrence wherein his injured father was also present. As per crime report, appellant and his acquitted co- accused (four in number) were preventing Riasat Khan from installation of gas pipeline while his injured father was trying to convince them to allow Riasat Khan to install same as it was his right.
The issue resulted into exchange of harsh words which was followed by pelting of stones upon his father. Appellant and his co-accused (Sohail) were then alleged to have given brick blows on the head of his father as a result of which his father had sustained severe injuries and fell down on the ground. Other elders of area present at the spot including Asif Khan, Riasat Khan and Ajmal Khan had statedly rescued him. Co-accused Sohail was also alleged to have raised Lalkara, whereupon appellant (Falak Naz) had made firing upon them, but said firing had not resulted in any casualties.
Murasila (Ex.PA) was accordingly drafted and sent to Police Station, contents of which were incorporated into FIR (Ex.PA/1) by Muhammad Naveed MHC (PW-02).
3. After completion of investigation, challan was submitted before learned trial court. Formal charge was framed against appellant and his acquitted co-accused, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution produced twelve (12) witnesses, whereafter accused were examined under Section 342 Cr.P.C. wherein they denied the allegations and professed innocence, however, they neither opted to be examined on oath nor produced evidence in their defence. At the conclusion of trial learned trial Judge convicted and sentenced the appellant as mentioned above and acquitted co-accused (four in number) vide impugned judgment. Being aggrieved from ibid judgment, appellant has filed the instant appeal while complainant has filed the referred appeal against acquittal and revision for enhancement of sentence of appellant.
4. We have heard arguments of learned counsel for parties as well as learned Additional Advocate General and gone through record.
5. Perusal of record reveals that prosecution in the case in hand has been relying on eye-witnesses accounts of the occurrence offered by Chan Zeb Khan, SI (PW-8), complainant Niqash Khan (PW- 9) and Riasat Khan (PW-10). Amongst the prosecution witnesses, testimony of Chan Zeb SI was absolutely reliable, being an independent witness. He has been shown at point No.13 in the site plan. He was no doubt a police officer but it is important to be noted that it was not a police case where his performance was going to be appreciated due to registration of FIR. No other mala fide could be found existing on his part also. In his examination-in-chief he has stated that he had received information about dispute at Mohallah Gujrat from Moharrir of Police Station, hence, he reached at the spot. Deceased then alive (Zamarud Khan) had statedly met with him, who had taken him to the place of dispute. He further stated to have tried to take away Sher Afzal Khan from the place of dispute but in the meantime appellant (Falak Naz) had started pelting bricks upon deceased then alive from roof top of the house of Sher Afzal Khan and out of the thrown bricks deceased had received injury on his head, with which he got injured and fell on the ground. This witness has further stated to have asked his companion constable for more police force from Police Station. He further stated that after stabbing brick blow, appellant (Falak Naz) had succeeded in fleeing away from the scene toward back side of the roof by jumping from the roof, however, he had noticed foot marks of accused and captured photographs of same, besides the children present over there had also told him about sustaining injury by appellant while jumping from roof top and his being shifted to hospital. This witness stated to have reached RHC Havelian but appellant had reached DHQ Abbottabad in injured condition for treatment and on noticing him in injured condition there, he had deputed constable Safeer in order to ensure impending arrest of appellant Falak Naz. He stated to have gone to Police Station Havelian and had brought the matter into notice of DSP and returned to DHQ Hospital Abbottabad along with Younas Khan SI/I.O of the case where appellant was found lying on bed in surgical ward. This witness was subjected to lengthy cross-examination but nothing could be brought from his mouth which could have corroded the value of his testimony. He was confronted with his written statement, earlier taken on file as his statement recorded under Section 161 Cr.P.C. This court has also the occasion to go through said statement. In said statement also he had attributed the role of causing stone blows to appellant Falak Naz Khan. He had not completely towed the line of complainant where the complainant had also involved acquitted co-accused Sohail in causing stone blows to deceased Zamarud Khan. His statement was also supported by report of postmortem examination of deceased wherein the doctor had found the following injuries on him: "Wounds bruises position size nature. Abrasion size 5 x 3 cm on anterior top of skull with underlying depressed bone (parietal bone). Fracture in temporal bone. Fracture Zygomatic bone. Fracture sphenoid bone. Bilateral pends sign. Blood in brain (subarachnoid). Bleeding and subdural haematoma.
The doctor was also examined in support thereof as PW-5 (Dr. Asad Ali Shah) and he had remained consistent in his assertions. Testimony of Chan Zeb SI was also supported by report of medico-legal examination of appellant Falak Naz Khan, who had been examined by Dr. Naveed Ahmad (PW-3).
6. Statement of Chan Zeb SI (PW-8) was also getting support from the statement of other PWs i.e. PW-9 and PW-10. Both these eye-witnesses have also stated that the main blow to deceased had been caused by appellant Falak Naz Khan. Part of their statements regarding blow of Sher Afzal co- accused as well as their testimony regarding causing blows by other accused namely Sher Afzal and abetment by Sohail have rightly been discarded by learned trial court for the reason that to said extent there had not been sufficient corroboration of their eye-witness account from the medico-legal evidence. In the facts and circumstances of these cases Chan Zeb (PW-8) was an absolutely reliable witness Hon'ble Supreme Court of Pakistan while delivering its verdict in the case of "Muhammad Iqbal and others v. Muhammad Akram and another" reported as 1996 SCMR 908 has held that witnesses may be classified into three categories i.e. absolutely reliable witnesses, absolutely unreliable witnesses and partly reliable witnesses. It has further been held in said judgment that conviction may safely be based on testimony of absolutely reliable witnesses even in absence of any corroboratory material with the prosecution. The learned trial court has rightly relied on his testimony. This court is also placing main reliance on his testimony while reappraising evidence in all these connected matters.
7. It is also important to note here that Falak Naz Khan has also lodged a cross report vide FIR No.236 dated 21.04.2017 registered under Sections 337-F(v)/506/34 P.P.C. stating therein that there was a dispute over pathway with Mehmood and Ajmal, who tried to establish possession on said pathway. lqbal Khan, Zamarud Khan, Riasat Khan. Mehmood Khan, Niqash and Ajmal Khan allegedly came together and asked him that they would dig out the pathway. He tried to forbade them from doing so, upon which they allegedly started quarreling and attacked on their house. As per report, Zamarud Khan and lqbal Khan had allegedly started firing on the complainant, however, he had escaped said fire. Thereafter, Riasat Khan, lqbal Khan. Ajmal Khan and Mehmood Khan allegedly caught hold of him (Falak Naz Khan) and Zamarud Khan (deceased then alive) asked his son Niqash to kill him, upon which the latter gave him blow with iron rod on his right leg, as a result of which he had allegedly sustained injury, fell down and became unconscious. The occurrence was stated to have also been witnessed by Sajjad Khan, Lal Akbar and Sher Afzal Khan. Said report had been recorded vide Daily Diary No. 46 dated 11.02.2017 brought in evidence as Ex.PW-8/1. The Investigating Officer of the case had, however, referred his case for cancellation in respect whereof he had stated in closing line of his examination in chief while deposing as PW-11 in the following words: "I submitted cancellation report in the said case photocopy whereof is Ex.PW-11/34 while original is on case file of FIR No. 236 dated 21.04.2017 under Sections 337-F(v)/506/34 P.P.C. registered at Police Station Havelian."
8. Learned counsel for appellant Falak Naz Khan was heard at length but he failed to make out a case of acquittal for him therefore, his appeal against conviction and sentence is, therefore, dismissed.
9. So far as Criminal Appeal bearing No 92-A/2021 against acquittal of accused-respondents under Section 324 P.P.C. is concerned, it is important to li mention here that no doubt complainant had charged them for firing upon him but neither specific role of firing could have been attributed to each accused nor anything in the shape of crime weapon or empty shells could have been taken into possession by Investigating Officer in order to substantiate charge against them, therefore, they have rightly been acquitted by the learned trial court, to which no exception could be taken by this court.
10. In Criminal Revision bearing No. 11-A/2021, main question before the court is checking propriety of the sentence awarded to appellant/accused-respondent under Section 302(c) P.P.C. Learned counsel for complainant submitted in their arguments that after prosecution had proved case against appellant (Falak Naz Khan) beyond doubt then his case was squarely falling in the definition of Qatl-e-Amd liable to punishment under Section 302 (b) P.P.C. We are afraid, we would not be able to agree with learned counsel for the complainant in this respect. The learned trial court while making the conviction and awarding sentence under Section 302(c), P.P.C. has recorded the following reasons; As far as the mitigating circumstance in the instant case is concerned, as two persons have been charged for brick blows to the deceased, but in the statements of PW-10 and PW-18 it is categorically asserted that due to the brick blow of Falak Naz accused facing trial, Zamarud Khan deceased got hit on his head and moreover, the occurrence was not premeditated rather developed on the spur of moment resulting into sudden provocation as well as there is no repetition and the crime weapon is a stone brick which in ordinary course lying elsewhere, considering the same aspect as mitigating one, the accused Falak Naz is held guilty for the commission of murder of deceased Zamarud Khan, therefore, he is hereby convicted under Section 302 (c) P.P.C. as Taazir instead of Section 302 (6) P.P.C. and sentence to suffer ten years R.I."
11. From the evidence of prosecution, it can easily be gathered that a dispute had arisen all of a sudden in which the deceased had also been taking an active part. It has also been suggested to complainant (PW-09) and he had answered in affirmative that before the occurrence a Jirga had taken place wherein Sher Afzal Khan (accused-party) had objected to middling of Iqbal Khan and deceased (Zamarud Khan) in the matter. The accused-party had also demanded that deceased (then alive) should riot come again in Jirga. When the dispute had arisen on the spot, the deceased then alive had activel participated therein. Prosecution has also been relying upon recovery memo Ex. PW10/1 where the Investigating Officer had taken two big bricks on recovery memo. One of the brick, amongst the two, Was claimed to have been used by appellant Falak Naz Khan but it was not clear which brick had he used because the other brick had been attributed to acquitted co-accused namely, Sohail. In the given circumstances when death had been caused as a result of single blow in an occurrence which had developed all of a sudden, in which the deceased had also been an active part we do not feel inclined to enhance the sentence, hence, instant criminal revision is also dismissed.
12. Accumulative effect of our finding would be that this and the connected appeal against acquittal (Cr.Appeal No. 92-A/021) as well as criminal revision (Cr.Revision No. 11-A/2021) for enhancement of sentence are hereby dismissed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.