SAEED KHAN and 5 others vs THE STATE and another

' ZIA PERWEZ, J.---This appeal by leave of Court is directed against the judgment of a learned Division Bench of Peshawar High Court, Peshawar, dated 17-2-2005, whereby, Criminal Appeal No,644 of 2003 filed by the appellants was dismissed maintaining their convictions under sections 302/148, P.P.C. And sentences of imprisonment for life with a fine of Rs,1,00,000 with benefit of section 382-B, Cr.P.C. Awarded by the learned Sessions Judge, Mardan through judgment, dated 4- 9-2003.

2. On 15-8-1978, complainant Sherin lodged report at Police Station Nawagai, Bunir through F.I.R.

No,42 under sections 302/148/ 149, P.P.C. That at about 1-15 p.m. He along with his sons Pashmeen, Malik Ashtar and his brother Rekhmeen was present in the mosque to offer "Zuhar" prayer, when co-villagers appellants/accused Abdul Jalil, Bakht-e-Namroz, Noubat Khan, Abdul Akbar and Saeed Khan, all armed with shotguns, entered the mosque and started firing. Accused Abdul Jalil, Bakht-e-Namroz and Noubat Khan fired at Malik Ashtar, he was hit and died on the spot. Accused Abdul Akbar and Saeed Khan fired at Rekhmeen, which hit him and he died on the spot, whereas accused Akbar Khan, Amin Khan and Faizul Akbar fired at Pashtmeen, who was outside the mosque, which hit him and he succumbed to the injuries. The incident was witnessed by Hammed Shah, Munawar Shah, Mian Jalal, Tajmeen, Rokhan and Said Meen. The motive of the crime was disclosed as previous old enmity between the parties.

3. Accused Noubat Khan and Abdul Akbar died during the trial. The learned trial Court framed charge against the appellants to which they pleaded not guilty. Prosecution examined six witnesses namely, Dr. Mukhtiar (P.W.1), he conducted the post-mortem of the deceased persons and exhibited his reports as Exh.P.W.1/1 to Exh.P.W.1/3. According to him the cause of death of the deceased persons was due to the respective injuries, which led to the haemorrhage and shock, Taj Meen (P.W.2), Said Meen (P.W.3), Mian Jalal (P.W.4) were eyewitnesses of occurrence, Muqadar Shah, Inspector (P.W.5) and Abdul Shakoor, D.S.P. (P.W.6), the Investigation Officers of the case. The appellants were also examined under section 342, Cr.P.C., however, they did not examine themselves under section 340(2), Cr.P.C. Nor produced any witness in defence. The learned trial Court convicted appellants Saeed Khan, Abdul Jalil, Akbar Khan, Bakhti Namroz, Amin Khan and Faizul Akbar and sentenced them as mentioned above. Appeal before the learned High Court, was dismissed vide the impugned judgment maintaining the convictions and sentences.

4. Vide order, dated 25-5-2006, leave to appeal was granted by this Court to reappraise the entire evidence for safe administration of criminal justice.

5. Mr. Asadullah Khan Chamkani, learned Advocate Supreme Court appearing for the appellants argued that there is conflict between the medical and ocular evidence, which casts doubt on the prosecution case. Learned counsel contended that there is an inordinate delay of five hours in lodging the F.I.R., whereas the distance between the place of occurrence and the police station was hardly 2/3 miles. He further contended that the learned High Court and the learned trial Court have misread and misappraised the evidence for awarding the conviction and sentence to the appellants. Accordinf; to the learned counsel the prosecution has given up the trustworthy and independent witnesses and produced interested and dependent witnesses. He also argued that there are material contradictions in the evidence which were not scrutinized by the learned High Court in its true perspective. He further contended that under the circumstances the appellants be acquitted by giving benefit of doubt.

' Mr. Abdul Samad khan, learned Advocate Supreme Court for the complainant has vehemently opposed the contentions of the learned counsel for the appellants. He argued that the occurrence took place in the broad-daylight and all the accused persons ascribed specific role of firing.

According to the learned counsel minor discrepancies and contradictions in the statements of the eyewitnesses were not worth-considering and there was no justification for awarding the lesser sentence imprisonment for life to the appellants. He contended that the learned trial Court and the learned High Court have already taken a lenient view by awarding life imprisonment though the accused were promptly nominated in the F.I.R. As well as in the evidence of eye-witnesses, therefore, all the appellants should be sentenced to death.

' Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court appearing for the State supported the arguments advanced by the learned counsel for the complainant.

6. We have heard the learned counsel for the parties and perused the record.

7. The occurrence took place on 15-8-1978 at 1-15 p.m. And the F.I.R. Was lodged at 6-00 p.m. With explanation on the same day thus, the F.I.R. Was lodged promptly, therefore, chance of deliberation and consultation with others to wrongly involve the appellants is excluded. The detail of the occurrence has been elaborately explained in the. F.I.R. The charge has been proved by ocular evidence duly supported by the medical evidence and involvement of the appellants is duly spelt out in the statements of P.Ws. Taj Meen, Said Meen and Mian Jalal along with the recoveries of pallets. It is prerogative of prosecution to produce evidence as may be necessary, to prove the charge and may give up the witnesses after sufficient evidence is brought on record. No inference can be drawn about the testimony of the remaining witnesses. In case the defence relies on the fact that they do not support the case of prosecution they can always be examined in defence. No adverse presumption is to be drawn in the absence of any positive evidence as held by this Court in the case of Mazhar Ali v. The State 2005 SCM R 523. It is A daylight incident and the witnesses were natural witnesses. The learned trial Court while deciding the case relied upon the case-law i.e, Allah Dad and another v. The State 1995 SCM R 142 in which it was held "Trial Court had found the accused guilty on the basis of evidence on record---High Court after minute reappraisal of evidence had upheld the conviction---No misreading of evidence had been pointed out---Further reappraisal of evidence being not the function of Supreme Court, convictions of accused were maintained". Under the circumstances, there is no misreading, non-reading or misappraisal of evidence by the learned Courts below. We do not find any illegality or irregularity calling any interference in the view taken by the learned two Courts below.

8. For the foregoing reasons, this appeal being devoid of any merits is dismissed.