The above cases have arisen from Challan File No.4, dated 8-5-1996 decided by District Court of Criminal Jurisdiction Bagh on 12-5-2001 in Police Challan No.56 of 1996 filed on the basis of Police Report No.47 of 1996 by Police Station Bagh. Accused Raja Sarfraz Azam is sentenced to Qisas under section 302, A.P.C. and the case is sent to Shariat Court for confirmation of sentence under law. Muhammad Sadhir and Zahir Ahmed sons of Khan Afsar. Khan are sentenced to three years rigorous imprisonment with Rs.20,000 fine each and in default they shall undergo one year rigorous imprisonment. They are also given the benefit of section 382(B) of Cr.P.C. Sarfraz, Sadhir and Zahir have filed joint appeal against conviction order, while Muhammad Saghir complainant has filed the appeal against acquittal of six persons accused in the above referred case besides enhancement, of sentence against Muhammad Sadhir and Zahir. The matters being common, are heard together and decided through the proposed order.
2. Briefly stated the prosecution case is that a report was filed at Police Station Bagh by Muhammad Saghir on 8-3-1996 alleging that there was a dispute between the complainant and Sadhir accused and others over the water pipes which were taken to his home, but the pipes were removed and taken away by Sadhir and others on which a Jirga was convened, but Sadhir and others did not accept the decision of the Jirga and on 8-3-1996 another Jirga of elders was convened by Sadhir consisting of Muhammad Ishaq son of Said Akbar, Muhammad Habib Khan son of Mohib Ali Khan, Muhammad Aslam Khan son of Muhammad Saeed Khan who called the complainant to attend it on which he, alongwith Shabbir Khan his real brother, Taj Ahmed son of Muhammad Shafi, Muhammad Aqil son of Muhammad Bashir, Muhammad Razzaq son of Jamas Khan also Went there. The Jirga was convened in the mosque. According to the complainant, besides the Munsifs of the Jirga, Sadhir and Zahir sons of Ashraf Khan, Nazir Hussain son of Noor Hussain; Nasir son of Muhammad Habib Khan, Murtaza son of Nasim Khan, Muhammad Rizwan son of Muhammad Siddique resident of Mera Raqba Annarpur were already there. During the Jirga, Munsifs of the Jirga snubbed Sadhir and others when they uttered harsh words they stood up, left the Mosque and resorted to abusing the complainant. ' When complainant and his brother Muhammad Shabbir and Taj Ahmed came out of the mosque, the accused party attacked upon them. According to the complainant, Sarfaraz, Zahir and Sadhir were armed with pistols. Sarfraz and Zahir started firing on Shabbir his brother, with the intention to kill him, while Sadhir fired on Taj Ahmed. The other accused persons are alleged to have resorted to stoning the complainant and others which resulted in injury to Aqail son of Bashir Khan and Muhammad Razzaq son of Jamas Khan. Muhammad Shabbir died when he was taken to hospital. The police on the basis of this report registered the case against accused persons which ultimately culminated into Challan No.56 of 1996 before the District Cpurt of criminal jurisdiction Bagh. The prosecution produced as many as 19 witnesses before the trial Court while three witnesses Muhammad Habib, Raja Muhammad Aslam and Ishaq were given up. Accused persons also produced Muhammad Add, Israr Ahmed and Waqar Ahmed as defence witnesses.
3. The learned counsel for the complainant Khawaja Shahad Ahmed and Assistant Advocate- General Syed Ejaz Gilani defended the order of the Court below to the extent of sentence passed against Sarfraz Azam, however, assailed the judgment to the extent of other accused who have been acquitted and prayed for enhancement of sentence against Zahir and Sadhir. It is contended on their behalf that accused have been wrongly given the benefit of section 382, Cr.P.C. It is also alleged that as against their statements under sections 242 and 342, Cr.P.C. the accused have take an altogether different plea i.e. free fighting in the arguments before the Court, hence the Court is left with no option but to believe the evidence which consists of eye-Witnesses, the corroborative 'evidence i.e. recoveries, reports of the doctor and Fire Ann Expert. It is also contended by them that it is proved from the evidence on record that occurrence has taken place and if there is any discrepancy that cannot negate the occurrence. They placed reliance upon 2001 PCr.LJ 524. The learned counsel further contended that relationship does not debar the witness from being the competent witness; neither can his evidence be discarded on that ground. They placed reliance upon 1999 YLR 1908. The learned counsel further contended that there is unequivocal evidence against the other accused persons that they have caused injuries, but the Court below has wrongly acquitted them and that Zahir who had fired shot on Shabbir and Sadhir who fired pistol shot on Taj Ahmed have been awarded very minor sentence though the offence is proved against them beyond doubt. According to them, Zahir being equally responsible for the death of deceased, he should have also been awarded death sentence and Sadhir should have been awarded maximum sentence for causing injuries to Taj Ahmed. They placed reliance upon 1997 PCr.LJ 1522.
4. The learned Advocate appearing for the accused persons, Raja Muhammad Hand Khan, contended that the F.I.R. is not filed by the complainant as signatures on the F.I.R. do not correspond to the specimen signatures of the complainant-Saghir before the Court, hence the entire story of the prosecution is doubtful. He further contended that the F.I.R. does not contain the allegation that a pistol shot fired by Zahir hit. Shabbir in his ribs, hence, the evidence given by him and followed by the other prosecution witnesses is not reliable on this point. Arguing further he contended' that the prosecution has failed to produce impartial witnesses i.e. Muhammad Ishaq son of Said Akbar, Muhammad Habib Khan son of Mohib Ali Khan, Muhammad Aslam Khan, son of Muhammad Saeed Khan, Jurors who were called to resolve the controversy between the parties, hence, the presumption has to be drawn against the prosecution. He also contended that assuming any fight and occurrence having taken place, it appears to be free fight which was not premeditated, hence, the sentence of Qisas/death could not be passed against Sarfaraz. It is also contended that the recoveries are made in presence of the witnesses related to the complainant, though the place was surrounded by many houses and none of the inmates of the house was called to witness the recoveries. The learned Advocate placed reliance upon 1971 PCr.LJ 490; 1970 SCM R. 713; 1972 SCM R 572; 1976 PCr.LJ 28; 1973 SCM R 512; PLJ 1997 SC 28; 1970 PCr.LJ 1257 and 1972 PCr.LJ 1247 and 1972 PCr.LJ '1217 in support of his arguments.
5. I have gone through the record of the case and judgment recorded by the trial Court in the light of the arguments of the learned counsel for the parties and have duly considered the case law cited by the learned Advocates for the parties. A perusal of the record reveals that fact of occurrence is not disputed, nor the presence of the accused persons and the complainant party as per the. trend of cross-examination of eye-witnesses produced by prosecution. Over and above that the perusal of the statement of Sarfaraz, Zahir and 'Sadhir recorded by the trial Court under section 342, Cr.P.C. also reveals that the occurrence has taken place right at the place and time alleged by the complainant and they Were or around ' the mosque. They however, stated that Imtiaz and Sabir have tired at Shabbir and Taj and deceased is killed on account of their fire. The above statements of the accused are very important in perceiving, the prosecution and defence evidence.
6. The complainant-Muhammad Saghir in his statement has stated that his brother was murdered on Friday on 8th of March 1996 when Sarfaraz and Zahir fired at him with the intension to kill him.
According to him, Sarfaraz, Sadhir and Zahir were armed with pistol. According to him, Zahir fired first at Shabbic which hit him in the left side of the ribs and then Sarfarz fired two shots on him which hit the deceased on the left side near the ear and neck. Similar are the statements of Taj Ahmed, Muhammad Razzaq, Muhammad Shakil, Gul Rahim, Muhammad Aqeel who are the eye- witnesses as per the prosecution version. The prosecution witnesses Taj Ahmed, Muhammad Razzaq and. Muhammad Aqeel as per the injury report, are injured while Muhammad Murtaza, Muhammad Shabbir, Sharaz Khan and Nasir Ahmed accused respondents are also injured as per injury reports placed on the file of the trial Court. Shabbir is stated "to have died due to the injuries inflicted by the fire-arms while Taj Muhammad was dangerously injured and reported by the doctor to have suffered three fire-arm injuries as per report Exh.P.2. There is complete unison in the statements of the prosecution witnesses.
7. As far the above stated version of the prosecution 'is concerned, these witnesses were subjected to length cross-examination but nothing could be extracted from them to disbelieve their statements to this extent. The post-mortem report of the deceased-Shabbir Exh."PY" statement of doctor and the injury report of Taj Ahmed Exh."P-2" correspond to the eye-witnesses account. The recoveries of pistol, the weapons of offence, and the empties have been made on the pointation of the accused persons-Sarfaraz, Zahir and Sadhir, recovery memos. of which have been duly prepared and proved by the witnesses Muhammad Ameen and Muhammad Nazir. The report of the examiner of the firearms, Forensic Science Laboratory Lahore, Exh."P-22" also support the investigation version. The defence witnesses Muhammad Adil, Israr Ahmed and Waqar Ahmed have also admitted the occurrence having taken place at the time and place alleged by the prosecution. They have stated that they were present near the mosque and were playing cricket when the occurrence took place. The presence of the complainant, Taj Ahmed, Shakil, Aqeel and Razaq (prosecution witnesses) at the spot is admitted by them. They have, however, stated that the fire of Sabir injured Taj Ahmed and pistol fire of Imtiaz Ahmed hit Shabbir-the deceased. These two persons on whom the burden of the death of Shabbir and injuries to Taj is shifted by the accused and their witnesses are not stated by the prosecution to be around the place at time of occurrence. ,
8. As far the arguments of the learned Advocate for the defence, Raja Muhammad Hanif Khan, that the signatures of the complainant on the F.I.R. do not correspond to the specimen signatures obtained in the Court, hence, the story of the prosecution is doubtful is concerned, it does not carry any weight to disbelieve the prosecution version. The fact of the matter is that the occurrence has taken place and the accused as well as the complainant party were present at the place of occurrence which is witnessed by the eye-witnesses who are also stated to be there by the defence witnesses. Notwithstanding that I have compared the signatures in the presence of the learned counsel for the parties. There appears no variation or doubt in the signatures being of the same person. The specimen signatures before the Court appear to have been made in a hurry while the signatures on theappear to have been recorded with equanimity. Minor variations in hand writing do take place when a person is put to a different situation and environment while writing. Stretched alphabets here and there cannot make the signatures doubtful.
9. The other argument of the learned Advocate for the accused is that the complainant has not stated in the F.I.R. that the fire of Zahir hit Shabbir in ribs, hence, the evidence given by him and others on this point is not reliable and no conviction be passed on it. I have perused the F.I.R. the statements of the eye-witnesses and other relevant evidence. The F.I.R. no doubt does not specifically contained the fact of Shabbir being hit in ribs, however, the eye-witnesses have with complete unison stated that Shabir was hit in ribs by Zahir. Death report prepared by the police Exh.P.W/1 after examining dead body for sending it for postmortem clearly mentions the wound below the chest in the belly on the left side. The injury report of the deceased Exh.P.W. also contains the same detail of injuries. The part of body below the chest and belly is definitely the ribs part.
Muhammad Rashid, A.S.I. who prepared these documents has testified them as witness. He or any other witness is not cross-examined on this point which amounts to admission. No mentioning of the details in the F.I.R. as to which exact part of the body is hit by the fire does not make the case doubtful. In the case in hand, the prosecution evidence is clear beyond doubt that Shabbir's death was caused by firing and Zahir and Sarfaraz are the persons who are proved by the prosecution to have fired at Shabbir. The eye-witnesses have stated without any iota of doubt in their statements that pistol shot of Zahir hit deceased's ribs and pistol fire of Sarfaraz hit him in and around the neck.
30 bore pistol is recovered on Zahir's pointation vide recovery memo. Exh. "PO" with two empties which are certified by the examiner of fire-arms as carrying identical marks, vide Exh.22. The pistol shot by Zahir on Shabbir is thus established, Though cause of his death is injury No.2 caused by fire of Sarfaraz resulting in obstruction of airway as stated by the doctor.
10. The other contention of the learned witnesses who were jurors, have not been counsel for the defence that three impartial produced in the case, hence, the presumption be drawn against the prosecution, is equally not tenable. There is no doubt that the jurors who were called by the accused to settle the dispute between the accused and the complainant party who are eye- witnesses have not been produced by the prosecution, but their giving up does not mean that the prosecution has withheld the evidence or that they alone were the eye-witnesses. They were as good eye-witnesses as Other eye-witnesses produced by the prosecution who are also admitted by the defence witnesses to be present on spot when the occurrence took place. The prosecution is not bound to produce each and every eye-witness. It is the prerogative of the prosecution to produce only those witnesses on whom they most rely but it is at the same time their duty not to withhold the material witnesses. The jurors alone in this case were not material witnesses. The occurrence was witnessed by many other witnesses who' have been produced in the Court. The contention of the learned Advocate for the defence that only related witnesses are produced in the Court, hence, reliance cannot be placed upon them is not tenable or the reason that mere relationship does not discredit a person from being competent witness when the person or persons are natural witnesses as well. In this case, witnesses produced by the prosecution were not only natural witnesses who had attended the Jirga but are also admitted by the defence witnesses to be there when the occurrence took place. The Supreme Court of Azad Jammu and Kashmir in a case reported as Abdul Khalaq v. Jahangir and others 1999 YLR 1908 has held that related witnesses cannot be disbelieved as interested witnesses unless they have a motive to falsely implicate the accused. Moreover, none of the jurors has been produced in defence by the accused persons, although the defence was not bound to produce them, but when the defence alleges them to be impartial, they could have been produced by them.
10-A. It is unfortunately a tragedy of our social life that we lack moral courage to come forward voluntarily' to state truth as to what we see, hear or perceive, just for the sake of being called as neutral. This in fact is hypocrisy not neutrality. It is our religious and moral duty to state truth even if it is against our brothers. It appears that the jurors have refused to be witness for both the parties.
Hence none of the parties can be blamed for not producing them. Had there been no other eye- witnesses in the case. The Court could have, and should have called, rather Compelled them to appear as witness. But as the occurrence is otherwise witnessed, the non-appearance of these witnesses does not effect the case.
10-B. The contention of the learned Advocate that the recoveries are doubtful as having been made in the presence of the same related witnesses, equally does not carry weight. The recovery of the weapons of the offence is a corroborative evidence not principal or primary evidence. The fact of firing by accused persons is proved by the prosecution. The eye-witnesses have unequivocally stated that the accused persons have used pistols. The cause of death of Shabbir and injury of Taj is a result of fire arms, doctor has supported the version and the Fire Arm Expert also testified the weapons and empties. When the recovery witnesses have undoubtedly stated that the pistol and empties were recovered at the instance of the accused persons and those pistol and empties are also compared and verified by the Fire Arm Expert, the recoveries cannot be said to be doubtful for the mere reasons that the recoveries have been witnessed by the witnesses related to the complainant. The apex Court in the case of Abdul Rashid and three others v. Abdul Ghafar and two others 2001 PCr.LJ 524, has held that strict compliance of section 103, Cr.P.C. is not necessary in case of recovery or seizure made by police nor is the relationship of recovery witnesses a ground for rejecting their testimony. The other contention of the learned counsel for the defence is that the evidence discloses a free fight which does not appear to be premeditated, hence, the sentence of Qisas passed by the Court below is unwarranted. There is no doubt that if the death of a person takes place in a free fight which is not premeditated, the death penalty is ordinarily avoided. But in the case in hand, it is admitted between the parties that the Jirga was convened and accused party called upon the complainant party to attend it in the mosque. None from the complainant is accused of having used the fire-arms while the accused party is proved to be carrying the fire-arms and actually used them against the complainant party. Other persons are alleged to have stoned on each other, hence, the background of the case does not suggest that there was a free fight amongst the parties with equally equipped arms. Liability in this case in view of the circumstance has to be fixed in the light of the individual act of the accused persons, keeping in view the role played by each of them. As Sarfaraz, Zahir and Sadhir are proved to be equipped with the fire-arms and they have actually used the same while deceased and Taj were unarmed, their liability, therefore, has to be seen in that perspective.
11. The case of other accused persons is, however, distinguishable from the above three, some of the accused persons are also injured as per Medical Report placed on the record. It suggests that a free fight took place between the other members of complainant party except, deceased and Taj, and, the accused persons other than Sarfaraz, Zahir and Sadhir. These accused persons have not, explained as to Why they were carrying the pistol when the Jirga was convened. Assuming them to be armed for self-defence, there was no reason for them to resort to firing when the victims were unarmed, hence, the contention of the learned counsel that death of Shabbir is not intentional is devoid of force. Intention may not be pre-planned or premeditated, but it cannot be excluded when the assailant carried fire-arm and actually used it. The contention of the learned counsel for the accused that in view of the enmity between the parties on account of water pipes, the possibility of false implication cannot be excluded is equally not tenable when the eyewitnesses have undoubtedly proved the allegations and presence of the parties and witnesses is admitted.
There is no reason to disbelieve the version of the eye-witnesses who are natural and are admitted to have been at and around the place when the occurrence took place.
12. As far the other contention against the accused persons who are acquitted by the Court below are concerned, the prosecution evidence against them of stoning and beating the complainant and others with kicks and fists. The accused persons at the same time have also suffered injuries alongwith the complainant party whole injury reports are also placed on the record. This suggests a free fighting, where free exchange of stones took place between the acquitted accused persons and injured persons belonging to complainant party and both the parties are injured. In a state of hurly-burly, it is difficult rather impossible to fix the liability on anyone as to who was injured by whom. It is better to err in favour of the accused than to convict an innocent person, the trial Court has, therefore, rightly acquitted them.
13. According to the learned Advocate as all the accused persons are proved by the prosecution evidence to have attacked upon the complainant and they should be awarded the maximum sentence by setting the acquittal order. In the case in hand occurrence took place when the Jirga was being convened. Had all the accused persons connived with each other and premeditated to launch attach on the complainant party, the Jirga would not have been called as nobody commits offence by keeping eye-witnesses to watch it. It appears that during the Jirga some altercation took place between the parties which resulted in this unhappy incident. The altercation having gone out of control, everybody resorted to the means at his disposal. The case of Sarfaraz, Zahir and Sadhir, who were armed stands on a different pedestal from the other accused persons who were not armed and are accused of stoning and not taking any part in killing Shabbir or being equipped with fire-arms. The injured persons from the complainant party reciprocated stoning resulting in injuries to each other. In the absence of clear proof of conspiracy or premeditation, the common intention or object of killing the deceased , by forming unlawful assembly cannot be assumed, hence, everyone of the accused persons is responsible for his own act.
14. The above accused persons have taken up a specific plea in their statements under section 342, Cr.P.C. that murder is committed by Imtiaz and Sabir, who as per evidence on record appear to be closely related to the deceased and the complainant. Sabir as per record is wedded to the sister in law o1 the complainant and Imtiaz is brother-in-law of the complainant. There was no enmity between them. In spite of long cross-examination of the prosecution witnesses-, the defence has not been able to extract even an iota of evidence to support their version. Simple shifting the burden on Sabir and Imtiaz without any cogent proof cannot absolve them of the liability which is proved against them. Under section 119 of Qanun-e-Shahadat Act, it was the bounden duty of the accused persons to prove the particular fact alleged by them when substituted the liability. In the absence of proof on this specific plea, the proof unequivocally and undoubtedly connecting Sarfraz, Zahir and Sadhir with the killing of Shabbir and injuring. Taj has to be believed.
15. The legal precedents referred by the learned Advocate for the accused persons relates to general principles of law which cannot be disputed, however, they are not relevant in the present case of unequivocal eye-witnesses accounts.
15-A. The above discussion leads me to conclude that the trial Court has rightly appreciated the evidence and has drawn sound, reasonable and logical conclusion except awarding a lessor sentence without any reasonable justification to Zahir and Sadhir for the offence proved beyond doubt. Sarfaraz and Zahir fired at Shabbir which resulted in his death while fire by Sadhir resulted in dangerous injuries to Taj. These facts stand proved by the eye-witnesses, medical reports, recovery of incriminating articles and Firearm Expert's Report. The cause of death of Shabbir according to doctor's report and statements, is injury No.2, which is caused by pistol shot of Sarfaraz Azam, hence, he is held guilty of offence under section 302, A.P.C. Had he fired only one shot, the gravity of the offence would have been seen from that perspective given the background of the case. But he fired two successive shots and that too after the shot of Zahir which had already hit the deceased, hence, his intention to kill Shabbir is proved beyond doubt on account of which he is not entitled to any lesser sentence provided by law than the death.
16. Similarly the injury caused to Shabbir in ribs by the pistol fire of Zahir and three fire injuries caused to Taj Ahmed by the pistol fire of Sadhir stand proved beyond doubt who are found guilty of offence under section 324, A.P.C. The case against the acquitted accused persons is not proved beyond doubt.
17. In view of above, the order passed by the Court below on 12-5-2001 sentencing Raja Sarfraz Azam to death is confirmed and appeal filed by the convict accused persons is dismissed. The appeal filed by the complainant is partly accepted to the extent that sentence of imprisonment and fine passed against Zahir Ahmed and Muhammad Sadhir Khan is enhanced to ten years and each of them shall be liable to a fine of Rs.50,000 which shall be paid to the heirs of deceased and injured Muhammad Taj respectively, failing to pay the fine, each of them shall further undergo imprisonment of two years. Both of them shall be entitled to benefit of section 382-B, Cr.P.C. The appeal of the complainant to the extent of acquitted accused person is dismissed. The rest shall be followed in accordance with law and rules.