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IN THE COURT OF JEHANZEB SHINWARI ADDITIONAL SESSIONS JUDGE/IZQ-I, BUNER

Sessions Case No. 21/7 of 2014 Date of institution: 11.07.2014 Date of decision: 20.07.2017

THE STATE …VERSUS…

(1) Muhammad Siraj (2) Bakht Afzal (3) Said Afzal S/o (4) Muhammad Afzal (5) Muhammad Raziq sons of Kokaray (6) Mukhtiar Ahmad S/o Said Afzal, all residents of Malakpur, Tehsil Daggar, District Buner. …(Accused Facing Trial) (7) Zakir Ahmad S/o Muhammad Siraj R/o Malakpur, Tehsil Daggar, District Buner. …(Absconding Accused)

CHARGED VIDE FIR NO. 419, DATED 26.06.2014 U/S 302/324/148/149/337-D PPC R/W 13AO, PS PIR BABA

J U D G M E N T

1. Accused (1) Muhammad Siraj (2) Bakhti Afzal (3) Said Afzal (4) Muhammad

Afzal (5) Muhammad Raziq sons of Kokaray (6) Mukhtiar Ahmad S/o Said

Afzal, all residents of Malakpur, Tehsil Daggar, District Buner faced trial in the

subject case, whereas, accused Zakir Ahmad S/o Muhammad Siraj R/o

Malakpur, Tehsil Daggar, District Buner absented from the trial and was

proceeded U/s 512 Cr.PC.

2. Facts in brief of the case as contained in the FIR are that complainant Siraj-

ud-Din S/o Fazal Muhammad R/o Malakpur while in injured condition, in

Casualty of District Headquarters Hospital, Buner at Daggar, reported the

matter that on 26.06.2016 at 0800 hours he, alongwith, his brother Salah-ud-

Din was going from their house to their shop situated in Malakpur Bazaar,

when reached the place of occurrence, accused (1) Muhammad Afzal, (2)

Muhammad Siraj, (3) Bakhti Afzal, (4) Said Afzal, (5) Muhammad Raziq sons

of Kokaray, (6) Mukhtiar Ahmad S/o Said Afzal and (7) Zakir Ahmad S/o

Muhammad Siraj residents of Malakpur were already present there duly

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armed with firearms and as soon as they saw the complainant and his

brother, they started firing at them with murderous intention. On the report

of firing, wife of complainant Mst. Romana also came to the spot, who was

also fired at with murderous intention and with the firing of accused

Muhammad Siraj S/o Kokaray wife of complainant, namely, Mst. Romana was

hit between her left breast and left arm and died on the spot, whereas, due to

the firing of accused Bakhti Afzal complainant received firearm injuries on his

right chest, right hand and left thigh and was injured, while with the firing of

accused Mukhtiar S/o Said Afzal and Zakir Ahmad S/o Muhammad Siraj,

Salah-ud-Din got hit on his back and left chest and was injured. Motive behind

the occurrence as set out in the report is oral altercation taken place between

the parties one day prior to the occurrence. The occurrence was witnessed by

complainant himself, his brother Salah-ud-Din and many others present on

the spot. Complainant charged the accused for the murder of his wife Mst.

Romana and injuries inflicted to his person and the person of his brother

Salah-ud-din. Report of complainant was reduced into writing in the shape of

Murasila (Ex. PW3/1). Before lodging report (PW-3) had obtained certificates

regarding correct senses of the complainant and placed the same on record as

(Ex. PW3/2). Case in hand was accordingly established.

3. The case was entrusted to Said Asghar Khan SI (PW-12) for investigation,

who conducted investigation. After conclusion of investigation, case in hand

was submitted for trial. During the course of trial, copies were handed over to

accused facing trial U/s 265-C (1) Cr.PC. Charge was framed, accused pleaded

not guilty and opted to face the trial. Prosecution in order to prove its case,

produced (18) PWs and closed its evidence. The gist of depositions of PWs is

given below.

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4. (PW-1) Dr. Said Kawnain, CMO, DHQ Hospital Daggar, Buner testified that

on 26.06.2014 at 1015 hours he had examined injured complainant Siraj-ud-Din

in the casualty of DHQ Hospital Daggar, Buner. He was brought by Dr. Noor

Muhammad of Pir Baba. He was conscious and able to talk to give report. The

patient had injuries and blood stains on his body, and the following were found.

(1) There was a wound on the posterior side of right chest. It was on

the posterior auxiliary line near 1 cm in length. It was an entrance

wound of fire arm.

(2) There was another wound on the epigastria area of the patient. It

was near 3 cm in length. It was an exit wound of fire arm.

(3) There was another wound on the left side of thigh (femur bone). It

was also fire arm injury. There was a wound on lateral side of

thigh below pelvis joint 3 cm below joint. It was an entrance

wound. It was near 5 cm in length and another wound on the

medial side of femur bone near 2 cm in length. It was an exit

wound. It was near 6 cm below pelvis joint on medial side.

(4) There was another wound on the right hand. It had crushed the

bone of the hand with finger. It was also fire arm injury. We gave

him emergency treatment. The patient was seen by surgeon and

was referred to Tertiary Care Hospital for further management.

Opinion:

Type of injuries : Jurah-Ghayr-Jaifah.

This witness prepared report on 27.06.2014 while according to

OPD slip of LR&TH Peshawar, the patient was treated but expired

at 02:23 pm on 26.04.2014.

Cause of death :

(i) Grievous injury to vital organs.

(ii) Hemorrhagic shock.

(iii) Cardio-Pulmonary arrest.

Death Certificate and OPD slips were attached with his report and

the report has been brought on file as (Ex.PW-1/1). This witness

verified the report and signature thereupon. He has also verified

his endorsement upon the injury sheet as (Ex.PW-1/2).

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(PW-1) further deposed that on the same date and time he had

also examined injured Salah-ud-Din S/o Fazal Muhammad R/o

Malakpur, brought by Dr. Noor Muhammad of Pir Baba to DHQ,

Hospital Daggar. The patient was having history of fire arm injury.

At the time of examination the injured was conscious and was able

to talk and give report.

Findings:

There was a wound on his sub-scapular region. It was near 1 cm in

length. It was an entrance wound and was fire arm injury. There

was also another wound on his mid auxiliary line of anterior side

of left side of chest. The wound was about 2 cm in length. It was an

exit fire arm wound.

The injured was seen by general surgeon. He did chest intubation

and was referred to Tertiary Care Hospital for further

management.

Opinion: Jurah-Jaifah.

According to discharge slip of cardiothoracic ward LR&TH, he

remained admitted there from 26.06.2014 to 30.06.2014 at LRH

Peshawar.

There was haemothorax from fire arm injury and left side chest

intubation done.

Final Opinion: Jurah-Jaifah.

This witness verified his report (Ex.PW-1/3) and his signature thereupon

as correct and placed on file.

5. (PW-2) Ali Bahadar MHC Police Station Pir Baba deposed that he upon

receiving Murasila from Bakht Zamin Khan SI, Incharge Casualty, DHQ Hospital,

Daggar had chalked out FIR No. 419 (Ex. PW2/1). He depose that the FIR in his

hand writing and correctly signed by him.

6. (PW-3) Bakht Zamin Khan SI testified that on 26.06.2014 he was usually

present in the Casualty of DHQ Hospital, Daggar Buner and received

information about the injured Salah-ud-Din and Siraj-ud-Din sons of Fazal

Muhammad to have been brought to the Casualty, who were found in correct

senses. Injured Siraj-ud-Din reported the matter, which was reduced into

writing in the shape of Murasila (Ex. PW3/1). He further testified that the

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contents of Murasila were read over to the complainant Siraj-ud-Din who

understood and thumb impressed the report, whereas, injured Salah-ud-Din

also verified the report. (PW-3) also testified that he had obtained certificates

regarding correct senses of complainant and injured Salah-ud-Din and

exhibited both of them as (Ex. PW3/2 and Ex. PW3/3). He has also prepared the

injury sheet and inquest report of deceased Siraj-ud-Din, which are (Ex. PW3/6

and Ex. P3/7) and injury sheet of injured victim Salah-ud-Din as (Ex. PW3/8).

This witness has also obtained receipt regarding handing over of the dead body

of deceased Siraj-ud-Din to his relatives and placed the same on file as (Ex.

PW3/5).

7. (PW-4) Amir Ghazan SI deposed that he had prepared injury sheet and

inquest report of deceased Mst. Romana in Pacha Kalay Hospital, which were

handed over to lady Dr. Zahida. The injury sheet and inquest report have been

exhibited as (Ex. PW4/1) and (Ex. PW4/2), respectively, whereas, receipt

concerning handing over and taking over of the dead body of Mst. Romana has

been exhibited as (Ex. PW4/3).

8. (PW-5) Muhammad Amin is the marginal witness of recovery memos (Ex.

PW5/1) to (Ex. PW5/9), whereby the Investigating Officer took into possession

blood stained sand (Ex.P1), (Ex.P2) and (Ex.P3) from 03 different points of the

spot including the place of injured/victim Salah-ud-din. The blood stained earth

and sand were sealed in parcels on the spot; 03 empties shells of 7.62 MM bore

(Ex.P4), 02 empty shells of .30 MM bore (Ex.P5) and further 02 empty shells of

.30 MM bore (Ex.P6) were also collected by the Investigating Officer in the

presence of this witness. Similarly, blood stained garments of deceased Mst.

Romana (Ex.P7 and Ex.P8) and blood stained garments of deceased Siraj-ud-din

(Ex.P9) were also taken into possession by Investigating Officer in the presence

of this witness. This witness verified his signatures on all above mentioned

recovery memos.

9. (PW-6) Salah-ud-din S/o Fazal Muhammad deposed in line with the report

of complainant.

10. (PW-7) Sa’ad S/o Sirajudin also testified in line with the contents of report,

however, the name of this witness was not existing in the report as an

eyewitness of the occurrence.

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11. (PW-8) Lady Dr. Zahida, WMO, Civil Hospital, Pacha Kalay, Buner deposed

that on 26.06.2014 at 09:10 am she had examined the dead body of Mst.

Romana W/o Siraj-ud-Din aged about 40 years R/o Malakpur Buner brought by

ASHO PS Pir Baba. Details of her external Postmortem report are as under:

FA single wound 2x2 cm at the point of entry on

the left lateral quadrant of heart (alongwith the

anterior auxiliary line) with fresh blood. Point of

exit wound cannot be located externally,

therefore, a Chest X-ray Report (CXR)

anteroposterior (AP view) was ordered, which

showed a single bullet within the heart to the

right side of the inferior wall. CXR (AP) singed,

timed, dated and handed over to concerned police

official.

Time since death: ...... about 02 hrs.

Body identified by:…… (i) Jehan Zeb S/o Saeed Rahim R/o

Malakpur and (ii) Ali Rehman s/o Noor Zaman r/o Malakpur.

Cause of death:......Cardio-pulmonary Arrest secondary to invasive

intra-cardiac trauma.

Weapon used: ......... Fire Arm.

This witness verified her report (Ex.PW8/1), while endorsement on

inquest report as (Ex.PW8/2) and signatures thereupon.

12. (PW-9) Sher Wali Khan Inspector/SHO Police Station Pir Baba testified to

have arrested accused Muhammad Siraj, Zakir Ahmad, Bakhti Afzal and

Mukhtiar Ahmad during raid on their Hujra at 2000 hours on 27.06.2014 and

issued their card of arrest (Ex. PW9/1). He further deposed to have arrested

accused Muhammad Afzal, Said Afzal and Muhammad Raziq at 2200 hours on

10.07.2014 at Sultanwas during "Gusht" and issued their card of arrest (Ex.

PW9/2). He has also submitted challan and supplementary Challan in the

instant case which are (Ex. PW9/3) and (Ex. PW9/4) respectively. He verified

his signatures on the above mentioned documents.

13. (PW-10) Amshaid Khan HC is the marginal witness of recovery memo (Ex.

PW10/1), whereby the Investigating Officer had recovered one rifle without

number, alongwith, 6 live rounds (Ex.P10), 2 pistols .30 MM bore without

number, alongwith, live rounds of the same bore and magazines (Ex.P11) and

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(Ex.P12). He deposed that the weapons and ammunition were sealed on the spot

in his presence and accused had admitted to have used the weapons in the

crime. He is also marginal witness of pointation memo (Ex. PW10/2) and

verified his signatures on both the documents.

14. (PW-11) Ali Zada DFC No. 715 is the search witness. He deposed that he was

handed over with warrants U/s 204 Cr.PC against accused Muhammad Raziq,

Muhammad Afzal and Said Afzal, who were searched and found shifted to some

unknown place. This witness exhibited the warrants as (Ex.PW11/1) to

Ex.PW11/3) and his report thereupon as (Ex. PW11/4) to (Ex.PW11/6). He has

also executed the proclamation notices U/s 87 Cr.PC against the above

mentioned accused and stated that the proclamation notices were properly

executed. He placed on file the proclamation notices and his report as (Ex.

PW11/8) and (Ex. PW11/9) and verified his signatures thereupon.

15. (PW12) Said Asghar SI deposed to have conducted investigation in the instant

case. During the course of which he prepared site plan (Ex. PW12/1) on the

pointation of witnesses Hamaad and Saad and during spot inspection took into

possession blood stained sand (Ex.P1) from the place of deceased Mst. Romana,

vide recovery memo (Ex. PW5/1). He further deposed to have collected blood

stained sand (Ex. P2) from the place of injured victim Siraj-ud-Din, vide recovery

memo (Ex. PW5/2) and from the place of injured Salah-ud-Din blood stained

sand (Ex.P3), vide recovery memo (Ex. PW5/3) was also collected. Similarly, he

further deposed that during spot inspection he collected 03 crime empties of

7.62 MM bore (Ex. P4) from point ‘A’, which were lying scattered vide recovery

memo (Ex. PW5/4) and from point ‘B’ he has recovered 02 crime empties of .30

MM bore (Ex. P5) vide recovery memo (Ex. PW5/5). Similarly, from point ‘C’ he

has taken into possession 02 crime empties of .30 MM bore (Ex. P6), vide

recovery memo (Ex. PW5/6) and recorded the statements of PWs of the

recoveries. He also searched the house of accused and thereby prepared search

memos as (Ex. PW12/2 to Ex. PW12/6). He next deposed that on 26.06.2014

injured Siraj-ud-Din had expired in LRH, Peshawar, therefore, he issued

Parwana (Ex. PW12/7). He took into possession blood stained garments (Ex.

P7) of deceased Mst. Romana, vide recovery memo (Ex. PW5/7) and blood

stained garments (Ex. P8) of injured victim Salah-ud-Din, vide recovery memo

(Ex. PW5/8) and blood stained garments (Ex. P9) of deceased Siraj-ud-Din, vide

recovery memo (Ex. PW5/9). The Investigating Officer examined the witnesses

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of recovery U/s 161 Cr.PC. Investigating Officer has also interrogated accused

Muhammad Siraj, Zakir Ahmad, Bakhti Afzal and Mukhtiar who were arrested

by the SHO and also issued “Parwana” (Ex. PW12/8) for the correction of name

of accused Mukhtiar as Mukhtiar Ahmad. He also interrogated the arrested

accused and for that purpose obtained physical custody from the concerned

Magistrate vide his application (Ex. PW12/9), and on the pointation of accused

Muhammad Siraj, Muhammad Afzal, Bakhti Afzal and Mukhtiar Ahmad

recovered the crime weapon i.e. one Kalashnikov without number, alongwith, 6

live rounds of 7.62 bore, 2 pistols of .30 MM bore without number, alongwith, 11

live rounds of the same bore. He testified that accused Muhammad Siraj had

concealed the Kalashnikov, whereas, accused Bakthi Afzal and Mukhtiar had

concealed the pistols in sand and they took out the weapons and admitted that

the occurrence was committed through the said weapons, and prepared

recovery memo (Ex. PW10/1). He has also prepared the sketch of recovery (Ex.

PW12/10) and added S. 13-AO vide memo (Ex. PW12/11). Similarly, the

arrested accused were taken to the sight of occurrence, where they pointed out

their positions at the time of occurrence, in this respect pointation memo was

prepared which is (Ex. PW10/1). In this respect too, the Investigating Officer

recorded the statements of PWs and accused U/s 161 Cr.PC and produced the

accused before the Magistrate for recording their confessional statements vide

application (Ex. PW12/12), but they refused to confess, therefore, were

remanded to judicial lockup. The recovered weapons were handed over to the

Muharrir, alongwith, applications (Ex. PW12/13) and (Ex. PW12/14) for

sending the same to FSL. (In this respect the defence counsel objected

exhibition of the application, however, the same was not decided then. Yet,

learned defence counsel could not produce any law in support of his

objection and prohibiting the witness to bring on file the application in

original---therefore, the objection is discarded). After recovery of injured

victim Salah-ud-Din, he was taken to the spot and the spot was verified from

him and entries were made with red pen, which are (Ex. PW12/15). Lists of

legal heirs of deceased Siraj-ud-Din and Mst. Romana were prepared and

brought on file as (Ex. PW12/16) and (Ex. PW12/17). He initiated search

proceedings against accused Muhammad Afzal, Said Afzal and Muhammad

Raziq in the shape of warrants U/s 204 Cr.PC and proclamation notices U/s 87

Cr.PC and brought on file his applications in this respect as (Ex. PW12/18) and

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(Ex. PW12/19) and examined the concerned DFC, namely, Ali Zada (PW-11) U/s

161 Cr.PC. He annexed the Medico-legal documents vis-à-vis injury sheet and

inquest reports of the deceased and injured as well as death certificate of

deceased Siraj-ud-Din and added S. 337 D PPC to the already applied sections of

law vide memo (Ex. PW12/20). He also interrogated accused Muhammad Afzal,

Said Afzal and Muhammad Raziq after their arrest and obtaining 02 days

physical custody of the accused vide application (Ex. PW12/21). Those accused

also admitted their crime before the Investigating Officer and the spot was got

verified from the accused vide identification memo (Ex. PW12/22). A .30 MM

bore pistol was also recovered on the pointation of accused which was bearing

No. H741913, alongwith, charger and 4 live rounds of the same bore. In this

respect, recovery memo was exhibited as (Ex. PW12/23) and the pointation

memo as (Ex. PW12/24), whereas, the pistol as (Ex. P9) and its cartridges as

(Ex.P10), and produced them before the Magistrate for recording their

confessional statements vide application (Ex. PW12/25), but they refused, hence

were remanded to judicial lockup. The pistol which was recovered on the

pointation of accused was sent to FSL through Muharrir of the Police Station

vide application (Ex. PW12/26) (In this respect the defence counsel objected

exhibition of the application, however, the same was not decided then. Yet,

learned defence counsel could not produce any law in support of his

objection and prohibiting the witness to bring on file the application in

original---therefore, the objection is discarded). The reports of FSL

concerning weapons and blood stained articles were received by the

Investigating Officer and annexed with judicial record as (Ex. PW12/27) to (Ex.

PW12/29) and the case was handed over to the SHO for submission of challan.

16. (PW-13) Zahidullah S/o Noorani Gul has furnished certificate for not

conducting the Postmortem examination of the deceased and brought the same

on file as (Ex. PW3/4). Similarly, he has submitted receipt for receiving the dead

body of deceased Siraj-ud-Din, which is (Ex. PW3/5) and testified that he had

identified the dead body.

17. (PW-14) Shehzada S/o Talizar has furnished certificate for not conducting

the Postmortem examination of the deceased Mst. Romana and brought the

same on file as (Ex. PW14/1). Similarly, he has submitted receipt for receiving

the dead body of deceased Romana, which is (Ex. PW4/3) and testified that

deceased Mst. Romana was his niece.

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18. (PW-15) Ali Rahman S/o Noor Zaman had identified the dead body of Mst.

Romana in Pacha Kalay Hospital.

19. (PW-16) Dr. Sher Alam MO Civil Hospital Pacha Kalay, Pir Baba had

examined accused Mukhtiar Ahmad on 26.06.2014 and deposed that he had

found the following injuries on his head region:

One of them was slightly large about 2 cm, wound was not deep. Other wounds

were absolutely superficial. Not seen other wounds on the body. Not noticed

exposures of bones of head. Not noticed other wounds on the body. Type of

injury in his opinion was Shajjah-e-Khafifah and exhibited his report as (Ex.

PW16/1).

20. (PW-17) Ali Zada HC No. 715 has been re-examined with respect to pointation

memo (Ex. PW12/22) and recovery memo (Ex. PW12/23), whereby, crime

weapons (Ex. P9) and its ammunition (Ex. P10) were recovered. This witness

verified his signature on the pointation and recovery memos.

21. (PW-18) Meer Ghaza SI has been re-examined by the prosecution, as he had

inadvertently not exhibited the injury sheet of accused Mukhtiar Ahmad. He

testified that he had prepared the injury sheet of accused Mukhtiar Ahmad and

brought the same on file as (Ex. PW18/1). He further stated that report of the

injured was entered in Mad No. 11.

22. Prosecution closed its evidence. Therefore, accused facing trial were

examined U/s 342 Cr.PC, wherein, they professed innocence, however, did

not opt to lead evidence in their defence or to appear as their own witness on

oath. Therefore, I have heard the arguments of learned APP for State assisted

by learned counsel for complainant and learned counsel for accused facing

trial and have gone through the case file, carefully.

23. Learned counsel for complainant and APP for State argued that accused facing

trial have directly been charged in promptly lodged FIR with specifications of

their roles by the complainant, who died subsequently, therefore, the report

qualifies to be a dying declaration. Learned counsel further argued that the

report/dying declaration is corroborated by corroborative pieces of evidence

such as the site plan, recovery of incriminating articles from the spot,

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recovery of blood stained garments of the deceased, recovery of weapon of

offence on the pointation of accused, testimony rendered by injured victim

Salah-ud-Din who had also received firearm injuries on vital parts of his body

during the occurrence, medico-legal evidence brought on file and conduct of

the accused facing trial immediately after the occurrence. Learned counsel

further argued that the ocular account furnished by the complainant in his

report and by the injured victim Salah-ud-Din also get support from the

injuries sustained by accused Mukhtiar Ahmad and in this respect referred to

the testimony of (PW-18), who brought on file the injury sheet of accused

Mukhtiar Ahmad as (Ex. PW18/1) and testified that report of accused

Mukhtiar Ahmad was incorporated in Mad No. 11. Learned counsel contended

that in his report, accused Mukhtiar Ahmad has not only shown his presence

on the spot rather admitted his presence there right at the time of occurrence

advanced by the complainant in the instant case. Thus, the presence of

accused facing trial, complainant, injured victim and deceased remained

proved on the spot. He further argued that the evidence remained

corroborated on material points of the case and prosecution succeeded in

bringing home the guilt of accused of commission of crime of murder and

attempted murder and prayed for infliction of normal penalty of death and

relied upon the following dictums of hon'ble Superior Courts:

2012 PCr.LJ 588, 2001 SCMR 1474, 2008 SCMR 819, 2006 YLR 1713, 2009

SCMR 99, 2003 PCr.LJ 699, 1995 SCMR 1776 and PLD 2007 Peshawar 31.

24. Learned counsel for accused facing trial argued that prosecution has failed to

prove its case against the accused facing trial. The dying declaration is not

believable as complainant Siraj-ud-Din had received injuries on vital parts of

his body and he was unable to give statement, however, with the connivance

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of his relative Dr. Noor Muhammad the dying declaration has been managed.

He further argued that in the given situation, naturally and normally, no one

is able to give statement with specification of role assigned to each accused

and seat of injuries sustained by the victims, therefore, apparently the alleged

report has been engineered to be a dying declaration. Learned counsel next

argued that the site plan does not support the version of prosecution and the

deposition of injured eye witness Salah-ud-Din, as from the point assigned to

the injured Salah-ud-Din (point No. 3), points assigned to accused

Muhammad Siraj, accused Bakhti Afzal, accused Muhammad Afzal, accused

Said Afzal and deceased Mst. Romana are not visible as there are intervening

superstructures, therefore, how could injured victim Salah-ud-Din witness

the occurrence to have been committed by those accused, remained a begging

question and drags the case to the ambit of serious doubts. Learned counsel

further argued that accused facing trial have been substituted, as admittedly

complainant party is inimical towards Taliban. Learned counsel, terming the

case as that full of doubts, requested for acquittal of the accused and relied

upon the following dictums of the Hon'ble Superior Courts:

A.I.R. 1938 Lahore 268, 2013 MLD 665, 2015 PCr.LJ 554, A.I.R. 1938 Lahore

268, 2016 SCMR 1233, PLD 2006 Supreme Court 255, PLJ 2006 SC 1002, PLD

2004 Peshawar 1, 2013 YLR 1257 [Lahore], PLD 2008 Supreme Court 1, 2015

PCr.LJ 248 [Peshawar], 2016 SCMR 1605 [Supreme Court of Pakistan], 2016

PCr.LJ 1758 [Lahore], 2008 SCMR 1064 [Supreme Court of Pakistan] and

2010 PCr.LJ 1270.

25. Perusal of record in the light of arguments of learned counsel for parties and

learned counsel APP for State would show that the case of prosecution is

primarily based upon the report of complainant Siraj-ud-Din lodged in

injured condition in DHQ Hospital, Buner at Daggar, who thereafter

succumbed to injuries at LRH Peshawar and ocular account furnished by

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(PW-6) Salah-ud-Din S/o Fazal Muhammad as well as (PW-7) Saad S/o Siraj-

ud-Din and corroborative pieces of evidence such as motive of oral altercation

taken place one day prior to the occurrence, recovery of incriminating articles

from the spot, recovery of bloodstained clothes of deceased and injured

victim, recovery of crime empties, Medico-legal evidence brought on file.

Whereas, the defence line is that real culprits were Taliban, who have been

substituted by the accused facing trial and absconding accused by the

complainant for having motive of altercation.

26. Record depicts that the occurrence took place at 0800 hours on 26.06.2014,

whereas, complainant Siraj-ud-Din lodged the report in injured condition, in

DHQ Hospital, Buner at Daggar at 0900 hours, and the report was received by

(PW-3) Bakht Zamin ASI. (PW-3) while entering the witness box, (PW-3)

testified that the he had obtained certificate regarding correct senses of

complainant as well as injured victim Salah-ud-Din which has been exhibited

as (Ex. PW3/3) and (Ex. PW3/2), respectively, and thereafter, report of the

complainant was received and reduced into writing in the shape of Murasila

(Ex. PW3/1) and thumb impression of complainant was obtained thereupon,

whereas, the report was signed as verifier by injured victim Salah-ud-Din.

Moreover, (PW-1) Dr. Said-ul-Kawnain testified that when he was examining

the injured complainant Siraj-ud-Din, he was conscious and able to talk to

give report, clearly show that injured complainant Siraj-ud-Din and injured

victim Salah-ud-Din were able to talk at the time of lodging report and were

conscious. In this respect, it is pertinent to mention that defence failed to

shatter the credibility of (PW-1), (PW-3) and (PW-6) on the material

particulars of consciousness and ability to give statement at the time of

report. Yet, there is consistency in between the report which is a dying

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declaration and the statement of (PW-6) concerning the presence of accused

facing trial, complainant, injured victim Salah-ud-Din and deceased Mst.

Romana on the relevant time at the place of occurrence and roles assigned to

each accused as well as sustaining injuries on the persons of victims, besides,

motive. Defence also failed to have shattered the testimony of material

prosecution witnesses on relevant and material particulars of the case. Hence,

the ocular account brought on file in the shape of report i.e. dying declaration

of complainant Siraj-ud-Din, testimonies of (PW-6) Salah-ud-Din, (PW-1) Dr.

Said-ul-Kawnain and (PW-3) Bakht Zamin ASI are adjudged to be consistent,

coherent, trustworthy and confidence inspiring.

27. Further strength is provided by the fact of injuries sustained by accused

Mukhtiar Ahmad. In this respect the testimony of (PW-18) is relevant, who

stated to have prepared the injury sheet of accused Mukhtiar Ahmad and

referred to Daily Diary Report No. 11. The copy of report is also available on

file, which shows the presence of accused Mukhtiar Ahmad and other accused

as well as complainant party on the spot, squarely proving the presence of the

parties at the spot at the relevant time.

28. Learned defence counsel objected that in the circumstances when the

complainant had received injuries on vital parts of his body, who admittedly

had succumbed of the injuries, was not able to give such a detailed and

consistent statement/report even specifying roles of each accused and the

seat of injuries sustained by each victim, therefore, the report has been

managed with the help and connivance of Dr. Noor Muhammad, a close

relative of complainant, to make it a dying declaration. He next objected that

the position assigned to injured Salah-ud-Din in the site plan was not visible

from the places assigned to accused Muhammad Siraj, Bakhti Afzal,

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Muhammad Afzal and Said Afzal, therefore, it was not possible for him to have

seen the roles/actions of these accused, therefore, the ocular testimony is not

reliable. In this respect this court is confronted with two rival propositions

vis-à-vis the evidence brought on record which speaks loud about the facts of

ability to give statement, assigning specific role to each accused and injuries

sustained with specification of seat of injuries on the person of each victim

and human estimation/presumptions. It is to be seen as to whether the

evidence shall prevail or the human estimation or presumptions. The reply is

very simple, in modern as well as Sharia Laws, the evidence shall prevail as

human estimation and presumptions are always prone to errors.

29. In this context an ancillary objection has also been raised by the learned

defence counsel vis-à-vis engineering of the report with the help and

connivance of Dr. Noor Muhammad. Learned defence counsel contended that

Dr. Noor Muhammad is a senior doctor of the district and is widely respected

in the concerned circles and being the close relative of complainant party, he

had prevailed upon (PW-1) in procuring the dying declaration. In this respect

learned defence counsel referred to the testimony of (PW-6), who during

cross examination had stated that he had not seen Dr. Noor Muhammad in the

emergency ward, whereas, (PW-1) Dr. Said-ul-Kawnain had himself stated

that injured Salah-ud-Din was brought by Dr. Noor Muhammad himself. In

this connection it is observed that admittedly (PW-6) Salah-ud-Din had

received firearm injuries on his person and was brought to DHQ Hospital,

Buner at Daggar and during cross examination, (PW-1) has stated that he had

spent about 01 hour to bring injured Salah-ud-Din to stable condition and

thereafter, he was referred to Peshawar. Such deposition of (PW-1) would

clearly show that being seriously injured he could not focus on the

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identification of Dr. Noor Muhammad in the Hospital in such critical condition

when about 01 hour was spent to bring him to stable condition. Moreover,

being relative of the complainant party, the presence of Dr. Noor Muhammad

in the Hospital at the time of such emergency is not something beyond

understanding. It is the stuff/evidence concerning the occurrence which is to

be seen. Therefore, the objections raised by learned defence counsel being

not well founded are discarded.

30. Another ancillary objection was raised by learned defence counsel that when

injured Salah-ud-Din received injury, at was on his back side, then how he

witnessed the occurrence with such minute details. In this perspective, it is

observed that human bodies are not statues and the occurrence was not an

incident of a single shot rather a complex matter wherein there was

proceeding of the injured victim from his house to shop, observance of the

accused duly armed and the occurrence wherein one lady died on the spot,

whereas, complainant died in the Hospital and (PW-6) received firearm

injuries. Thus, the objection of learned defence counsel is weak, hence,

discarded.

31. Learned counsel also contended that the time of examination of injured Siraj-

ud-Din disclosed by (PW-1) at 1015 hours as against the report lodged at

0900 hours, therefore, the delay hints at consultation and deliberation and

thereby concoction. Obviously, there seems delay, but if we analyze the time

of examination of deceased Mst. Romana in Pacha Kalay Hospital as per the

statement of (PW-8), it is 0910 hours. Thus, keeping in view the distance in

between the place of occurrence and DHQ Hospital, Daggar coupled with the

situation to handle a dead body, a dying complainant and a seriously injured

victim, the delay is adjudged to be not fetal.

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32. Site plan has been prepared on the pointation of (PW-7) Saad S/o Siraj-ud-

Din and Hamaad S/o Misbah-ud-Din highlighting positions assigned to

complainant, deceased Mst. Romana, injured Salah-ud-Din and each accused

with specification of roles. Learned defence counsel, as discussed above

contended that the position of Salah-ud-Din (PW-6) was not visible from the

places assigned to accused Muhammad Afzal and Muhammad Siraj etc. In this

respect, he stated that there were constructed superstructure in between, in

the shape of house and Hujra of accused Muhammad Siraj. (PW-12) when

appeared in the witness box to confront the cross examination, he very

clearly stated that there was no gate of the Hujra of accused Muhammad Siraj

and that the wall of the Hujra of accused Muhammad Siraj towards south was

having a height of only 02 feet clearly suggesting that the positions were

visible to each other. Even otherwise, site plan was not a conclusive piece of

evidence.

33. Medico-legal evidence brought on file in the shape of injury sheet of deceased

then injured complainant Siraj-ud-Din (Ex. PW3/6), medical report furnished

thereupon by (PW-1) as (Ex. PW1/1), his inquest report (Ex. PW3/7),

alongwith, endorsement of (PW-1) as (Ex. PW1/2) and death certificate of

deceased complainant Siraj-ud-Din brought on record; inquest report of

deceased Mst. Romana (Ex. PW4/2), alongwith, endorsement of (PW-8);

injury sheet of injured victim Salah-ud-Din (Ex. PW3/8), alongwith, medical

report furnished by (PW-1) as (Ex. PW1/3) showing firearm injuries on the

persons of deceased and injured strongly corroborates the version of

prosecution. The testimonies of (PW-1), (PW-3) and (PW-8) are consistent

vis-à-vis the weapon used and nature of injuries being firearms. Defence

could not shatter the depositions of these witnesses on material particulars of

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the case. Non-conduct of postmortem examinations is not fetal for the case

prosecution.

34. Recovery of the incriminating articles from the spot i.e. blood stained sand

(Ex. P1) vide recovery memo (Ex. PW5/1) from the place of deceased Mst.

Romana, blood stained sand (Ex. P2) vide recovery memo (Ex. PW5/2) from

the place of deceased then injured Siraj-ud-Din, blood stained sand (Ex. P3)

vide recovery memo (Ex. PW5/3) from the place of injured Salah-ud-Din,

blood stained garments (Ex. P7) of deceased Mst. Romana taken into

possession vide recovery memo (Ex. PW5/7), blood stained garments (Ex.

P8) of injured Salah-ud-Din taken into possession vide recovery memo (Ex.

PW5/8), blood stained garments (Ex. P9) of deceased Siraj-ud-Din taken into

possession vide recovery memo (Ex. PW5/9), when are seen in juxtaposition

with the report of Serologist (Ex. PW12/28) and depositions of Investigating

Officer and witnesses of the recovery memo, would speak to have not been

shattered by the defence despite lengthy cross examinations and would

provide corroboration to the case of prosecution. Similarly, recovery of 03

crime empties of 7.62 MM bore (Ex. P4) vide recover memo (Ex. PW5/4),

recovery of 02 crime empties of .30 MM bore (Ex. P5) vide recovery memo

(Ex. PW5/5) and 02 crime empties of .30 MM bore (Ex. P6) vide recovery

memo (Ex. PW5/6) if are seen in juxtaposition with the report of firearm

expert (Ex. PW12/27) in the light of recoveries of crime weapons on the

pointation of accused, giving positive result also corroborates the version of

prosecution. In this respect, the testimonies rendered by the witnesses of the

recoveries were consistent and have not been shattered on material points of

recovery of crime empties from the spot and recovery of weapons of offence

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on the pointation of accused facing trial vide recovery memo (Ex. PW12/22)

and (Ex. PW12/23).

35. Motive as set out in the report is oral altercation taken place between the

parties one day prior to the instant occurrence. Though (PW-6) and

complainant have vividly mentioned the motive part of this case in the report

as well as in the court statement, however, defence has not denied the

existence of motive, explicitly. Even otherwise, if, motive is considered, not to

have been proved, the established law on the subject provides that it would

not vitiate the prosecution case. Guidance in this respect is sought from the

judgment of august Supreme Court of Pakistan reported in PLD 2007

Supreme Court 453 (d), which provides for the principle laid down in this

respect:

“Absence of motive---effect---Lack of motive or weakness thereof is immaterial to withhold the normal penalty of death in murder cases, when trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt".

36. In the light of above discussion and keeping in view the direct and by

name charge of murder and attempted murder contained in the FIR

(Ex.PW2/1), which qualifies to be a dying declaration, specific roles

assigned to accused Muhammad Siraj, Bakhti Afzal, Mukhtiar Ahmad and

absconding accused Zakir Ahmad, ocular testimony of prosecution

witnesses, corroborated by the recoveries of incriminating articles and

Medico-legal reports, it is held that prosecution has successfully proved its

case to the effect that accused facing trial Muhammad Siraj committed the

murder of Mst. Romana by making firing at her with intention to kill,

whereby, she was hit and died on the spot, accused facing trial Bakhti Afzal

fired at complainant Siraj-ud-Din with intention to commit his murder,

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whereby, he was hit, got injured and subsequently succumbed to the

injuries, accused facing trial Mukhtiar Ahmad and absconding accused

Zakir Ahmad fired at injured/victim Salahuddin with intention to kill,

whereby, he was hit and got injured. Therefore, accused facing trial

Muhammad Siraj and Bakhti Afzal are hereby, convicted under section

302(b) PPC, whereas, accused Mukhtiar Ahmad is convicted U/s

324/337D PPC. However, keeping in view the injuries sustained by

injured accused Mukhtiar Ahmad on his head suggests that the occurrence

was the outcome of sudden fight/provocation, therefore, I would restrain

from awarding the punishment of death and upon conviction U/s 302(b)

PPC, accused Muhammad Siraj and Bakhti Afzal are hereby sentenced to

imprisonment for life. They are further sentenced to pay a fine to the tune

of Rs. 5,00,000/-(five lacs) each, to be paid to the legal heirs of each of the

deceased U/s 544-A, Cr.PC. In case of default of payment of fine, the

convict shall undergo simple imprisonment for a term of six months, each.

And, upon conviction under section 324 PPC, accused Mukhtiar Ahmad is

sentenced to imprisonment for ten (10) years and is also fined to the tune

of Rs. 50,000/-(fifty thousand). In case of default of payment of fine, the

convict shall undergo simple imprisonment for three (03) months. And,

upon conviction under section 337D PPC, accused Mukhtiar Ahmad is

sentenced to imprisonment for ten (10) years and is also sentenced to pay

Daman to the tune of Rs. 40,000/-(forty thousand) to injured victim Salah-

ud-Din. Accused Muhammad Siraj, Bakhti Afzal and Mukhtiar Ahmad are

also convicted U/s 13-AO and upon conviction are sentenced to undergo

simple imprisonment for three (03) years, each. They are also sentenced

to pay a fine of Rs. 5,000/- each, in case of default, they shall undergo

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further SI for one (01) month, each. All the sentences shall run

concurrently. Benefit of section 382-B Cr.PC is extended to the convicts.

The amount of fines shall be recoverable as arrears of land revenue from

the person and estate of the convict.

37. Accused Muhammad Siraj and Bakhti Afzal are in custody, whereas,

accused Mukhtiar Ahmad is on bail, therefore, accused Mukhtiar Ahmad is

taken into custody. His sureties are absolved from the liabilities of bail

bonds.

38. Prosecution has, however, failed to prove participation of accused

Muhammad Afzal, Said Afzal and Muhammad Raziq in the case in any

manner. Mere their presence on the spot being the residents of the same

village would not incriminate them. Therefore, accused Muhammad Afzal,

Said Afzal and Muhammad Raziq are hereby acquitted from the charge

contained in the FIR.

39. Prosecution has also proved the existence of a prima facie strong case

against the absconding co-accused, namely, Zakir Ahmad, therefore,

perpetual warrants of arrest issued against him and his name be entered

in the list of proclaimed offenders. It is further directed that proceeding

U/s 88 Cr.PC be initiated against him, if not already initiated.

40. Case property be kept intact till the arrest/apprehension of absconding

accused Zakir Ahmad.

41. Attested copy of this judgment is provided to the convicts free of cost, and

to this effect their acknowledging thumb impressions has been obtained

on the margin of order sheet of this file. Another copy be sent to the

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District Public Prosecutor, Buner within in the meaning of section 373

Cr.PC.

42. File be consigned to the record room after necessary completion and

compilation.

Announced 20.07.2017

JEHANZEB SHINWARI Additional Sessions Judge/IZQ-I,

Buner

CERTIFICATE It is hereby certified that this judgment consists of twenty two (22) pages, each page read corrected and signed by me.

JEHANZEB SHINWARI Additional Sessions Judge/IZQ-I,

Buner