judgment sheet in the peshawar high court, sheet in the peshawar high court, ... appellant (s) :...
Post on 03-Apr-2018
218 Views
Preview:
TRANSCRIPT
*M.Siraj Afridi P.S. D
1
JUDGMENT SHEET
IN THE PESHAWAR HIGH COURT, PESHAWAR
(Judicial Department)
Cr.A. No.488-P/2013
Date of hearing: 28.10.2014
Date of announcement: 20.11.2014
Appellant (s) : Amjad Ali by Mr. Aziz ur Rehman,
Advocate.
Respondent(s) :Maqsood Ali by Mr. Muhammad Saleem Khan, Advocate and the State by Mian Arshad Jan AAG.
JUDGMENT ASSADULLAH KHAN CHAMMKANI, J.- Appellant
Amjad Ali, was tried by learned Judge Anti-Terrorism
Court, Mardan, for committing murder of Wilayat
Shah, Sadiq Ali, and Ghufran Ullah deceased, as well
as attempting at the lives of Maqsood Ali and Abidin,
causing them firearm injuries, and on conclusion of
trial, vide impugned judgment dated 12.09.2013, he
was convicted and sentenced in the following
manner:-
1. Under Section 302 (b)/34 PPC read with S.7 (a)
Anti Terrorism Act: To undergo life imprisonment and
*M.Siraj Afridi P.S. D
2
to pay Rs.3,00,000/- to LRs of the deceased, as
compensation in terms of section 544-A Cr.P.C.
2. Under Section324/34 PPC read with S.7 © of
the Anti Terrorism Act: To undergo 10 years R.I.
3. Under Section 337-F (iii) & (v)/34 PPC: To
undergo 03 years R.I. and to pay Rs.10,000/- to each
injured as “Daman”.
All the sentences have been directed to run
concurrently and benefit of S. 382-B Cr.P.C. has been
extended him.
2. Being discontented with his conviction and
sentence, Amjad Ali convict, has filed instant appeal,
seeking reversal of the impugned judgment, while the
State through Advocate-General Khyber Pakhtunkhwa,
Peshawar, has filed connected Criminal Appeal
No.591-P/2013, titled, “The State Vs Amjad Ali”
seeking enhancement of sentence of the convict from
life imprisonment to normal penalty of death and for
the same purpose complainant Maqsood Ali, has
preferred Cr.R. No.104-P/2013.
*M.Siraj Afridi P.S. D
3
3. As all the three, are the outcome of same
judgment of the learned Trial Court dated 12.09.2013,
therefore, we are going to dispose of these through
this common/single judgment.
4. Prosecution case as unfolded in First
Information Report is that, on 16.11.2007 at 0820
hours complainant Maqsood Ali (PW.11), reported to
Noor Waris Shah S.I. (PW.15), in injured condition, in
Civil hospital Kalu Khan, District Swabi, that on the
fateful day he alongwith his brothers Sadiq Ali and
Usman Akbar (PW.12), accompanied their father
Wilayat Shah to see him off at Peshawar, as he was
proceeding to Saudi Arabia to perform Hajj
(pilgrimage); that at 08.00 a.m, when they reached
Swabi road near “Kalu Khan main stop Intizargha
Swabi”, in the meanwhile, Amjad Ali (appellant-
convict herein) alongwith his brother Zulfiqar Ali
Bhutto (absconding co-accused), duly armed with
firearms, came there and opened fire at them with
intention to do away with them and resultantly, his
*M.Siraj Afridi P.S. D
4
father Wilayat Shah, brother Sadiq Ali and a passerby,
namely, Ghufran Ullah, were hit and died on the spot;
while he and one Abid Din a passerby, sustained
firearm injuries. After the occurrence, the accused
decamped from the crime spot. A land dispute is
stated to be motive behind the crime. In addition to
complainant, the incident is stated to have been
witnessed by PWs Usman Akbar, Imran and Farukh
Shehzad. Report of the complainant was reduced into
writing in the shape of murasila Exh.PA/1 by Noor
Waris Khan SI (PW.15), on the basis of which, FIR
Exh.PA bearing No.1401, dated 16.11.2007, was
registered under sections 302/324/34 PPC read with
S. 7 ATA, at Police Station Kalu Khan, District Swabi.
Noor Waris Khan SI PW.15, prepared injury sheets of
the injured and referred them for medical treatment.
Similarly, he after preparing injury sheets and inquest
reports of the deceased named above shifted their
dead bodies to mortuary for post-mortem
examination.
*M.Siraj Afridi P.S. D
5
5. Dr. Bakht Jamal (PW.13), examined injured
complainant Maqsood Ali on the same day at 8.35
a.m. and found a firearm grazing wound, measuring
1 x ¼ inches, at dorsum of his left hand. Similarly, on
examination of injured Abid Din, a firearm entrance
wound with corresponding exit on lateral side of right
thigh was observed.
On the same day at 9.00 a.m. PW.13,
conducted autopsy on the dead body of deceased
Ghufran Ullah and found the following injuries on his
person:-
i) Three firearm entrance wounds on the right
side neck, size ¼ x ¼ inches each.
ii) Firearm exit wound, size 2 x 2 inches on
the left side chin.
iii) Firearm exit wound on the left ear size ½ x
½ inches.
iv) Firearm exit wound on the left side
neck size ½ x ½ inches.
Opinion:
According to opinion of the Medical Officer,
death of the deceased was the result of injury to his
skull, brain and other vital organs. Probable time
*M.Siraj Afridi P.S. D
6
between injury and death has been given as
instantaneous while between death and post mortem
about an hour.
On post-mortem of deceased Sadiq Ali,
Medical Officer found the following injuries:-
i) Firearm entrance wound size ¼ x ¼
inches on the right side chest.
ii) Firearm exit wound size ½ x ½ inches on
the left side chest.
iii) Firearm entrance wound on the lateral side
of left upper arm size ¼ x ¼ inches.
iv) Firearm exit wound on the medical side
of the left upper arm size ½ x ½
inches.
v) Firearm gazing wound on the medical side
of right upper arm size 1 x ½ inches.
vi) Left humorous fractured.
Opinion:
As per opinion of the Doctor, the cause of
death of the deceased was injuries to his heart and
lungs. Probable time between injuries and death has
been observed as instantaneous while between death
and post-mortem within two hours.
*M.Siraj Afridi P.S. D
7
On the same day at 9.45 a.m. autopsy on
the dead body of Wilayat Shah was also conducted by
PW.13 and found the following injuries on his person:-
i) Firearm grazing wound size 3 x 2
inches on left corpus.
ii) Firearm entrance wound size ½ x ½
inches on right lateral side of chest.
iii) Firearm exit wound on right side back of
chest size ½ x ½ inches.
iv) Firearm entrance wound on the right
posterior side of chest size ¼ x ¼
inches.
v) Firearm exit wound on the right interior
side of the chest size ½ x ½ inches.
vi) Firearm entrance wound on the lateral side
of the right upper arm size ¼ x ¼
inches.
vii) Firearm exit wound on medial side of the
right upper arm size ½ x ½ inches.
viii) Firearm grazing wound on the epigastria
size 1 x ¼ inches.
The cause of death of the deceased has been given as
injuries to right lungs and blood vessels.
6. Muhammad Mumtaz Khan S.I. (PW.16),
after registration of the case, rushed to the spot and
prepared site plan Exh.PB on the pointation of
eyewitnesses. During spot inspection, he secured
*M.Siraj Afridi P.S. D
8
bloodstained clay, sand and grass as well as some
blood with the help of cotton, from the places of the
deceased, vide recovery memos Exh.PW.7/1 and
PW.7/2. Vide recovery memo Exh.PW.7/3 he took into
possession 6 crime empties of 7.62 bore Exh.P.2 and
broken glass of Suzuki No.M.1269-Peshawar. He also
took into possession the last worn bloodstained
garments of the three deceased vide recovery memos
Exh.PW.8/1 to Exh.PW.8/3. Suzuki mentioned above,
having bullet marks, was also taken into possession
vide recovery memo Exh.PW.16/2. Vide recovery
memos Exh.PW.16/4 and Exh.PW.16/5, he took into
possession bloodstained garments of two injured.
Since the accused were avoiding their lawful arrest,
therefore, he initiated proceedings under sections 204
and 87 Cr.P.C., sent the bloodstained articles to the
FSL, reports whereof are Exh.Pw.16/13 and
PW.16/14, recorded statements of the PWs under
section 161 Cr.P.C. and on completion of
investigation, handed over case file to Izhar Shah
*M.Siraj Afridi P.S. D
9
Khan SHO, who submitted challan against the accused
in terms of section 512 Cr.P.C. against the accused.
Both the accused were proceeded under section 512
Cr.P.C. and were declared as Proclaimed Offenders by
the learned Trial Court vide order dated 10.05.2010.
7. Accused/appellant Amjad Ali was arrested
on 28.01.2013. Supplementary challan was submitted
against him before the learned Trial Court, where he
was formally charge sheeted on 13.03.2013, to which
he pleaded not guilty and claimed Trial. To bring
home the guilt of appellant, prosecution examined as
many as sixteen witnesses. After closure of the
prosecution evidence, statement of the appellant was
recorded under section 342 Cr.P.C., wherein he
denied the prosecution allegations and professed his
innocence. He, however, neither wished to be
examined on oath under section 340 (2) Cr.P.C. nor
opted to produce evidence in defence. On conclusion
of trial, learned Trial Court, after hearing both the
*M.Siraj Afridi P.S. D
10
sides, convicted and sentenced the appellant, as
mentioned above.
8. Learned counsel for the appellant argued
that appellant is innocent and has been implicated
falsely in the case; that the mode and manner of
seeing off father of the complainant, who allegedly
was proceeding to Saudi Arabia for performance of
Hajj, being contrary with the common practice and
customs of society, does not appeal to a prudent
mind, as in our society Hajis are usually seen off by
their kith and kin in a respectable manner by hiring a
special vehicle for them; that no document about visit
of deceased Wilayat Shah to Saudi Arabia for
performance of Hajj has been produced during
investigation; that complainant and PW Usman Akbar,
being brothers inter-se, having land dispute with the
accused, and being closely related to two deceased,
are inimical and interested witnesses, therefore, their
testimony cannot be believed and relied upon; that
site plan contradicts the version of the complainant, as
*M.Siraj Afridi P.S. D
11
he has not mentioned about presence of any Suzuki
on the spot, but in the site plan a Suzuki has also
been shown; that no trail of blood has been observed
by the I.O. on the spot on the points of the two
deceased, who after receiving injuries, allegedly
covered some distance; that injury on palm of left
hand of the complainant is self-inflicted just to prove
his presence on the spot; that mere stamp of injuries
on the person of an injured witness would not be a
certificate of his credibility and truthfulness; that PW
Usman Akbar has failed to establish his presence on
the spot; that injured PW Abid Din and other PWs,
namely, Imran and Farukh Shehzad, being impartial
persons, have been abandoned by the prosecution for
no good reasons, which amounts to withholding of
best available evidence, hence, adverse inference
would be taken against the prosecution that had they
been examined in the court, they would not have
supported the prosecution case; that only six empties
have been recovered from the spot, which on one
*M.Siraj Afridi P.S. D
12
hand, do not commensurate with the number of
injuries on the persons of deceased and injured, while
on the other hand, these have not been sent to the
FSL, so as to determine the number of the assassins;
that nothing has been stated in his initial report by the
complainant qua shifting of the dead bodies and
injured to the hospital; that no recovery of the crime
weapon or anything incriminating has been effected
from direct or indirect possession of the appellant nor
on his discovery nor has he confessed his guilt before
any competent court of law. He vehemently
contended that testimony of complainant and PW
Usman Akbar, being contradictory with the site plan
as well as medical evidence and finding no
corroboration from other circumstances of the case,
has wrongly been believed and relied upon by the
learned Trial Court; that mere abscondence of an
accused would not be sufficient for recording
conviction in a capital charge; that prosecution has
miserably failed to bring home the guilt of the
*M.Siraj Afridi P.S. D
13
appellant through cogent and confidence inspiring
evidence beyond any shadow of doubt, therefore,
while extending benefit of doubt to the appellant, he
be acquitted of the charge.
9. Conversely, while controverting the
arguments of learned counsel for the appellant,
learned counsel for the complainant contended that
appellant along with his absconding co-accused is
directly charged for brutal murder of three deceased
and causing injuries on the persons of two injured in a
promptly lodged report, eliminating the possibility of
consultation, deliberation and substitution; that
incident is that of a broad daylight and parties being
real cousins inter-se, question of mistaken identity
does not arise; that presence of injured complainant
and PW Usman Akbar, is well established on the spot,
out of them complainant also sustained injury; that
testimony of eyewitness gets corroboration from
medical evidence, recoveries from the spot i.e. blood,
crime empties, Suzuki having bullet marks, and
*M.Siraj Afridi P.S. D
14
documents about Hajj of deceased Wilayat Shah
brought during cross-examination of the complainant
by the defence himself; that mentioning of each and
every detail in the FIR is not essential; that ocular
account, being straightforward and confidence
inspiring, cannot be discarded on the mere ground of
close relationship of the eyewitnesses with the
deceased; that it is quality of the evidence which is of
vital important in dispensing justice in criminal cases
and not the quantity, thus, statements of two
eyewitnesses would be sufficient for recording
conviction; that motive as alleged, has been squarely
proved; that injuries on the persons of the three
deceased speak volumes about brutality of the
accused; that dimension of injuries on the persons of
the deceased squarely proves the incident not to be
the job of a single person; that nothing has been
brought on record to prove the injury of the
complainant to be self inflicted; that the prosecution
has proved the guilt of the appellant through cogent,
*M.Siraj Afridi P.S. D
15
credible and confidence inspiring evidence upto the
hilt, and the learned Trial Court by appreciating the
evidence in its true perspective, has reached to a right
conclusion by holding the appellant guilty of the
offence. He however, added that when the guilt of the
appellant was squarely proved and there was no
mitigating circumstance, the learned Trial Court ought
to have awarded him normal penalty of death, as
provided for the offence. He sought dismissal of the
appeal and requested for enhancement of sentence of
the appellant/convict.
10. Learned AAG while supporting the
arguments of learned counsel for the complainant,
contended that keeping in view the gravity of the
offence, where three innocent human lives have been
done away with brutality and two have been injured,
the appellant deserves exemplary punishment i.e.
normal penalty of death, as there is no mitigating
circumstance to suggest any lenient view against him.
He sought dismissal of appeal of the appellant and
*M.Siraj Afridi P.S. D
16
requested for enhancement of sentence of the
appellant/convict by accepting State appeal.
11. We have given our anxious consideration to
the exhaustive arguments of learned counsel for the
parties, learned A.A.G. for the State and perused the
record with their valuable assistance.
12. On the face of record, this untoward
incident took place in early hours of November, 2007
at 8.00 a.m., on Swabi road near Kalu Khan Main Stop
(Intizargha), which has been reported by injured
complainant Maqsood Ali with promptitude at 8.20
a.m. i.e within 20 minutes. The promptly lodged
report, eliminates the possibility of deliberation,
consultation, concoction, and fabrication on the part
of complainant. Being a broad daylight incident, and
parties’ real cousins inter-se, question of any mistaken
identity does not arise. We do not see any
circumstance which may suggest substitution of the
accused because it does not appeal to a prudent mind
that complainant would let off the real assassins of his
*M.Siraj Afridi P.S. D
17
father and brother by implicating his innocent cousins
without any reason. Guidance in this regard may be
derived from the judgment of the apex court in case
titled, “Zar Bahadar Vs the State” (1978 SCMR
136), wherein it has been held “that witnesses
related to deceased would not normally allow real
murderer to escape by implicating an innocent person
and evidence of such witnesses requires only careful
scrutiny but not to be rejected on the score of close
relationship alone”. Complainant without any wastage
of time directly charged the appellant and absconding
co-accused (brother of the appellant) by furnishing
true account of the incident. Motive alleged by him
has been proved by him as well by Abdul Latif
(PW.13). PW Abdul Latif deposed that he had
purchased some land from deceased Wilayat Shah
vide deed Exh.PW.13/1, which land was claimed by
father of the accused; that differences developed
between deceased Wilayat Shah and father of the
accused on execution of the aforesaid deed. He
*M.Siraj Afridi P.S. D
18
further deposed that there were disputes between
fathers of both the parties on other properties. In light
of statement of Abdul Latif, we would not hesitate to
hold that land disputes prompted the accused to do
away with Wilayat Shah along with his sons from their
path.
13. Maqsood Ali injured complainant while
appearing as PW.11 furnished the ocular account of
the incident. In examination-in-chief, he reiterated the
same story as set forth by him in his report. He has
been subjected to taxing cross-examination by the
defence, but nothing favourable could be extracted
from him. He stuck to his stance and successfully
passed the test of cross-examination. His statement is
consistent with the testimony of PW Usman Akbar on
each and every material aspect of the incident.
Admittedly, complainant also sustained injury in the
incident; therefore, we entertain no amount of doubt
about his presence on the spot at the time of incident.
The argument of the learned counsel for the appellant
*M.Siraj Afridi P.S. D
19
that his injury is self inflected is unpersuasive,
because no shred of evidence whatsoever has been
led to prove injury of the complainant as such. Had it
been so, the medical officer would have observed
charring marks on his injury, but no such remarks has
been given by the Doctor neither in medico legal
report of injured complainant nor in his court
statement. As regard another limb of the arguments
of learned counsel for the appellant about non-
mentioning of Suzuki by complainant in his initial
report, suffice it to say that this omission of such a
trivial nature, would not damage the prosecution case,
because said Suzuki was neither the ownership of
complainant party nor in their occupation, rather was
being plied on the road by a driver who was alien to
them. Complainant alongwith his father Wilayat Shah
and brothers Sadiq Ali and Usman Akbar, was waiting
for conveyance on the crime spot to see off their
father at Peshawar Haji Camp, when all of a sudden
the accused emerged there and shot dead his father
*M.Siraj Afridi P.S. D
20
and brother Sadiq Ali and attempted at his life by
causing him injury, so complainant being in severe
shock of murder of his father and brother as well as
pain of his own injury, would not have given attention
to the vehicles plying on the road. Keeping in view the
peculiar facts and circumstances of this untoward
incident, non-mentioning of Suzuki in his report being
a minor omission, is ignorable, as in such critical
situation, no one could be expected to observe each
and every thing on the spot, not concerning him.
Except above, complainant has given each and every
detail of the incident.
14. Usman Akbar, son of Wilayat Shah and
brother of complainant as well as deceased Sadiq Ali
appeared as PW.12. He is also eyewitness of the
incident. He deposed that on the day of occurrence
his father was going for Hajj, so he, complainant and
Sadiq Ali, accompanied him to see him off at
Peshawar Haji Camp, and the moment they reached
*M.Siraj Afridi P.S. D
21
the crime spot at Swabi road, in the meantime at 8.00
a.m. appellant alongwith absconding co-accused
Zulfiqar alias Bhutto, emerged there duly armed with
Kalashnikovs and opened fire at them, as a result, his
father Wilayat Shah, brother Sadiq Ali and a passerby
Ghufran Ullah got hit and died on the spot, while
complainant Maqsood Ali and cleaner of Suzuki,
namely, Abid Din sustained injuries whereas he luckily
remained unscathed. This witness has also been
subjected to lengthy and comb searching cross-
examination by the defence, but nothing favourable to
defence could be extracted from him. Rather he
remained consistent with the complainant on each and
every aspect of the occurrence and corroborated his
testimony.
15. The story furnished by complainant has
been justified by the defence in cross-examination of
injured Maqsood Ali where while replying to a
question of defence, he deposed that though he had
not provided the documents of his father about
*M.Siraj Afridi P.S. D
22
performance of Hajj to the I.O. during investigation,
as those were misplaced at that time, he however
placed these documents on file i.e. a receipt of “Abu
Talha Hajj Services Pvt Limited Peshawar), in
the name of his deceased Wilayat Shah, containing
detail of payment of Rs.145000/-, CNIC number of the
deceased etc. He also produced a congratulation
receipt in the name of deceased Wilayat Shah about
his nomination to perform Hajj in December, 2007. In
the aforesaid receipt Flight No. PK.1211 and date of
departure of deceased Wilayat Shah, has been
mentioned as 17th November, 2007 at 0615 hours.
The occurrence has taken place on 16th November,
2007 at 08.00 a.m. i.e. a day prior to his departure
from Pakistan. There is another card on the file in the
name of Wilayat Shah deceased, issued by
Government of Pakistan Ministry of Religious Affairs,
Zakat & Usher, showing detail of vaccination of the
deceased before leaving for Saudi Arabia. The
credibility and authenticity of all these documents
*M.Siraj Afridi P.S. D
23
have not been questioned by the defence in cross-
examination of the complainant. These documents
squarely justify the story of the complainant that they
were accompanying their father who was going for
Hajj. As, usually people, nominated for Hajj, reach
“Haji Camp” Peshawar, a day prior to their
departure from Pakistan to Saudi Arabia, where they
are provided special training and necessary
instructions of the Hajj. In the instant case, as
manifest from Hajj documents of deceased Wilayat
Shah, he had to leave Pakistan on 17.11.20007, so he
along with his sons/eyewitnesses Maqsood Ali and
Usman Akbar as well as his deceased son Sadiq Ali,
was on the way to “Haji Camp Peshawar” from
village on 16.11.2007, as alleged by both the
eyewitnesses in their court statements, but met with
an unfortunate incident. The argument of the learned
counsel for the appellant that the mode and manner
of travelling of Wilayat Shah to Peshawar in routine
transport is against the normal practice and customs
*M.Siraj Afridi P.S. D
24
of the society is not tenable, as there are no hard and
fast rules, that each Haji should be seen off by their
kith and kin in a special vehicle. Each and every
person is the owner of his own will and it depends
upon him whether he leaves for Hajj in pomp and
show or in a simple way. We have observed that
many people do not like pomp and show while
proceeding to Hajj and prefer simple way, like the one
adopted by the complainant party in the instant case.
Proceeding of deceased Wilayat Shah to “Haji Camp”
on the day of incident, is well established. He being
father, presence of deceased Sadiq Ali, PWs Maqsood
Ali and Usman Akbar, his real sons to see him off at
Peshawar, was natural. In view of the above, we
entertain no amount of doubt, about presence of both
the eyewitnesses on the spot at the time of incident
with the deceased.
16. The ocular account is supported by
recovery of blood from the spot from the places of the
three deceased and positive Serologist Reports as well
*M.Siraj Afridi P.S. D
25
as recovery of crime empties of 7.62 bore, which
establish the crime spot to be the same as alleged by
the complainant. The unnatural death of the three
deceased and firearm injuries on their persons in light
of autopsy reports further corroborates the
prosecution version. In presence of direct ocular
evidence of unimpeachable character, mere non-
sending of the empties to the FSL, which otherwise is
the slackness of the I.O., would not be fatal to the
prosecution case being evidence of the second
degree. Admittedly, where the direct evidence is
confidence inspiring, trustworthy and wholly
believable, then there is no need of corroboratory
evidence i.e. evidence of the second degree, hence,
mere non-sending of the crime empties to the FSL per
se is no ground for rejecting such evidence and
throwing away the entire prosecution evidence, which
otherwise, we have found reliable and trustworthy.
17. As regard close relationship of the PWs, as
agitated by learned counsel for the appellant, suffice
*M.Siraj Afridi P.S. D
26
it to say that a trustworthy and confidence inspiring
testimony of a witness cannot be discarded on the
basis of his mere close relationship with the deceased
or complainant. As stated earlier, both the
eyewitnesses of the instant case have furnished
straightforward and confidence inspiring account of
the incident, corroborated by other strong
circumstances of the case, therefore, we have no
reason to discard their testimony on the basis of their
close relationship. We have observed that in the
present society no alien stands witness against the
offenders to earn enmity for himself and for his family
for the sake of others, and if the courts, discard the
testimony of witnesses on mere close relationship,
then there will be no evidence at all against the
culprits and they would easily escape from the grip of
the law, which exercise would increase the ratio of
crimes in the society. Such tendency though
important, has been taken note of in a number of
cases and condoned in view of the peculiar conditions
*M.Siraj Afridi P.S. D
27
prevailing in the country. In the case in hand, the
ocular account furnished by PWs Maqsood Ali and
Usman Akbar is worthy of credence, confidence
inspiring, credible and irrefutable which has rightly
been considered by the learned trial Court. The
defence has failed to bring an iota of evidence to
prove any ulterior motive of the eyewitnesses towards
the appellant/accused to falsely implicate him in the
case. The apex Court in Dildar Hussain’s case
(PLD 2004 Supreme Court 663) while dilating
upon the evidence of related witness, in Paragraph
No.11 of the Judgment observed as under:-
“Learned counsel appearing for
respondent No.3 contended that as far as
this witness is concerned, he is also
related to the complainant party as it has
been admitted by P.W. Dildar Hussain in
his cross-examination. We inquired from
him as to whether such question was put
to him his answer was in negative. It
*M.Siraj Afridi P.S. D
28
may be noted that firstly mere
relationship with the complainant party is
not sufficient to discard evidence unless it
is proved that he has ulterior motive to
involve the respondent No.3 in the
commission of the offence”.
18. In Muhammad Mansha’s case,
the Hon’ble Supreme Court defining interested
witness has held as under:-
“An interest witness is one who has a
motive for falsely implicating an
accused, is a partisan and is involved in
the matter against the accused.
Friendship or relationship with the
deceased will not be sufficient to
discredit a witness particularly when
there is no motive to falsely involve the
accused”.
The principles for accepting the testimony of even an
interested witness, are set out by the Hon’ble
*M.Siraj Afridi P.S. D
29
Supreme Court in Nazir’s case (PLD 1962 SC
269).
19. The arguments of the learned counsel for
the appellant that adverse inference is to be taken
against the prosecution because of non-production of
rest of the eyewitnesses named in the FIR, is without
any force, as in criminal cases, what is more essential
to be observed by the courts, is the veracity and
credibility of the witnesses and not their numbers and
relationship, because it is quality and not the quantity
of the evidence which matters. In the instant case
two eyewitnesses have been examined. By virtue of
Article 17 of the Qanun-e-Shahadat Order, 1984, in
financial matters, two male or one male and two
female witnesses, have been made the requirement of
law to prove the financial obligations. Whereas in all
other matters including criminal, there is no such
obligation, which clearly suggest that a single witness
is sufficient to prove a fact. When the law permits a
fact to be proved through the statement of a single
*M.Siraj Afridi P.S. D
30
witness, there is no reason or logic to call for more
witnesses than one. The Hon’ble Supreme Court in
Zar Badadar’s case (1978 SCMR 136), has
clarified the situation by holding the following:-
“We are also aware, and learned counsel
place great stress on it that according to
the two eyewitnesses, Mohammad Sher
was with them and that the other
persons in the hotel including its
proprietor had seen the murder. Mr.
Enayat Elahi, therefore, submitted that
the courts had erred in law in not
drawing an adverse inference against the
prosecution for not examining these
other witnesses. The submission is not
correct because the prosecution is not
required to examine every eyewitness of
a crime. The only question if whether the
evidence of the witnesses is sufficient to
prove the prosecution version of the
*M.Siraj Afridi P.S. D
31
crime and both the courts have held that
the evidence of PWs Akbar and Roidad
were sufficient to prove the petitioner’s
guilt as we indicated this finding is
supported by evidence, therefore,
nothing turns on the fact that the
prosecution did not examine every
possible eyewitness of the murder.
Additionally, as pointed out by the
courts, the ocular evidence receives
support from the evidence for the motive
of the crime and from the petitioner’s
abscondance because the abscondance
was for a long period”.
Same view has been reiterated by the apex court in
case titled, “Muhammad Ahmad and another Vs
the State and others”(1997 SCMR 89), that
“prosecution is not required to examine every
eyewitness of a crime”.
*M.Siraj Afridi P.S. D
32
20. In case titled, Muhammad Mansha Vs
the State” (2001 SCMR 199), the Ho’ble Supreme
Court while dilating upon the spirit of Article 17 of the
Qanun-e-Shahadat Order, 1984, held the following:-
“A bare perusal would reveal that the
language as employed in the said
Article 17 (1) (b) is free from any
ambiguity and no scholarly
interpretation is required. The
provisions as reproduced hereinabove
of the said Article would make it
abundant clear that particular number
of witnesses shall not be required for
the proof of any fact meaning thereby
that a fact can be proved only by a
single witness”.
In the Judgment Supra in Para No.7, the apex Court
held that conviction can be recorded on the testimony
of a single witness in the following words:-
“Even as the guilt of an accused person
may be proved by the testimony of a
single witness, the innocence of an
accused person may be established on
the testimony of a single witness, even
*M.Siraj Afridi P.S. D
33
though considerable number of
witnesses may be forthcoming to testify
to the truth of the case for the
prosecution. The Court is concerned
with the quality and not with the
quantity of the evidence necessary for
proving or disproving a fact. (Principles
and Digest of the law of Evidence by
M.Monir page 1458).
The Hon’ble Supreme Court in the judgment Supra
while referring to C.D. Field on the law of Evidence
(Page 4746) reproduced the following:-
“Thus evidence of a single witness is
sufficient to sustain and may legally be
made the sole basis for a conviction, the
relevant section 134 having enshrined
the well-recognized maxim that
‘evidence has to be weighed and not
counted’. Through the Legislature has
placed no jurisdictional limitation on the
power of a Judge to act on the sole
testimony of a single witness, even
though uncorroborated, the Judges
themselves have from time to time
*M.Siraj Afridi P.S. D
34
evolved some rules and guidelines of
circumspection as to when such evidence
can be or cannot be acted upon without
corroboration.(Pema Dukpa v State
Sikkim. 1981 Cr. LJ 276).
Taking guidance from the judgments of the apex court
(Supra), the learned Trial court was right in not
drawing adverse inference against the prosecution for
not examining rest of the eyewitnesses named in the
FIR, who even otherwise, were stated to have been
won over.
21. It is borne out from the record that soon
after the incident, appellant/accused went into hiding
and remained fugitive from law for considerable long
period, for which he has not furnished any plausible
explanation. Proceedings under sections 204 and 87
Cr.P.C. had been initiated and completed against him
and even trial under section 512 Cr.P.C. was
conducted wherein he was declared Proclaimed
Offender. The unexplained disappearance of the
appellant from the ordinary place of residence
*M.Siraj Afridi P.S. D
35
immediately after the occurrence knowingly that he
was being charged for the murder of the deceased
tantamounts to deliberate absconsion with guilty
mind, therefore, it would be another circumstance to
establish his culpability.
22. For the forgoing discussion, we have
reached to an irresistible conclusion that prosecution
has proved the guilt of the appellant up to the hilt
through cogent and confidence inspiring evidence and
the learned Trial Court has rightly held him guilty of
the offence. Resultantly, we while dismissing his
appeal, maintain his conviction recorded by the
learned trial Court.
23. Now the moot question before us would
be the quantum of the sentence to be awarded to the
appellant to meet the ends of justice. The impugned
judgment reveals that learned Trial Court has not
furnished any mitigating circumstance to warrant
lesser sentence of the appellant-convict under section
*M.Siraj Afridi P.S. D
36
302 (b) PPC, readwith section 7 (a) Anti-Terrorism Act,
and probably so because there was no mitigating
circumstance before the learned Trial Court. We have
also scrutinized the record/evidence from each and
every angle, but did not find any such circumstance to
persuade us for taking lenient view against the
convict. The evidence on record proves that
convict/respondent’s hands are coloured with the
blood of three deceased and two injured. It would be
immaterial that whether his fire or that of absconding
co-accused proved fatal, because we are confronted
with three dead bodies of the deceased and two
injured for which two accused, including the convict
are charged. Under section 34 PPC, when a criminal
act is done by several persons, in furtherance of the
common intention of all, each of such persons is liable
for that act in the same manner as if it was done by
him alone. Common intention implies acting in concert
in pursuance of pre-arranged plan which is to be
proved either from conduct or from circumstances or
*M.Siraj Afridi P.S. D
37
from incriminating facts. In the instant case the
conduct of the convict i.e. having a land dispute with
the complainant party, arming himself with deadly
weapon, reaching the spot along with his co-accused,
and then committing offence, clearly proves his
common intention in commission of the offence.
Common intention generally involves element of
common motive, pre-plan preparation and actual
pursuance to such plan, which in the case in hand, are
very much apparent on the part of the accused. The
learned counsel for the convict was specifically asked
to point out any mitigating circumstance which may
warrant lesser punishment but he failed. Three
innocent lives have been done to death while two
have been injured by attempting at their lives by the
appellant, thus, keeping in view his brutality, he
deserves no leniency. Finding no mitigating
circumstance, we by allowing Criminal Appeal
No.591-P/2013, titled, “The State Vs Amjad
Ali”, enhance the sentence of convict Amjad Ali from
*M.Siraj Afridi P.S. D
38
life imprisonment to the normal penalty of death on
three counts under section 302 (b)/34 PPC readwith
Section 7 (a) of Anti Terrorism Act. He be hanged by
the neck till he is dead. The conviction and sentences
of the convict under remaining offences as awarded by
the learned Trial Court shall remain intact.
24. The appellant has been tried by Special
Court/ Judge Anti Terrorism Court under Anti
Terrorism Act, and there is, no provisions of criminal
revision for enhancement of sentence under the Anti
Terrorism Act, therefore, Cr.R. No.104-P/2013
filed by the complainant, being not maintainable,
stands dismissed.
Note:
Copy of the judgment be provided to the convict through Superintendent concerned Jail by acknowledging receipt. Announced.
J U D G E
J U D G E
top related