' NASIR-UL-MULK, J.--- This judgment shall dispose of Criminal Appeal No,30 of 1994 filed by the convict appellant Alam Khan son of Bowta Khan and Murder Reference No,4 of 1994 sent up by the Sessions Judge, Bannu as well as Criminal Revision No,13 of 1994 preferred by Hayat Noor Khan for awarding of compensation under section 544-A, Cr.P.C.
2. Sessions Judge, Bannu, by his judgment and order, dated 18-9-1994 convicted the appellant under section 302/34, P.P.C. And sentenced him to death. The appellant was also convicted under section 324/34, P.P.C. (on two counts) and sentenced to suffer 5 years' R.I. He was further convicted under section 319, P.P.C. And sentenced to 4 years' R.I. And under section 337-H, P.P.C. And sentenced to two years' R.I. As Tazir on three counts. Perpetual warrants of arrest were issued by the learned Sessions Judge against the three co-accused of the appellant, namely, Mirza Khan, Munawar Khan and Gul Shamad Khan, who had already been declared absconders in the case.
3. Facts of the prosecution case briefly stated are that on 12-1-1990 at about 1-30 p.m., Hayat Noor, his two cousins Wakil Khan and Sarwali and uncle Gul Shah Ali Khan were leaving a mosque in Pipal Bazar, Bannu after offering Jumma prayers, with Gul Shamali in the lead followed immediately by Wakil Khan and then by Hayat Noor and Sarwali. Alam Khan armed with a klashnikov, Mirza Khan armed with a shot gun, Munawar Khan carrying a klashnikov and Gul Shamad armed with a rifle .303 bore were waiting outside the mosque, who, on seeing Hayat Noor and others, started indiscriminate firing at them, killing Gul Shamali Khan instantaneously and injuring Sarwali Khan and Barkatullah. The firing also hit unconcerned people in the Bazar namely, Kamil Ghulam, Gul Khan, Maroof Khan and Asmatullah. Kamil Ghulam later succumbed to his injuries. After the occurrence Alam Khan is stated to have taken refuge in a shop. The occurrence was witnessed by Hayat Noor. Wakil Khan, Sharwali Khan and a number of other members of the Banochi Tribe.
Motive for the crime was a dispute between the parties two years prior to the occurrence over a contract for cement. The incident was reported on the same day at 2 p.m. At the Police Station Bannu Cantt. And the information was incorporated in F.I.R. No,5.
4. A.S.-I. Muhammad Akbar Khan who was present at the police station at the time of crime was reported, after having the F.I.R. Recorded, left for the spot along with the police party for investigation of the case. He arrested Alam Khan appellant on the spot along with the klashnikov which was taken into possession through recovery memo. Exh.P.R. Alongwith two magazines and a bandolier containing 65 live rounds. The klashnikov was sealed in a parcel. Through the same recovery memo. Two cartridges and 5 live rounds were sealed in a separate parcel for examination. The Investigating officer inspected the spot with the help of the complainant and prepared site plan Exh.P.B. Blood-stained earth was recovered from the places where Gul Shah Ali Khan and Kamil Ghulam were murdered and Sarwali Khan, Gul Khan and Maroof Khan injured vide recovery memo. Exh.P.R./1. The blood-stained earth was sealed in separate parcel. Freshly discharged 10 empties of klashnikov and one magazine containing 10 live cartridges were recovered from inside the shop of a blacksmith Rapey Jan where some of the injured were present at the time of the occurrence. The Investigating Officer took into possession 10 empties of klashnikov from near the points where the four accused were stated to have fired from, through the same recovery memo. While present at the spot investigating the case, the Investigating Officer received from police constable the clothes of the deceased and injured sent by the doctor which were taken into possession vide recovery memo. Exh.P.R./2. All the articles were separately packed and sealed. The blood-stained articles were sent for chemical examination. The report of the Chemical Examiner Exh.P.C. Has declared that the blood stains on all the clothes were of human beings. The Arms Expert reported vide Exh.P.B. That the 7.62 bore crime empties which were marked as C-1 to C-5 and C-9 to C-10 were fired from 7.62 mm bore SMG Rifle No,66 56-119124257, the klashnikov recovered from the appellant.
5. While Muhammad Akbar Khan, A.S.-I was busy in investigating the spot, Jehandaraz Khan, A.S.-I.
(P.W.4) of the same police station was busy with the deceased and the injured at the hospital, where he had gone on receipt of information at the police station. He prepared the injury sheets of Gul Khan, Maroof Khan, Barkatullah, Gul Shamali deceased as well as inquest report of the latter. He further recorded the statements of Asmatullah, Gul Khan, Maroof Khan, Barkatullah, Haji Gul Sarwar, Rafiq Ghulam, Qamar Ali and Sher Wali. He remained at the hospital from 2-30 p.m. Right up to 8 p.m.
6. After the arrest of the appellant in the present case, he made representations from behind the bars to the S.S.P., Bannu alleging that the occurrence had not taken place in the manner as alleged in the F.I.R. And that his version of the occurrence may also be recorded and investigated into. His request was acceded to and accordingly Muhammad Akbar Khan, A.S.-I. Was sent to the judicial lock-up for recording the report of the appellant, which was reduced into writing and the Murasila was incorporated at the police station into F.I.R. No,127 on 3-5-1990, nearly four months after F.I.R.
No,5. According to the F.I.R. No,127 (Exh.P.W.12/D-1) the appellant, his brother Saleh Khan, Haji Mir and Haji Akbar had on 1-1-1990 gone to offer prayer at the mosque in kPipal Bazar. After completion of prayer, the appellant learnt that some people were waiting in a tea shop to murder him. He, therefore, informed one Malik Umar Ali Khan to speak to his adversaries to refrain from attacking him. The said Malik Umar Ali returned and told him that his adversaries had left. After a while, the appellant and his companions came out of the mosque. After having walked a few steps on the road, he saw Taj Ali, Hayat Noor, Gulsham Ali, Wakil Khan, Naqibullah and Sarwali armed with klashnikovs, .303 bore rifle and shot gun with which they fired indiscriminately at the appellant. The appellant took out his licensed pistol and jumped into a drain. The pistol dropped from his hand but he managed to take refuge in the drain. In the cross-firing, Gulsham Ali was hit and killed.
Meanwhile the respectables of the area intervened and stopped the firing where after the appellant ran into an empty shop, bolted himself and sent for the police. After the police arrived at the spot, he surrendered so as to protect himself from harm. He also surrendered the pistol to the police. In the F.I.R., the appellant charged the persons aforementioned for firing at him and his brother Saleh Khan.
7. Except F.I.R. No,127, nothing else has been brought on the file regarding the progress in the case.
However, it was stated by the learned counsel for the appellant that a trial did take place on the strength of the F.I.R. But it resulted in the acquittal of all the accused.
8. As far as the present case is concerned, complete challan was submitted against the appellant alone in the Court of Sessions Judge, Bunnu. The appellant was charged on seven counts to which he pleaded not guilty and opted to face trial.
9. The prosecution to substantiate the charges against the appellant primarily relied upon the ocular testimony, for which they examined Hayat Noor, Wakil Khan, Sarwali Khan and Barkatullah.
Further support was sought from the presence of motive for the offence, medical evidence, recovery of blood from the spot and the arrest of the appellant from the spot, the recovery of the weapon of offence and its matching with the empties recovered from the spot. The prosecution examined a total of 12 witnesses. The accused did not give a statement under section 340(2), Cr.P.C. But gave a lengthy statement under section 342, Cr.P.C.
10. Mr. Dost Muhammad Khan, Advocate, counsel for the appellant took up a legal objection to the competency of the Sessions Judge, Bannu, to try the appellant. He contended that as klashnikov was allegedly used in the commission of the offence, the case was exclusively tribal by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975), as under paragraph (a)(ii) read with paragraph (c) of the Schedule to the Act, it is only the Special Court which can try an offence under section 302 or 307, P.P.C. In which klashnikov is used.
In this context, reliance was placed on the judgment of the august Supreme Court delivered in the case of Allah Din and others v. The State 1994 SCM R 717 where it was held that when there are allegations in the F.I.R. About the use of klashnikov in a murder, the Special Court under the Suppression of Terrorist Activities Act shall have the exclusive jurisdiction to try the case. The learned counsel further relied upon two unreported judgments of this Court in Hamidullah Jan v.
The State Criminal Appeal No,9 of 1992 and Naseeb Khan v. The State Criminal Jail Appeal No,24 of 1992, decided on 7-9-1993 and 3-11-1994, respectively, at Circuit Bench. Dera Ismail Khan. In both these judgments, the Court relying upon the judgments of the Supreme Court in Allah Din's case, ibid, held that the trial and consequently the conviction of the appellants were vitiated as they were tried by the Sessions Judge and not the Special Court under Act XV of 1975. It was thus argued that on this score alone the conviction and sentence of the appellant cannot be maintained as they were passed by a Court not competent to try the case.
11. On the merits of the appeal, the learned counsel for the appellant invited our attention to the fact that disinterested injured witnesses were abandoned whereas only interested witnesses were examined by the prosecution with the object that the truth, which is destructive of the prosecution case, is not disclosed. Going through the evidence of the prosecution, the discrepancies in the prosecution case were pointed out particularly, the inconsistencies in the testimony of the two Investigating Officers A.S.-I. Jehandaraz Khan (P.W.4) and A.S.-I. Muhammad Akbar Khan (P.W.12) regarding the circumstances under which the former had gone to the hospital. It was argued that the statements of the Investigating Officers evaluated in the light of the fact that P.W. Barkatullah, one of the injured P.Ws., was examined at the police station at 6 p.m. When the occurrence had taken place at 1-30 p.m. Suggests that deliberation had taken place before the registration of the F.I.R. The learned counsel advanced the plea of self-defence which according to him can be spelt out from the recovery of 10 freshly discharged empties of klashnikov from the shop where the injured were present at the time of occurrence, and the crossF.I.R. No,127, coupled with the statement of the Investigating Officer, admitting that the appellant did not take up the plea of self- defence after he was arrested. That the plea of self-defence would be available to the appellant if discerned from the evidence, though not taken up specifically. Reliance was placed on Safdar Ali v.
The Crown PLD 1953 FC 93, Sher Khan and others v. The State 1991 SCM R 241, Said Ahmad v.
Zammured Hussain and others 1981 SCM R 795 and Khalid4Zaman v. The State 1992 PCr.LJ 2289.
12. S. Zafar Abbas Zaidi, Advocate, counsel for the complainant in the criminal appeal and for the petitioner in the criminal revision and Mr. Ejaz Muhammad Khan, Assistant Advocate-General for the State pointed out that the Sessions Judge, Bannu has been notified under section 3 of the Act XV of 1975 as a Special Court and mere failure to use the nomenclature of Special Court would not vitiate the trial. In this context, reliance was placed on Piao Gul v. The State PLD 1960 SC (Pak.) 307.
As for the merits, it was argued that the prosecution has been able to prove its case beyond reasonable doubt in that injured eye-witnesses have testified against the appellant, the appellant was arrested on the spot and the weapon of offence recovered from him matched with the empties recovered from the spot by the Investigating Officer. Further corroboration, it was argued, was provided by the recovery of blood-stained earth from the spots of the deceased and the victim and the prompt registration of the F.I.R. Regarding the plea of self-defense, it was pointed out that it was never taken by the appellant even in his statement under section 342, Cr.P.C. And that there was no evidence from which the exercise of such a right can be inferred. The learned counsel contended that the counter-F.I.R. Was an afterthought as it was registered four months after the F.I.R. In the present case as an attempt to counterblast the overwhelming prosecution evidence in the case.
13. We shall take up the preliminary legal point regarding the competency of the trial Court first. In Allah Din's case, it was the accused who had gone to the High Court and then to the Supreme Court against submission of challan by the prosecution before the Special Court on the ground that klashnikov-like weapon was not recovered nor were the empties from the spot relatable to such a weapon but the Courts, while rejecting the petitioner's plea, held that the question of jurisdiction of the Special Court could be determined on the basis of the F.I.R. And other material at the time of submission of challan. It is pertinent to note that it was the accused who at the very initial stage had objected to trial by the Special Court. In the present case, the trial had concluded, no objection to the jurisdiction was raised at any stage nor any prejudice is alleged to have been caused by the trial by the Sessions Judge. However, this Court in the two unreported judgments aforementioned had set aside the conviction and sentence though no objection to the jurisdiction of the trial Court was raised nor prejudice was shown. For the purpose of disposal of the legal objection in the present case it is however, not necessary to dilate upon the effect of the principle in Allah Din's case on concluded trials as the Sessions Judge, Bannu, admittedly has been notified under section 3 of Act XV of 1975 to exercise powers of the Special Court under section 4 of the Act.
In view of the rule laid down in Piao Gul's case, ibid, mere failure of the Sessions Judge to describe himself as a Special Court would not affect the legality of the trial as he was competent to try the case. Piao Gul's case has been based on the maxim "falsa demonstration non nocat" that is, false description does not vitiate. The trial was thus competently held.
14. The defence has taken two pleas before us, firstly failure of the prosecution to prove its case beyond reasonable doubt on account of the infirmities in its evidence and secondly, the exercise of the right of self-defence. The first plea has a bearing on the second and, therefore, the prosecution evidence requires evaluation as a whole. There are two Investigating Officers in this case, one is P.W. Jehandaraz Khan, A.S.-I. And the other is P.W. Muhammad Akbar Khan, A.S.-I. Both of them carried out investigation simultaneously, one at the hospital and the other at the spot. Their statements are not helpful in determining as to how Jehandaraz Khan, A.S.-I. Reached the hospital.
He stated that he went to the hospital after he received information about the injured in the police station. He does not know the source of that information. But he does not name the complainant as the source of information which means that he left the police station before the complainant had arrived there. P.W. Muhammad Akbar Khan, A.S.-I. In his cross-examination claims that after having received information about the occurrence he deputed P.W. Jehandaraz to the spot. However, he did not incorporate such instructions in his diary for the day. Jehandaraz, according to his own statement, remained in the hospital from 2-30 p.m. To 8 p.m. But strangely enough did not know whether an F.I.R. About the incident had been recorded nor did he care to make such an inquiry though admittedly telephone facilities were available at the hospital. During his stay for 6 hours at the hospital, he prepared the injury sheet and the inquest report of the victims and also recorded the statements of Asmatullah, Gul Khan, Maroof Khan, Barkatullah, Haji Gul Sowar, Rafiqullah, Qamar Ali and Sarwali without making any inquiry as to whether report was made at the police station. In fact if he was ignorant of the registration of the F.I.R.,- it was incumbent upon him to have despatched a Murasila to the police station about the occurrence based upon the statement of one of the injured at the hospital, because two of them, namely, Barkatullah and Sarwali were related to the deceased. P.W. Jehandaraz's story about the going to the hospital straight from the police station is belied by Muhammad Noor Khan, F.C. (P.W.2) who had accompanied Sarwali, Barkatullah and Asmatullah to the hospital for medical examination and had produced the blood- stained clothes to P.W. Muhammad Akbar Khan. He had in his cross-examination stated that he had accompanied A.S.-I. Jehandaraz and Ghulam Shabir Khan, A.S.-I. To the spot and found the injured lying there. Furthermore, the complainant P.W. Hayat Noor as well as Wakil Khan, the two uninjured eye-witnesses, who had gone to the police station to lodge the report had come out with an interesting story that on their way to the spot alongwith the Investigating Officer they saw the vehicle carrying the injured and the deceased to the hospital. They however, neither stopped the vehicle for the Investigating Officer to have a look nor did they tell the Investigating Officer that the vehicles were carrying the victims of the crime. This version is unbelievable. Seen in the light of the fact that as the occurrence had taken place at 1-30 p.m. And the case registered at 2-30 p.m. And thereafter the complainant and the Investigating Officer had left the spot, the injured undoubtedly would not have been lying on the spot without medical care for more than an hour. The eye- witnesses' this account is in conflict with the statement of P.W. Jehandaraz, A.S.-I. Who had stated that he had gone to the hospital on receiving of information that the injured/deceased have been brought to the hospital and he had reached the hospital at 2-30 p.m. By that time according to the complainant's version, the victims were still on their way to the hospital. In this background, two facts gain significance; firstly that despite the fact that they were 5 persons injured, two of whom were cousins of the complainant, yet the uninjured eye-witnesses went to lodge the report, when admittedly the police station is situated on the road between the spot and the hospital. Secondly, P.W. Barkatullah, the injured witness according to the statement of the doctor Ghaniullah (P.W.5) was examined at 6 p.m. i,e, four and a half hours after the occurrence when he had received as many as four firearm entry wounds. All this goes to show that deliberation had taken place before the registration of the case and the possibility that the F.I.R. Was recorded after P.W. Jehandaraz had completed his investigation at the hospital, cannot be ruled out as there was no earthly reason for keeping himself ignorant about the registration of the case for nearly six long hours.
15. The appellant had not taken up a clear plea of self-defence in his statement recorded under section 342, Cr.P.C. Though he had alluded to having exercised that right. In reply to the question as to why the P.Ws. Deposed against him, the appellant had stated that they are interested and have concealed the actual story and have suppressed the real facts and that the Investigating Officer had not only suppressed the bullet marks on the wall of the mosque but had refused, despite repeated requests, to register a case for attempt on his life. The appellant to another question as to what was his statement and why was he charged, replied that in fact the complainant party and the deceased were the actual aggressors and they wanted to kill him and for that they desperately fired in a crowded area resulting in injuries to several persons. The defence had also through suggestions to the eye-witnesses and to the Investigating Officers tried to lay a foundation for the plea of exercise of the right of self-defence by the appellant.
16. It is now well-established principle that the plea of right of self-defense can be accepted by the Courts if spelt out from the evidence even if no clear and specific plea has been taken by an accused.
' The most significant piece of evidence in the prosecution case which points towards cross-firing between the complainant party and the accused is the recovery of 10 empties of klashnikov, emitting, smell of being freshly discharged, from point No,14, close to point No,2-A where the injured P.W. Sarwali, according to the site plan, is stated to have gone after having been wounded at point No,2. Point No,14 is inside the shop of a blacksmith by the name of Muhammad Rapey Jan, from where charger of klashnikov with 10 live cartridges was also recovered. The said shop is situated opposite to and across the road at a distance of 26 paces from the place where the accused are alleged to have fired. According to the site plan, the complainant party were in the middle of the road at the time of firing. However, no trail of blood according to the Investigating Officer was found between point No,2 and 2-A. Nor is it the case of the eye-witnesses either in the F.I.R. Or in the statement before the Court that P.W. Sarwali had gone from point No,2 to point No,2-A after receiving the injuries. Bullet marks were also found on the door of the shop of Muhammad Rapey Jan, which would not fall within the firing direction of the accused if they were to fire at the accused as shown in the site plan. This recovery is confirmed by P.W. Sardar Ali Khan, A.S.-I. The witness who in fact had gone on to state that the empty shell pertaining to the factum of the firing of the accused were recovered from the shop of Muhammad Rapey Jan blacksmith. Further, Wakil Khan P.W. Claims that he is the one who pointed out to the Investigating Officer the two places, one inside the shop and the other outside the shop from where the empties were recovered. The recovery of the said empties from point No,14 could not be explained by the Investigating Officer in his statement, nor could the same be satisfactorily explained by the learned counsel for the complainant and the State. Support to the plea of self-defence can be found from the admission of the Investigating Officer that the appellant had made a statement to him that the deceased and his companions had initiated the aggression upon him and that he had approached them through Umar Ali and others to desist from their designs. It means that the plea of self-defence was taken up by the appellant at the first available opportunity, and persistently asserted that stance by making representations for getting his version recorded.
18. Another significant aspect of the case in this context is the non-production of the three disinterested injured eye-witnesses, namely, Gul Khan, Maroof Khan and Asmatullah. True, the prosecution is at liberty to choose their witnesses but in the present case when there was allegation of cross-firing between the parties and a counter-version was being advanced by the accused, the non-examination of the independent witnesses cannot be lightly ignored. These witnesses were not declared hostile and attended the Court for recording their statements but were abandoned, and despite an application made by the defence for their examination, the learned trial Court did not examine them. The plea of defence before the trial Court was that the examination of these witnesses was necessary as the accused were also charged for injuries on them and therefore, they wete essential parties to the proceedings under the Qisas and Diyat Ordinance. Be that as it may, under the circumstances for the purpose of plea of self-defence, the probability cannot be ruled out that the independent witnesses may have supported the defence version of the occurrence. Even the Investigating Officer had admitted in his cross-examination that he had examined numerous shopkeepers adjacent to the spot but they were not supporting the prosecution case in the manner in which the occurrence had taken place.
19. This brings us to the circumstances under which the appellant was arrested soon after the occurrence at the spot. The normal reaction of an accused would be to flee from the spot after committing a crime, particularly when it leaves behind two dead and five injured and also when the co-accused decamped from the spot. There is however, no doubt that the appellant was arrested from the spot as not only there is overwhelming prosecution evidence to that effect but so it is the case of the defence. But it is undoubtedly unbelievable that an accused would voluntarily wait at the place of occurrence for over an hour for the police to come and arrest him and also expose himself to the danger of revengeful attack by the complainant party who had suffered casualties. There are however, different versions as to place from where the appellant was arrested. P.W. Sardar Ali Khan, S.H.O. Says that he was standing in a Veranda whereas the Investigating Officer and .P.W. Wakil say that he was arrested from a shop. On the other hand, P.W.
Hayat Noor had stated that the appellant had run towards the Kotha near the mosque. But seen in the light of the fact that he could not have stayed at the spot voluntarily the story given by P.W.
Wakil appears plausible. But this witness expressed his ignorance as to who had caught the accused Alam Khan and had put him behind the close door in the shop. He had stated that the shop was locked from outside but he did not know as to who provided the key to the Investigating Officer. The Investigating Officer also confirms that the appellant was arrested from inside the shop. It is not difficult to visualise that he was locked in the shop in .Protective custody by the elders of the area, who according to the defence version, had intervened not only before the occurrence but thereafter. Had there been no cross-firing from the complainant side, there was no hindrance for the appellant to have decamped. The prosecution interpretation of the facts therefore, is not plausible.
20. The earlier discussion regarding the registration of the F.I.R. Lends further impetus to the defence plea of self-defence in that preliminary investigation may have been necessitated in order to make the occurrence look one side and exclude evidence which might point to the cross-firing version.
21. The accused who takes up the plea of self-defence needs not prove it beyond reasonable doubt. He only has to show that from the evidence there is reasonable possibility that the plea is true. From the discussion aforementioned, we are of the considered view that there is enough material on the record from which we can gather that there was probably cross-firing between the complainant and the accused parties and that the appellant may have fired in self-defence, as there is nothing on the record to clearly establish that the appellant was the aggressor. Thus, we are inclined to accept the appellant's plea of self-defence and thereby extending the benefit of doubt to him. Consequently, Appeal No,30 of 1994 is accepted and the conviction and sentences of the appellant are set aside and the appellant is acquitted of the charge framed against him.
Accordingly, Murder Reference No,4 of 1994 is answered in the negative and Criminal Revision No,13 of 1994 is dismissed. This judgment shall not have any bearing on the merits of the case against the absconding accused.
' Above are the reasons in support of our short judgment, dated 3-7-1995. 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.