AKRAM KHAN Versus STATE
This criminal appeal arises from a judgment of the Peshawar High Court, which upheld the conviction and sentences of the appellants for the murder of Badshah Gul. The appellants were initially tried for the murders of two individuals, but were acquitted regarding one victim. The conviction rested primarily on the dying declaration of the deceased, as the trial court disbelieved the prosecution's eye-witnesses. The core legal question was whether the conviction could be sustained solely on the dying declaration without sufficient corroboration, particularly when other evidence, such as forensic ballistics matching crime empties to specific weapons, was excluded by the High Court due to procedural omissions during the examination of the accused. The Supreme Court held that the omission to put specific questions regarding weapon recovery to the accused is not fatal where the accused is represented by counsel and aware of the evidence. Consequently, the Court maintained the convictions of appellants whose weapons matched the crime empties, while acquitting the remaining appellants due to a lack of corroborative evidence, granting them the benefit of the doubt.
- Is the failure to put specific questions regarding forensic evidence to an accused fatal to the prosecution's case when the accused is represented by counsel?
- Can a conviction for murder be sustained solely on a dying declaration when eye-witnesses have been disbelieved?
- Does the matching of crime empties with an accused's licensed weapon constitute sufficient corroboration to sustain a conviction?
- Section 544-A, Code of Criminal Procedure 1898
- Section 288, Code of Criminal Procedure 1898
S.A.NUSRAT, J.‑‑ The above appeal, by leave of this Court, is from the judgment of the Peshawar High Court whereby the conviction and sentences passed upon the appellants by the Sessions Judge, Kohat were upheld and their appeal was dismissed.
2. Akram Khan and his two younger brothers Anwar Khan and Muhammad Ali and their nephew Ajmal Khan were tried by the Sessions Judge, Kohat for the murders of Badshah Gul and Shahzad Gul, committed in furtherance of their common intention by firing at the two deceased on 30‑3‑1975 at 5.00 a.m. in Lachi village. They were, however, found guilty of the murder of Badshah Gul deceased alone and sentenced to imprisonment for life each and a fine of Rs.5,000 each, payable to the heirs of Badshah Gul as compensation under section 544‑A, Cr.P.C. In default, the appellants were ordered to suffer further six months' R.I. as per judgment of the trial Court dated 29‑6‑1977.
As respects Shahzad Gul, it was held by the learned trial Court that the prosecution case in relation to his murder was not proved beyond any reasonable doubt and they were accordingly acquitted of the said charge.
3. The prosecution case, as disclosed in the FIR lodged by Badshah Gul, was to the following effect:‑---
That at 5.00 a.m., he alongwith his 'Tarboor' Shahzad Gul were driving their camels for fetching 'Bajra' crops from a place known as "Sanda Khuram" When they reached near the graveyard of the village Akram Khan, Anwar Khan and Muhammad Ali appellants, sons of Habib and Ajmal Khan son of Janan, their co‑villagers, got up from the graveyard duly armed and started firing at them. With these shots, Badshah Gul was hit on the right hand, leg and left shoulder. But he was not sure whether Shahzad Gul was hit with these shots or not. He, however, ran away from the spot; that after the firing the four appellants decamped; that the occurrence was witnessed by Shahzad Gul. According to this report, enmity between Shahzad Gul and Muhammad Ali appellant .existed over a vacant site in the 'Shamilat' of the village and that a day prior to the occurrence the parties were challaned for security proceedings.
4. Dr. Muhammad Siraj, P.W.12 performed the autopsy on the dead body of Badshah Gul and found the following injuries on his person:‑
(1) One lacerated wound on the left forearm 3" x 2" in size.
(2) One incised wound .on the right cheek 2" x 1" in size.
(3) One lacerated wound on the right side of the chin 2" x 1" in size.
(4) One lacerated wound on the right parieto‑occipital region 'of head 3" x 1" in size.
(5) One lacerated wound on the upper part of right, side of neck 2" x 1" in size.
(6) One lacerated wound on the tip 'of chin 1" x 1" in size.
(7) One incised wound on the left side of chin 2" x 1/4" in size.
(8) One incised wound on the back of right hand 3" x 1/4" in size.
(9) Multiple abrasions on the left wrist and ‑elbow.
(10) Multiple abrasions on the front of left ankle and knee.
5. The prosecution produced Munawar Gul, Hazrat Gul ‑and `Nazar Gul P.Ws. as eye‑witnesses. Munawar Gul was declared hostile at the request of the prosecution and the statement recorded by the lower Court was transferred to the Sessions file under section 288 of the Cr.P.C. The witness was disbelieved by the trial Court. Hazrat Gul and Nazar Gul P.Ws. were also disbelieved. As a ‑result, the conviction of the appellants was based only on the report lodged by Badshah Gul deceased, whose statement was earlier recorded in injured condition at the police station and was treated as dying declaration. In the said statement, he had charged all the appellants for having fired at him.
On appeal, the learned High Court also accepted the statement of Badshah Gul deceased as true and genuine and the conviction awarded to the appellants was upheld.
6. The learned counsel for the appellants took us through the evidence on record and raised various contentions. According to him, in view of the fact that the evidence of three alleged eye‑witnesses produced by the prosecution was concurrently disbelieved in the case by the learned two Courts, the conviction of all the appellants merely on the basis of the statement of Badshah Gul deceased without sufficient corroboration was not warranted in, the interest of safe administration of justice in criminal cases, particularly on a capital charge. However, it appears from the record that three empties of, 12 bore gun were recovered from the spot under duly prepared and witnessed memos. and according to the report of the Arms Expert, two of the crime empties of 12 bore matched with the licenced gun of Akram Khan appellant while the third empty matched with the licenced gun of Ajmal Khan appellant. This part of the evidence was not, however, considered by the learned High Court on the ground that the prosecution had failed to put any question to the appellants with regard to the recoveries of the weapons. It has, however, been held by this Court in the case of Allah Dad and 2 others v. The State P L D 1978 S C l that where the accused is represented by a counsel and he was himself present and heard the entire evidence, any omission to put the question as to whether his gun matched with the crime empty was not fatal as he was at liberty to give an answer to that piece of evidence when he was questioned about the gun. Again, it was open to the counsel to have brought it to the notice of the trial Court that this piece of evidence was not put to the accused.
8. In the face of the evidence as discussed above, in so far as Akram Khan and Ajmal Khan appellants are concerned, there is corroborative evidence of the recoveries of the crime weapons and matching of the crime empties with their respective guns and hence we find no merit in their appeal, which is dismissed.
However, the case of Anwar Khan and Muhammad Ali appellants stands on different footing as no corroborative evidence has been found to exist against them and they are entitled to benefit of doubt. The appeal is partly accepted and the judgment of the learned High Court is set aside. They are acquitted and shall be released forthwith unless required in some other case.
M.Y.H./A‑265/S Appeal partly accepted
Cited by 1 case
- MUSHTAQ and 3 others vs THE STATE 1989 P Cr. L J 2336