Criminal Appeals Writ Petitions

486 Pages·2011·3.93 MB·English

Criminal Appeals

Writ Petitions

VOLUME-II

Pages 412-896

Peshawar High Court
412
Farzand Ali --- Petitioner

Versus
The State --- Respondents
JUDGMENT

J.Cr. A No.18 of 1998 Date of hearing 20/03/2001
(2001 Cr.L.J 704) and
21/03/2001

EJAZ AFZAL KHAN, J.- On 11.3.1990 at 10 a.m.
while patrolling in their official vehicle, the deceased Ghulam
Muhammad Khan, S.H.O. Police Station Shahbaz Gari alongwith
Javed Khan, Muhammad Younas and Sher Ali constables stopped
the vehicle near the fields of Shahi Kapura. No sooner did they
alight from the vehicle than they saw two persons going towards
the south, one of whom was armed with a Topak. When the S.H.O.
asked them to stop,, the one who was armed with a Topak fired at
him which, however, went amiss. He then directed his constables
to fire at the aforesaid persons but in vain. At last, after getting the
rifle of Javed Khan P.W.16, the S.H.O. himself set out to
apprehend the persons but in that tug of war, on being fired at by
the armed person got hit, fell on the ground and eventually
succumbed to his injuries. The assailants despite desperate chase
could not be traced down. On the report of Javed Khan P.W. a case
under sections 302/307/353/34, PPC was registered vide FIR
No.164, dated 11.3.1990 in the Police Station Shahbaz Gari against
unknown persons who could be identified on their being sighted.
2. During the course of investigation it transpired that Isteraj
acquitted co-accused and Farzand Ali, a deserter from the Army,
appellant herein, were the persons responsible for the whole affair
resulting in the death of the deceased. The former on being tried by
the learned Addl: Sessions Judge was acquitted under section 265-
K Cr.P.C. as no role was assigned to him while the latter being
already absconder was declared proclaimed offender and perpetual
warrants of arrest were directed to be issued against him vide order
Peshawar High Court
413
dated 18.3.1993. On being arrested from a Jail in Karachi and
interrogated during the course of investigation, the appellant
allegedly made a confessional statement. On the completion of the
investigation he was forwarded to the Court of the learned Sessions
Judge for trial. On being charged when he pleaded not guilty, the
prosecution examined as many as 18 witnesses to prove its case
against the appellant.
3. P.W.1 performed the post-mortem examination on the
dead-body of the deceased and found the following:--
External Examination:
(1) Fire-arm entry wound 1/3” x ½” in diameter 4”
below the left elbow on the dorsal aspect.
(2) F.A. lacerated wound probably exit wound 4” x 4”
in diameter with protrusion of muscular and fatty,
tissue with fracture of radius and ulna and lower
end of humorous (left side).
(3) F.A./entry wound (left side) front of neck below
mandible.
Internal Examination:
Thorax Larynx and trachea and blood vessels were found
injured.
Abdomen Pharynx and oescophagus injured, stomach
contained semi-digested food.
In his opinion, cause of death was shock produced by
haemorrhage and axphexia due to fire-arm injury to
trachea, larynx and major survical vessels. Probable time
between injury and death was ten to twenty minutes while
between death and P.M. within two hours. Shirt and Jercy
bearing marks of Fire-Arm belonging to the deceased
alongwith P.M. report were handed over to local police.”

P.W.2 identified the dead-body at the time of the post-mortem
examination. P.W.3 being a marginal witness, testified to the
correctness of recovery memos. Ex.P.C., Ex.P.C./1, Ex.P.C./2,
Ex.P.C./3 and Ex.P.C./4 whereby the blood-stained earth, one
empty of 7 MM rifle Ex.P-1 from the spot, 13 empties of 7.62 bore
Ex.P-2 from the place of Younas Khan, F.C. one shirt Ex.P-3,
Jercy Ex.P-4, shoulders Ex.P-5 and name-plate Ex.P-6 belonging
Peshawar High Court
414
to the deceased produced by Maqsood Ali, F.C. and deserter roll of
the appellant produced by Mir Akber Shah, Moharrir were taken
into possession by the Investigating Officer and sealed into
different parcels. P.W.4 escorted the dead-body from Surgical
Ward D.H.Q. Hospital Mardan to mortuary and after the post-
mortem examination, its report alongwith the blood-stained
garments handed over to the Investigating Officer. P.W.5 furnished
circumstantial evidence by deposing that on the day of occurrence
Farzand Ali came to his shop for dressing as he was having an
injury on his leg which he refused to dress because, he sustained
that in an encounter with the police. P.W. 6 partially investigated
the case. PW-7 recorded the confessional statements of the
appellant Ex.PZ, testified to its correctness and that of the
questionnaire Ex.PZ/1 and the Certificate Ex.PZ/2. PW 8 prepared
injury sheet Ex.P.M./2 and inquest report Ex.PM/3. PW-9 on
receipt of murasila incorporated the same into FIR Ex.PA PW-10
is a witness to memo. Ex.PW/10/1 whereby the appellant, in his
presence, pointed out the places of the scene of occurrence. PW-11
recorded the statement of the P.Ws. under section 161, Cr.P.C.
P.W. 12 arrested the appellant and shifted him to Mardan after
observing the requisite formalities. PW-13 partially investigated
the case and took into possession one 7 Mmrifle alongwith its
licence from Ghulam Haider a maternal uncle of the appellant vide
memo: Ex.PW 13/1. PW 14 medically examined the appellant and
found the following:-

“1. A wound ¼ x ¼ inch in diameter. The wound was healed and
was present on the right calf. The injury was simple in nature and
the kind of weapon was not given because the wound was healed.
Similarly probable duration between injury and examination could
not be given for the same reason in the medico-legal report
Ex.PN.”

PW-15 witnessed the recovery of 7 MM rifle bearing
No.4174 Ex.P-7 alongwith its licence vide recovery memo>
Ex.PW 13/1, prepared the site-plan Ex.P.B./1, recorded police
statements of the marginal witnesses, moved an application Ex.PW
15/1, for recording their magisterial statements, vide application
Peshawar High Court
415
Ex.PW 15/2, obtained order from Illaqa Magistrate vide
application. Ex.PW 15/3 for sending the empties to the ballistic
expert, sent the same as well as rifle thereto vide application
Ex.PW 15/4 and on receipt of his report Ex.PW 15/5 placed it on
file. He also testified to the correctness of the injury sheet
Ex.P.N./1 whereby the appellant was sent to the Hospital for
medical examination. PW-16 furnished ocular account of the
incident, testified to the correctness of murasila Ex.PA. PW-17
also furnished ocular account of the incident. PW-18 investigated
the whole case, took into possession the articles mentioned above,
sent the empties to the Arms Expert vide application Ex.PW 18/1,
blood stained uniform and blood-stained earth to the Serologist for
analysis vide application Ex.PW 18/2 on receipt of his report
placed it on the file which is Ex.PW 18/3 and applied for warrants
under section 204, Cr.P.C. and proclamation notice under section
87, Cr.P.C. vide application Ex.PW 18/4 and Ex.PW 18/5.

4. On the close of the prosecution evidence, the appellant was
examined under section 342, Cr.P.C. who pleaded innocence and
denied his involvement in the commission of the crime.

5. On the completion of the trial, the learned Sessions Judge
sentenced the appellant to imprisonment for life with a fine of
Rs.50,000/- or in default to undergo one month’s R.I. under section
302, PPC. 3 years R.I. with a fine of Rs.5000/- or in default to
undergo 6 months R.I. under section 307, PPC and 2 years R.I.
with a fine of Rs.5000/- or in default to undergo 6 months’ R.I.
under section 353, PPC with the benefit of section 382-B, Cr.P.C.
vide judgment dated 4.9.1996.

6. On being aggrieved by the judgment of the learned
Sessions Judge, the appellant filed this appeal.

7. The learned counsel for the appellant contended that the
evidence furnished by the eye-witnesses of the incident does not by
any means point to the involvement of the appellant n the crime as
neither he has been named nor description of his features and
characteristics has been given in the FIR. He next contended that
Peshawar High Court
416
though it has been mentioned in the FIR that the assailant could be
identified on his being sighted yet no identification parade was
held to identify the assailant. While referring to the evidence of
Nadir Khan, he contended that his evidence too, does not point to
the conclusion that he was responsible for the casualty as it is not
the case of the prosecution that the appellant sustained any injury
during the course of the alleged encounter. He further contended
that the only evidence which can connect the appellant with the
crime is the confessional statement of the appellant but that also
cannot be relied upon in a case involving capital punishment,
firstly because it runs counter to the ocular testimony and secondly
because extraction of confessional statement in a case of police
encounter is a matter of common occurrence. He by summoning up
his arguments contended that questions which are essential rather
imperative to ensure the voluntariness of a confessional statement
have not been put to the appellant, therefore, its voluntariness is
not above-board.

8. The learned counsel for the State contended that the
circumstantial evidence coupled with the confessional statement of
the appellant is sufficient to bring guilt home to the appellant,
moreso when there is a prolonged noticeable abscondence to his
discredit and that the Trial Court in view of this evidence has
rightly recorded the conviction of the appellant which deserves no
interference.

9. We have given anxious thought and consideration to the
arguments of the learned counsel for the parties and have perused
the record with their able assistance. As far as the ocular testimony
is concerned that does not give any cue or clue as to the
involvement of the appellant in the commission of the crime, that
is why it has been discarded by the Trial Court and rightly so.
Moreover, the absence of description regarding the features of the
appellant in the FIR and the absence of identification parade are
the factors which would seriously damage the probative worth of
the ocular evidence if it has any. Similarly the circumstantial
evidence furnished by PW Nadir Khan is not of the type which can
be held compatible with the guilt of the appellant or incapable of
Peshawar High Court
417
explanation on any other reasonable hypothesis except his guilt.
The only important evidence connecting the appellant with the
crime which can be considered for a while is the confessional
statement of the appellant. Before we consider its evidentiary
value, it is worth-while to examine whether it was true, voluntarily
made, legally recorded and fits in with the surrounding
circumstances? A perusal of the record would show that the
questions whether he would make confession or not he would not
be sent back to the police custody: whether he was subjected to any
inducement, threat or promise and for how long he remained in
police custody, which are essential to ascertain the voluntary
character of a confessional statement have not been asked. Besides
this, there is nothing on the record to show that the Magistrate
recording the confessional statement disclosed his identity as a
Magistrate. The statement in the confession that he made a mistake
and that he be pardoned shows that it was recorded without
removing the impression caused by any inducement, threat or
promise which is a mandatory requirement of Article-41 of Qanun-
e-Shahadat Order. Similarly the statement that the appellant was
fired at first and injured by the police party and that he in a state of
panic retaliated negates the prosecution version because it has
never been a case of the Prosecution that the appellant was fired at
first and injured by the police party. We, therefore, hold that the
confessional statement of the appellant was neither true, nor
voluntary, nor legally recorded nor it fits in with the attending
circumstances of the case. Similarly the recovery of empties from
the spot on the day of occurrence an 7 MM rifle from the maternal
uncle of the appellant after the lapse of three years and their
belated dispatch to the Ballistic Expert would not prove anything
against the appellant. The statement of PW Javed Khan that the
appellant after firing at the deceased sought refuge in a nearby
house by scalling over its wall and he by immediately following
him in the house could not find him there inspite of the fact that it
has no exit is nothing but a cock and bull story which further
makes the whole version highly doubtful and unworthy of any
credence. The argument of the learned State counsel that there is a
prolonged noticeable abscondence to the discredit of the appellant
will not per se prove the case of the prosecution because
Peshawar High Court
418
abscondence at the most can be taken as corroborative of the
charge and not the evidence of the charge.

10. As a sequel to what has been discussed above, we accept
this appeal, set aside the impugned conviction recorded and
sentence imposed by the learned Sessions Judge Mardan dated
4.9.1996 and the appellant Farzand Ali is acquitted of the charge
under section 302/34 PPC. He is directed to be released forthwith,
if not required in any other cause.

Acquittal Ordered.
Peshawar High Court
419
Subhanullah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
J.Cr. A. No. 63/2004 Date of hearing 25.11.2004

EJAZ AFZAL KHAN J.- Petitioner Subhanullah was
tried on the charge under section 9-C, CNSA by the learned Judge
Special Court and was thus sentenced to 8 years R.I. with a fine of
Rs.one lac, or in default to undergo six months S.I. vide judgment
dated 9.6.2003.

2. On appeal before this Court, the conviction
recorded by the learned trial Court was maintained but in the
peculiar circumstances of the case, the sentence was reduced from
eight years to five years and that of fine from Rs.one lac to fifty
thousands, or in default to undergo six months S.I. vide judgment
dated 11.9.2003. The petitioner instead of filing a petition for
Leave to Appeal in the Honorable Supreme Court of Pakistan has
once again invoked the revisional jurisdiction of this Court under
section 439 Cr.P.C.

3. As after deciding the appeal as mentioned above
this Court has become functus officio, no proceeding by way of
revision can be entertained therefore, this petition being
incompetent is dismissed.

Announced on: CHIEF JUSTICE
25.11.2004
J U D G E
Peshawar High Court
420
AMBAR SHAH---Appellant
Versus
THE STATE---Respondent
JUDGMENT
J.Cr.A No.112/2005 Decided on 11.04.2005
(2005 Y L R 2346 Peshawar)
Control of Narcotic Substances Act (XXV of 1997)---
Ejaz Afzal Khan, J ----S. 9---Appreciation of evidence---
All witnesses consistently deposed that accused was apprehended
on the spot pursuant to a raid and that Charas weighing 2016 grams
was recovered from a shopping bag held by him in his right hand--
-Samples taken from the suspected substance were sent to Forensic
Science Laboratory which were found to contain Charas---Charge
against accused, in circumstances stood proved beyond any
shadow of doubt---Finding of conviction recorded by Trial Court
against accused could not be interfered with, in circumstances, but
since quantum of sentence had to be proportionate to the quantum
of substance recovered, maintaining conviction of accused,
sentence awarded to him by Trial Court was reduced from 7 years
R.I. to 2 years R.I and fine from Rs.1, 00,000 to Rs.10, 000
accordingly.
Aftab Khan for Appellant.
Akhtar Naveed Khan Dy. Advocate-General for the State.
Date of hearing: 11th April, 2005.

JUDGMENT

Peshawar High Court