JAHANZEB KHAN alias ZAIBI Versus State

QAZI MUHAMMAD AMIN AHMED, J.--- Babar Khan, 29, Ajab Khan, 28 and Tahir Hussain Khan, 29, hereinafter referred to as the deceased, were gunned down on 16-8-2004 at about 5:30 p.m. within the area of Adda Qutbal situating at a distance of 11-k.m. from Police Station Fateh Jang, District Attock; Jahangir and Sultan sustained firearm injuries, however, survived the assault. Tahir Hussain, deceased breathed his last at the spot while Babar Khan and Ajab Khan succumbed to their injuries on way to the hospital. Shafqat Ali, complainant (PW-22), Tahir Mehmood (PW-23) and Masood (PW-24) witnessed the occurrence, reported through written application Ex.PW, 6:30 p.m. straight at the police station. Motive for the crime is an altercation over pasting of posters of a PPP candidate between Tahir Hussain, etc. and Arshad Khan, Jahanzeb, etc. in the backdrop of an electoral campaign at Paishi Vela. The issue was temporarily settled, however, according to the prosecution, at about 5:30 p.m. Babar Khan, Ajab Khan and Tahir Hussain, deceased arrived at the scene in a white colour car bearing No.IDC/9753, shortly whereafter in a red car driven by Atif appellant, Jahanzeb Khan, Ali Khan and Zubair Mohajar, armed with Kalashnikov arrived there; Babar Khan and Ajab Khan, deceased, had already alighted from their vehicle when the appellants except Atif, after de-boarding their vehicle confronted them. After exhortation, Jahanzeb alias Zaibi appellant made a fire shot hitting Babar Khan deceased followed by Ali Khan on Ajab Khan deceased while Zubair Mohajar targeted Tahir Hussain deceased, who was still inside the car. Formal First Information Report Ex.PLL was recorded by Muhammad Bashir SI (PW-27) at 6:30 p.m. whereafter Riaz Hussain, Inspector (PW-26) took over the investigation and attended the dead and the injured in Civil Hospital Fateh Jang.

Dr. Asad Iqbal (PW-5) conducted autopsy on the dead body of Tahir Hussain at 8:00 p.m. and noted nine firearm injuries, exits inclusive, on different parts of the body, of them a lacerated wound 9.4 x 10 cm into cavity deep on the left side of forehead and a lacerated wound 1.5 x 1 cm on the right temporal region designated as injuries Nos.6 and 7 were opined as cause of death; time between injuries and death was immediate whereas between death and postmortem was estimated as within two hours. Dr. Muhammad Shoaib (PW-6) conducted autopsy at 11:15 p.m. on 16-8-2004 and on 17-8-2004 1:30 a.m. on the dead bodies of Ajab Khan and Babar Khan, deceased, respectively; the former was noted to have 12 firearm injuries on different parts of the body, exits inclusive. Injuries on right side of chest and back of left lumber region designated as injuries Nos.1 and 2 were opined as cause of death with estimated time between injuries and death as 10 to 15 minutes and death and postmortem as 2 to 10 hours; the latter had eight, firearm injuries on his person; injuries on left side of shoulder, left side of anterior aspect of chest, back of left lower chest, designated as injuries Nos.1, 2, 3 and 4 were blamed for the death with inter se time between injuries and death as 10 to 15 minutes and between death and postmortem as 2 to 10 hours. There is nothing on the record in respect of injuries allegedly sustained by Jahangir and Sultan nor did they opt to appear as a witness in the case, prosecuted through a private complainant. After recording statements of the eye-witnesses, Investigating Officer proceeded to the spot wherefrom he secured blood as well as six casings, made into parcels and taken into possession vide inventories. Jahanzeb and Ali Khan, appellants were arrested on 31-8-2004 followed by Atif appellant on 11-9-2004. Zubair Mohajar appellant was arrested on 9-9-2004; pursuant to a disclosure, he led to the recovery of a 7-mm gun on 12-9-2004. Jahanzeb alias Zaibi and Ali Khan, appellants came up with a plea of alibi before the Investigating Officer wherein they claimed that they were already in custody on 15-8-2004 in a criminal case registered vide FIR No.124 dated 15-8-2004 under Section 395 of the Pakistan Penal Code, 1860 with Police Station Jalalpur Jattan District Gujrat on the complaint of one Abdul Hameed; it is their case that they were remanded into police custody under physical remand on 16-8-2004 by an Area Magistrate, namely, Anjum Mumtaz wherefrom they were remitted into judicial custody on 23-8-2004 and ultimately released on bail on 28-8-2004; this plea found favour with the Investigating Officer, impelling the complainant to file a private complaint on 24-2-2005 wherein in addition to the accused nominated in complaint Ex.PW, the number of accused graduated to eight; they included Arshad Khan Muhammad Abdul Hameed, complainant in the case registered in Jalalpur Jattan District Gujrat, Muhammad Akbar SI/Investigating Officer in the said case and Anjum Mumtaz, Magistrate Section-30. It was alleged in the private complaint that the accused named in the crime report were closely related with Major Tahir Sadiq, the then District Nazim, Attock, brother-in-law (Behnoi) of Ch. Parveiz Ilahi, the then Chief Minister of the Punjab, who too was a relative in first degree of Ch. Shujaat Hussain, the former Prime Minister of Pakistan; the bottom-line of the position taken in the private complaint is that the accused with the help of above named persons created a fake and false plea of alibi involving lower rank functionaries of the State. The process was issued against all the accused and they were indicted on 6-3-2007 by a learned Addl. Sessions Judge at Islamabad as the case was transferred there on the request of complainant side. The accused contested the indictment and claimed trial, pursuant whereto, the prosecution produced 27 witnesses besides placing reliance upon forensic reports, of them Shafqat Ali (PW-22), Tahir Mehmood (PW-23) and Masood (PW-24) furnished ocular account, constituting the mainstay of complainant's case. The accused rallied behind a unanimous denial, reiterating the plea of alibi; their case in brief is that one day before the occurrence, they had been taken into custody in the criminal case referred to above and as such there was no occasion for their physical presence at the venue on the relevant day of occurrence, in support thereof, they relied upon copy of First Information Report No.124 dated 15-8-2004 (Ex.DZ), copy of report under section 173, Cr.P.C. (Ex.DY), memo of possession of car (Ex.DAA), memo of possession of 30-caliber pistol (Ex.DBB), memo of possession of 32-caliber revolver (Ex. DCC), applications for physical remand (Ex.DDD and Ex.DEE), copy of judicial remand (Ex.DFF). According to the alibi stop, Abdul Hameed complainant, a resident of Jalalpur Jattan District Gujrat had purchased a Suzuki Mehran Car bearing No.IDK/5075 from Jehanzeb Khan alias Zaibi, appellant for a consideration of Rs.250,000/- and paid earnest amount of Rs.100,000/- with Rs.150,000/- to be paid later on, through an oral sale transaction; according to Abdul Hameed, he somehow failed to clear the remaining amount and in this backdrop on 15-8-2004, both the accused named above intercepted him and snatched away the vehicle; consequently a case was registered at 5:40 pm at Police Station City Jalalpur Jattan. Muhammad Akbar SI, appellant herein, claimed to have arrested them with the snatched car on 15-8-2004; the car was taken into possession vide memo Ex.DAA; it is his case that after their arrest, the appellants were produced before Anjum Mumtaz, Area Magistrate on 16-8-2004 and remitted into custody for four days for interrogation and recovery of weapons; another remand of four days was taken on 20-8-2004 and it was during the course of this investigative process that Jahanzeb Khan alias Zaibi appellant led to the recovery of a 30-caliber pistol which he had concealed within the boundaries of a graveyard underneath a sissoo tree; same day Ali Khan appellant got recovered a 32-caliber revolver concealed by him in the bushes on the Kharian Road; they were lodged into judicial custody on 23-8-2004. This elaborate defence structured on official proceedings, however, did not find favour with the learned trial Judge, who proceeded to convict Jahanzeb Khan alias Zaibi, Ali Khan and Zubair Mohajar under section 302(b) of the Pakistan Penal Code, 1860 and sentenced them to death along with payment of compensation of Rs.100,000/- each or to undergo six months SI in the event of default; there is no reference to the counts; Atif appellant was convicted under section 302(b) of the Pakistan Penal Code, however, he was sentenced to imprisonment for life with benefit of section 382-B of the Code of Criminal Procedure, 1898; Muhammad Akbar SI stands convicted under sections 201 and 166 of the Code ibid and sentenced to 2-years' RI on each count; sentences to run concurrently; Arshad Khan, Muhammad Abdul Hameed Arshad and Anjum Mumtaz have been acquitted from the charge. Criminal Appeal No.268 of 2009 questions the vires of conviction and sentences awarded to Jahanzeb Khan alias Zaibi, Ali Khan, Zubair Mohajar and Atif, appellants, Crl. Appeal No.267 of 2009 has been filed by Muhammad Akbar SI whereas Petition for Special Leave to Appeal No.38 of 2014 seeks reversal of acquittal granted to Arshad Khan, acquitted co-accused; it is accompanied by a Criminal Revision No.162 of 2009 praying for enhancement of sentence and compensation; confirmation of death penalty is being prayed for vide Murder Reference No.318/RWP of 2009; these are being decided by this single judgment.

2. Learned counsel for the appellants contend that Jahanzeb Khan alias Zaibi and Ali Khan confronted the charge with an immaculate plea of alibi founded on official documents accompanying a presumption of genuineness; according to him, record of judicial proceedings conclusively established presence of both the appellants in police custody at the relevant time and the same cannot be brushed aside. It has been added by the learned counsel that this plea of alibi was thoroughly investigated and found factually correct by Riaz Hussain, Inspector, examined as PW-26; that only six casings secured from the spot belie the story set up in the First Information Report; this according to the learned counsel runs counter to medical evidence as well; that two injured witnesses have not been produced by the complainant and this heavily reflects both upon the veracity of the prosecution case as well as the credibility of the witnesses who given their inter se relationship with the each deceased would not have been spared by the assailants in the stated backdrop. The bottom-line is that the so-called eye-witnesses were not present at the spot and as such had no occasion to witness the occurrence. Learned counsel for Muhammad Akbar SI contends that his case is at par with Anjum Mumtaz, Magistrate and as such the learned trial Judge ran into error in returning a guilty verdict to him; that in the wake of acquittal of Abdul Hameed, appellant's position stood vindicated and that investigative steps taken by him in the said case are in conformity with the procedure provided under the law. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment. Learned counsel for the complainant contends that it is a classic case of abuse of authority and that through the gimmickry adopted by the appellants, the ocular account could not have been overridden which according to him is in line with medical evidence. It has been-argued that in the background of national elections, the deceased were pitted against the appellants and in view of this motive, they were done to death in cold blood; that number of injuries sustained by the each deceased confirm use of automatic weapons; that non-production of two injured does not adversely effect the prosecution case otherwise firmly entrenched on ocular account. While arguing Petition for Special Leave to Appeal, the learned counsel argued that Mumtaz Anjum was not protected by an immunity as his conduct fell outside his official functioning as a Magistrate and thus he was liable to be treated as an ordinary criminal.

3. Heard. Record perused.

4. The fate of this case is hinged upon the plea of alibi, raised by Jahanzeb alias Zaibi and Ali Khan, appellants and accepted by the Investigating Officer. Occurrence took place at Adda Qutbal within the jurisdiction of Police Station Fateh Jang District Attock at 5:30 p.m. on the 16th of August, 2004; they claimed to have been already in custody in the evening, preceding the day of occurrence at Police Station City Jalalpur Jattan District Gujrat, a place located at a distance of about 200-k.m. away and in support thereof, there is a First Information Report registered at a point of time earlier to the incident at Qutbal, owned by its complainant, a resident of Jalapur Jattan City; there are judicial orders regulating their custody; disclosures and weapons recovered pursuant thereto, their subsequent remission into judicial custody and release therefrom. At first sight, the script is impressive. However, when examined in juxtaposition with the stand taken by the complainant and evidence led in support thereof, a different picture emerges. Political divide inter-se the parties and relationship of a Prime Minister, a Chief Minister and a District Nazim with the appellants' side is not seriously contested, however, notwithstanding the stated positions, no inference can be hypothesized adverse to these office bearers on a perceptional paradigm in the absence of positive proof, establishing a nexus of culpability to forge a fake plea of alibi authenticated by official acts; it at the most makes out a case to examine the plea of alibi, as a "factual position" asserted by an accused with an added caution and care for its evaluation within the parameters of the law declared in the case of Malik Mumtaz Hussain Qadri v. The State (PLD 2016 Supreme Court 17). Examined on that touchstone, it is an admitted position that sale of Suzuki Car by Jahanzeb Khan alias Zaibi appellant to Abdul Hameed is not a documented transaction; there is nothing on the record to even obliquely suggest that Jahanzeb Khan alias Zaibi appellant owned the said vehicle in the first place; the alleged sale of a Suzuki make vehicle, sound as a dollar in terms of its re-sale value and marketability at a place as far away as Jalalpur Jattan is mind boggling; it could have been sold out next door, possibly in lieu of full payment. Promptitude by Jalalpur Jattan police in registration of a case of robbery at 5:40 p.m. through information not laid at the police station, immediate arrest of the accused and simultaneous recovery of vehicle reflects a performance inconsistent with the usual responses in identical situations; receipt of physical remand despite arrest of both the appellants and seizure of vehicle for the recovery of weapons, merely brandished in the alleged occurrence, runs counter to the whole hypothesis, for more than one reason; it was not really required; the appellants did not contest the generous grant of remand on two occasions; their immediate release on bail without any opposition by the complainant or the State in a case of highway robbery on 28-8-2004 by the same Magistrate does not fit within the ambit of usual practice. Neither claimants to alibi nor Abdul Hameed opted to be their own witnesses within the contemplation of section 340(2) of the Code of Criminal Procedure, 1898; they were the best witnesses to establish their plea. If this part of "factual position" raised by Jahanzeb alias Zaibi and Ali Khan appellants is excluded from consideration, the entire edifice of alibi is raised to the ground and it can be unreservedly discarded on the ground that in the event of their arrest with the snatched vehicle shortly after the alleged occurrence, they must have been apprehended with their weapons as there was no earthly reason for them to conceal the weapons at two different places through elaborate and separate exercises within the limits of the police station; natural course available to them was to rush back to their native district where, admittedly, they wielded considerable political clout and this aspect of the asserted factual position falls far outside the pale of reality and truth being devoid of probability. Similarly, the argument that various official acts, referred to above, in support of plea of alibi being acts within the contemplation of Article 129(e) of the Qanun-e-Shahadat Order, 1984 are to be deemed to have been genuinely done is beside the mark. No doubt, the Court may draw a presumption of genuineness about official acts, however, this statutory presumption like any other presumption, too is rebuttable, particularly when genuineness thereof is disputed by a party likely to be effected adversely; a presumption cannot be equated with proof and in order to qualify or substantiate a plea of alibi for the purposes of Article 24 of the Order ibid, a claimant of alibi is required to discharge the onus cast upon him under Article 119 of the Order ibid, for the convenience of reference, reproduced below:-

"Burden of proof as to particular fact . The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

Illustrations

(a) A prosecutes b for theft, and wishes the Court to believe that B admitted the theft, to C, A must prove the admission.

(b) B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it."

Documents relied upon by Jahanzeb alias Zaibi and Ali Khan appellants in the wake of their failure by themselves do not override the ocular account inexorably focused upon them, as these do not establish the identity of the accused ostensibly produced before the Magistrate on 16-4-2008. Although no adverse inference is to be drawn against an accused upon his failure to enter the witness box in disproof of a charge against him, nonetheless, in the given circumstances of the case, Jehanzeb alias Zaibi and Ali Khan, appellants were the best witnesses to establish the genesis of factual position asserted by them, particularly when hypothesis of, holding in abeyance of the entries in the relevant registers and antedated incorporation thereof at the police stations can be entertained without much reservation. The learned trial Judge rightly rejected the plea of alibi as both these appellants failed to qualify the factual position asserted by them and this brings them back along with Zubair Mohajar, face to face with the deceased as well as the witnesses. Admittedly, they are rivals to each other in their political pursuits; each of them is attributed fatal shots to the three deceased; medical evidence confirms death by firearm injuries, durations whereof, coincide with the time estimated in the autopsy reports. Receipt of injuries by two others is confirmatory to the incident; their non-appearance as witnesses epitomizes social apathy and failure towards our civic responsibilities; this happens almost in every case. Therefore, we do not feel any hesitation in maintaining the convictions of Jahanzeb Khan alias Zaibi, Ali Khan and Zubair Mohajar, appellants. However, on the question of sentence, according to the prosecution, each appellant independently targeted the deceased one by one. Learned trial Judge has not specified the number of counts, he returned the guilty verdict; this part of the judgment has not been challenged by the complainant side. Prosecution has attempted to spread over the occurrence on two episodes, however, argument that a sudden incident ignited the situation reflects a possible scenario. Recovery from Zubair Mohajar appellant is inconsequential whereas in view of acceptance of plea of alibi, there was no occasion for the Investigating Officer to effect any recovery from Jahanzeb Khan alias Zaibi and Ali Khan. These various factors cumulatively make out a case to visit the appellants with the alternate penalty of imprisonment for life which in our view, in the facts and circumstances of the case, would meet the ends of justice. Consequently, penalty of death is altered into imprisonment for life with benefit of section 382-B of the Code of Criminal Procedure, 1898. Amounts of compensation and consequences in the event of default are kept intact. Criminal Appeal No.268 of 2009 to the extent of Jehanzeb Khan alias Zaibi, Ali Khan and Zubair Mohajar, appellants is dismissed and Murder Reference No.318 of 2009 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.

However, the case of Atif appellant is at different footing; he is a driver in the service of his master; there is no positive proof that he had any conscience knowledge about the intended purpose of visit to the spot nor there is any evidence to bring him in the community of intention with his co-accused; being a staffer, he had no political motives or ambitions and as such his culpability in the crime is not free from doubt, therefore, it would be unsafe to maintain his conviction. Consequently, by extending to him benefit of the doubt, he is acquitted from the charge and shall be released forthwith, if not required in any other case. Criminal Appeal No.268 of 2009 to his extent is allowed.

Muhammad Akbar SI, appellant is architect of the fake plea of alibi; he has betrayed the trust reposed in him by the law and thus rightly convicted by the learned trial Court; Crl. Appeal No.267 of 2009 fails; he is on bail and shall be taken into custody to serve remaining portion of his sentence. Acquittal of Anjum Mumtaz, Magistrate, Abdul Hameed and Arshad Khan, respondents reflects a possible view, therefore, does not call for interference; once a person is acquitted from a criminal charge by a competent Court, exceptionally strong grounds are required to recall freedom. The plea raised by Anjum Mumtaz that he granted physical remand on the basis of identification of the accused in the said case on the assertion of Muhammad Akbar SI cannot be possibly rejected, however, he appears to have acted without due diligence, expected from a Judicial Officer, albeit unsuspectingly. Crl. P.S.L.A. No.38 of 2014 is dismissed.

As a natural corollary, Crl. Revision No.162 of 2009 stands dismissed.

WA/J-3/L Order accordingly.