in the court of jehanzeb shinwari · afzal, all residents of malakpur, tehsil daggar, district...
TRANSCRIPT
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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,
15
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,
20
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