WALI NAWAZ KHAN Versus State
ASJAD JAVAID GHURAL, J. ---Through this criminal appeal in terms of section 410, Cr.P.C. appellant Wali Nawaz Khan has challenged the vires of judgment dated 31.05.2010 passed by the learned Addl. Sessions Judge, Gojra in case FIR No.416, dated 06.08.2007, in respect of offences under sections 302, 148 and 149, P.P.C., registered at Police Station, City Gojra, District Toba Tek Singh, whereby he was convicted and sentenced as under:-
Under section 302(b)/34, P.P.C.
Rigorous imprisonment for life and to pay Rs.3,00,000/- as compensation to the legal heirs of deceased Habib Khan under section 544-A, Cr.P.C.
He was held entitled to the benefit of section-382-B, Cr.P.C.
2. Complainant Mst. Saima Khan has preferred Criminal Revision No.690 of 2010 seeking enhancement of sentence of appellant/respondent No.3, which shall be decided through this common judgment.
3. The prosecution story unfolded in crime report (Ex.PG/1) registered on the complaint of Mst. Saima Khan (PW-8) is that she was permanent resident of Chak Eid, Tehsil Noshehra Virkan, District Gujranwala having temporary residence at Katcha Gojra. On 06.08.2007 at about 5:30 p.m. she along with her husband Habib Khan (deceased) was going to attend Khatam Sharif of wife of their relative Shahid Khan and when they reached at the corner of the house of Rana Faqir Muhammad, at Chowk Katcha Gojra, all of a sudden Wali Nawaz Khan (appellant) and Yasir Khan both armed with Kalashnikovs along with three unknown accused armed with pistols, de-boarded from a white Toyota Corolla, 2-D Car. Wali Nawaz Khan made a fire shot with his Kalashnikov, which landed at the left and right thigh from the front side of Habib Khan. Yasir Khan (since P.O.) made a fire shot with his Kalashnikov, which landed at the right side of chest of Habib Khan, whereas, the fire shot made by the unknown accused hit at his right shoulder, left wrist and buttock. Arif Khan, Rizwan Khan and Irfan Khan also witnessed the occurrence. All the accused fled away from the spot on their car. Habib Khan succumbed to the injuries at the spot.
Motive behind the occurrence was that accused Wali Nawaz etc. had criminal litigation with tenants of the deceased and he got lodged a crime report against the accused in which they were proclaimed offenders. They also used to make the demand of share from the deceased's purchased landed property measuring 28-acres situated at Chak Ayya Tehsil Noshehra Virkan, due to which the deceased along with his family in fear of death, left their house and temporarily rehabilitated at Gojra.
4. Mushtaq Ahmad, SI (PW-9) visited the place of occurrence on the same day, prepared injury statement, inquest report of the deceased and escorted his dead body to the mortuary. He took other steps of investigation and recorded the statements of witnesses under section 161, Cr.P.C. On 26.10.2007, he arrested be appellant, who afterwards made a disclosure and led to recovery of a Kalashnikov (P-2). After completion of investigation, he got prepared report under section 173, Cr.P.C.
5. Dr. Muhammad Aslam (PW-1) held autopsy on the dead body of deceased Habib Ahmad Khan on 07.08.2007 at about 01:30 a.m. and observed twelve fire arm injuries including six exit wounds and an abraded red swelling at right side of forehead. The cause of death was hemorrhage and shock inflicted by fire arm injuries Nos. 2 to 13 individually, as well as collectively, except injuries Nos.1, 6 and 7, which were sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was immediate whereas death and postmortem examination it was 08-hours.
6. At the commencement of the trial, trial Court framed a charge against the appellant and his co-accused Yasir Khan to which they pleaded not guilty and claimed to be tried. During trial, co-accused Yasir Khan succeeded to flee away from judicial custody and he was declared proclaimed offender vide order dated 04.12.2009.
7. The prosecution produced 09-witnesses besides the reports of Chemical Examiner (Exh.PM), report of Serologist (Exh.PN) and that of the Punjab Forensic Science Agency (Exh.PO). The appellant in his statement recorded under section 342, Cr.P.C., denied and controverted all the allegations of fact levelled against him. He did not opt to make statement under section 340(2), Cr.P.C., however, he produced certain documents Exh.DF to Exh.DK/1 in his defence.
8. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellant, as stated above vide impugned judgment dated 31.05.2010. Hence, this criminal appeal as well as the connected revision petition.
9. Learned counsel for the appellant submits that the appellant is quite innocent and he was falsely implicated in this case; that the ocular account furnished by the complainant/widow of the deceased remained uncorroborated from any other independent source of evidence and her sole testimony, being closely related and highly interested witness, cannot be made basis to maintain the conviction of the appellant; that the claimed eye-witness made dishonest improvements before the trial court qua the role of the appellant for causing fire arm injury to the deceased; that the ocular account is in conflict with the medical evidence; that the motive as set up by the prosecution has not been proved; that the recovery of weapon of offence from the appellant remained inconsequential; that the prosecution has failed to bring home guilt of the appellant beyond shadow of reasonable doubt. In the end, she has prayed for acquittal of the appellant from the charge.
10. Conversely, learned Deputy Prosecutor General appearing for the State has emphatically argued that it was a broad day light occurrence, which took place at a thoroughfare surrounded by residential houses; that the appellant is named in the promptly lodged crime report with the specific role of causing fire arm injuries to the deceased, which rules out the possibility of deliberation and consultation prior to the registration of case; that presence of the complainant at the venue of occurrence has not been disputed rather the appellant admitted the same in his statement under section 342, Cr.P.C.; that injuries attributed to the appellant were found available at the time of post mortem examination of the deceased and the medical evidence lends full support to the ocular account; that co-accused Yasir Khan, a son of the appellant, is still fugitive from law; that the motive is directly linked against the appellant; that the recovery of weapon of offence from the appellant provides further corroboration to the ocular account; that the appellant and the deceased were real brothers inter-se and, as such there was no occasion for the complainant to falsely implicate him in this case while letting off the real culprit; that the learned trial Court after due appreciation of the evidence in its true perspective, has rightly convicted the appellant and, thus, keeping in view brutality of the murder of the deceased by his real brother, the appellant deserves no leniency by this Court rather he deserves capital sentence. At the end, a prayer has been made for dismissal of the appeal.
11. I have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State and perused the record with their able assistance.
12. This unfortunate incident had taken place on 06.08.2007 at 05:30 p.m., which was reported to the police at the same time and in pursuance thereto the complaint was written by the police officer at 6:00 p.m. resulting, into the registration of case at 06:10 p.m. within forty minutes of the alleged occurrence. This promptness in lodging the crime report not only confirms the presence of eye-witness at the spot but also it excludes every hypothesis of deliberation, consultation and fabrication prior to the registration of the case.
13. The mainstay of the prosecution was on the sole testimony of Mst. Saima Khan, (PW-8)/complainant/wife of deceased Habib Khan. She while appearing in the dock of court room reiterated contents of the crime report deposing that on the fateful day at about 05:30 p.m., she along with her husband Habib Khan (deceased), Asif Khan and Rizwan Khan was going to attend Khatam of wife of one Shahid Khan and when they reached in front of outer door of the house of Rana Faqiria, situated at Chowk Katcha, Gojra, the appellant along with Yasir Khan (since P.O.) both armed with Kalashnikovs and three unknown accused while armed with pistols de-boarded from a white car, appellant Wali Nawaz Khan and Yasir Khan made fire shots, one each, with their Kalashnikovs, resulting into the fire arm injuries at the right thigh, left buttock and right side of chest of deceased Habib Khan. The unknown accused caused fire arm injuries with their respective pistols at the right shoulder and left wrist of the deceased. The accused persons succeeded to flee away, while boarding in the said car. They attended Habib Khan, who succumbed to the injuries at the spot. The complainant was subjected to the ordeal of lengthy cross-examination wherein she remained firm and consistent qua the date, time, place, mode and manner of the occurrence, names of the appellant and his co-accused, the weapons of offence being carried by them specifying role of each accused including the appellant of causing fire arm injuries to the deceased. Though the complainant lady was the only witness, who furnished the ocular account and she was closely related to the deceased and there is no cavil to the legal proposition that in criminal cases the sole statement of an eye-witness is required to be corroborated through other witnesses yet this principle cannot be taken a universal rule. Each and every case has its own facts and circumstances and also merits of the case. Here in this particular case, the prosecution cited Irfan Khan, Rizwan Khan and Asif Khan as eye-witnesses in report under section 173, Cr.P.C. but during trial, one Aamir Khan filed a private complaint alleging therein that Mst. Saima Khan (complainant), Mst. Nuzhat Khan (other widow of the deceased) and Mugheer Khan (PW-3) as abettors, whereas, Irfan Khan and Rizwan Khan (present eye-witnesses) as henchmen of the occurrence. They were summoned by the trial Court as witnesses but subsequently, they absented themselves from the Court and perhaps under the fear and apprehension that they might have joined hands with the accused, the complainant made to give them up. In that backdrop, when the accused, by using various tactics, succeeded to win over these eye-witnesses, the prosecution's story cannot be disbelieved merely for the reasons that the cited witnesses did not step forward to support the prosecution story.
14. It was a broad day light occurrence, which took place at a thoroughfare surrounded by residential houses. The complainant had given specific reasons that she along with her husband and others was proceeding to attend Khatam of wife of one Shahid Khan, when this unfortunate incident had taken place. The appellant, in his statement recorded under section 342, Cr.P.C. admitted the presence of the complainant lady at the place of occurrence at the relevant time but with a different story stating that Irfan Khan and Rizwan Khan killed the deceased by making fire shots with their pistol and Kalashnikov respectively at the instance of present complainant Mst. Samia Khan and her companions Mst. Nuzhat Begum (other widow of the deceased) and one Mugheer Khan in order to grab an amount of Rs.50-lac i.e. the sale proceed of agricultural property of the deceased. It was further alleged that in pursuance of their planning to kill the deceased, the present complainant along with said Nuzhat Begum and Mugheer Khan took the deceased out of the house by deceitful means so that Irfan Khan and Rizwan Khan may succeed to kill him. Though the appellant did not produce any piece of evidence in support of his stance yet it goes admitted by him that the complainant lady was present at the place of occurrence at the relevant time.
15. Dr. Muhammad Aslam (PW-1) held autopsy on the dead body of deceased Habib Ahmad Khan on 07.08.2007 at about 01:30 a.m. and observed twelve fire arm injuries including six exit wounds and an abraded red swelling at right side of his forehead, which damaged walls on right side of chest and fracture of 5th rib on right side. The pleura, right thigh and the blood vessels on right side were injured. The cause of death was hemorrhage and shock due to fire arm injuries Nos. 2 to 13 individually as well as collectively except injuries Nos.1, 6 and 7, which were sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was immediate whereas death and postmortem examination it was 08-hours.
The submission of the learned defence counsel that the medical evidence is not in line with the ocular account qua fire arm injury attributed against the appellant at front of thigh of the deceased but the deceased had allegedly received all the fire arm injuries from front side, has no force because at the time of firing, the deceased was not a statute and free to move here and there in order to save his life and he might have sustained injury at his back in that process, which in no manner can be construed as a confliction with the ocular account. The locale, number and nature of the injuries, the weapons used for causing these injuries and the duration between injuries and death is exactly in line with the ocular account and as such the medical evidence lends full support to the ocular account.
16. The motive is always considered as an essential ingredient to provide foundation to any crime. Earlier, the deceased got lodged a crime report against his brother Wali Nawaz Khan (appellant) and his son Yasir Khan accusing them for firing at his tenants, in which the appellant and his son were fugitive from law. Besides this, the deceased was owner of 28-acres agricultural land situated at Chak Ayya, Tehsil Noshera Virkan and the appellant used to demand the share of land from the deceased, which was the bone of contention between the parties. The appellant in his statement recorded under section 342, Cr.P.C. did not controvert motive part of the occurrence rather he admitted the same by stating that his deceased brother sold out his property in France and transferred a huge amount in the shape of Euro. He further admitted that the deceased was owner of 32-acres of agricultural land, which was under his cultivation since long and on his return to Pakistan, his wives compelled him to sale out the said land. With this backdrop, I am persuaded to hold that the prosecution has successfully proved motive part of the occurrence.
17. The report of Forensic Science Laboratory Punjab, Lahore (Ex.PO) qua the fire arm weapon recovered at the instance of the appellant has been received with negative result showing that it did not find wedded with the crime empties already secured from the place of occurrence and, thus, the recovery of weapon of offence from the appellant remained inconsequential.
18. Having scanned the entire prosecution evidence, I have entertained no manner of doubt in my mind that the prosecution has successfully proved the charge of homicidal death of deceased Habib Khan at the hands of the appellant and his co-accused beyond shadow of reasonable doubt. It was a broad day light occurrence, which took place in a thoroughfare surrounded by the residential houses and the same was reported to the police within the shortest possible time. All this rule out every possibility of fabrication and consultation prior to the registration of the crime report. The complainant well established her presence at the venue of occurrence at the relevant time and she remained firm and consistent on all material particulars of the incident including role of the appellant for causing fire arm injuries to the deceased being supported with the medical evidence. The motive is directly linked against the appellant, which has been established by the prosecution beyond shadow of reasonable doubt. Though the recovery of weapon of offence from the appellant remained inconsequential being not found wedded with the crime empties already secured from the place of occurrence, the same being corroboratory piece of evidence, cannot be given preferential status to the overwhelming confidence inspiring ocular account as well as the medical evidence and for that very reason, the appellant has rightly been benefited for not awarding him capital sentence. I have no legitimate exception to differ with the conclusion arrived at by the trial Court qua conviction and sentence of the appellant.
19. The epitome of above discussion is that the appeal in hand is without any merit, the same stands dismissed. The appellant is on bail, he shall be taken into custody in order to serve out his remaining sentence.
Criminal Revision No.690 of 2010
20. For the reasons recorded herein above, this petition seeking enhancement of sentence of respondent No.3 to the capital sentence is devoid of any merit, the same stand dismissed in limine.
JK/W-1/L Appeal dismissed.