Full Judgment Text & Judicial Ruling

2026 Y L R 397 [Peshawar (D.I Khan Bench)] Before Muhammad Faheem Wali and Dr. Khurshid Iqbal, JJ Saqib---Appellant Versus The State and another---Respondents Criminal Appeal No. 09-D of 2023 with Criminal Misc. No. 05-D of 2023, decided on 11th September, 2023. (a) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Accused was charged for committing murder of the son of complainant by firing---Ocular account was furnished by complainant/father of deceased, his brother and son-in-law---Complainant and his son-in-law were not the eye-witnesses of the incident---Son-in-law of complainant was immediately attracted to the spot where brother of complainant was also present there---Son-in-law of complainant did not ask right at that time, nor did brother of complainant inform him of having seen the appellant firing at the victim---Brother of complainant mentioned the presence of son-in-law of complainant, but the latter remained absolutely silent about the presence of the former---Said witnesses had contradicted each other in such a way that complainant did not specifically mention in the Murasila that his son-in-law informed him that the appellant was the culprit---Complainant made improvement in examination-in-chief of his deposition that his son-in-law informed him in his house that the appellant had fired at the deceased---Son-in-law of complainant, on the other hand, stated that he asked the injured victim about the culprit when he was back to the place of the incident, along with complainant---All the three witnesses failed to positively support each other---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Justification for the presence of witnesses at the spot not proved---Accused was charged for committing murder of the son of complainant by firing---Brother of complainant was eye-witness of the occurrence---If the brother of complainant had seen the appellant having fired at the deceased, why he didn'tinform at least son-in-law of complainant, let alone other people present there---Purpose of the presence of the son-in-law of complainant near the spot in a Market might appear to be somewhat justified because, as per his version, he was on 28 days long leave during those days---However, the purpose of presence of brother of complainant was not clear in his statement---So, it was shrouded in mystery for what purpose he was present there---Said witness was the real uncle of the deceased---During cross-examination, said witness was confronted with his statement recorded under S. 161 Cr.P.C.---Said witness recalled that in his S.161 statement, he stated before the Investigating Officer that father of the deceased came back, along with his son-in-lawand other relatives to the spot---When asked about the presence of son-in-law, brother of complainant replied that son-in-law had reached the spot before his arrival there---Son-in-law was present at the spot right at the time of the occurrence but the latter, did not mention that brother of complainant was also present and moreso, he was the eye-witness of the occurrence---In such circumstances, material dents were visible in the evidence of the prosecution---Name of the eye-witness was not mentioned in the Murasila despite the fact that the complainant came to know about the so called eye-witness/brother of complainant---Eye-witness did not state the purpose of his presence on the scene of the incident---Admittedly, said witness was the real uncle of the victim---There was no doubt of said witness being a highly interested witness---In the circumstances, possibility of the appellant being falsely implicated could not be ruled out---Appeal against conviction was allowed, in circumstances. Rehmat Ullah and another v. The State 2020 YLR 103; Dalmir and another v. The State 1970 SCMR 840 and Muhammad Idrees and others v. State through Advocate General and others 2021 YlR 48 rel. (c) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural conduct of the witness---Accused was charged for committing murder of the son of complainant by firing---In the present case, it looked quite unnatural on the part of son-in-law of complainant that instead of lifting up the injured victim for medical treatment, he simply rushed to his house to inform his father---Factum of unnatural conduct on the part of prosecution witness was fatal to the prosecution case---Appeal against conviction was allowed, in circumstances. Zaheer Sadiq v. Muhammad Ijaz and others 2017 SCMR 2007; Syed Ali Akbar v. State 2023 YLR 903 and Javed Khan v. The State and 2 others 2023 PCr.LJ 17 rel. (d) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in lodging the FIR---Accused was charged for committing murder of the son of complainant by firing---Record showed that in the statement of eye-witness/brother of complainant it was mentioned that when the victim then injured was lifted from the place of the occurrence, he was initially taken to the Police Station from where he was shifted to the hospital---Keeping in view the fact that the injured victim disclosed to son-in-law of complainant that the appellant fired at him, it followed that the victim in injured condition was in a position to speak sensibly---Victim should have lodged the report in Police Station---According to the statement of Medical Officer, when the injured victim was brought to the hospital, he was found unconscious---In the evidence it was stated that while on the way to the hospital, some mechanical defect occurred in the private vehicle in which victim was lying; that injured victim was thus shifted to another vehicle; that on the way to the hospital, the condition of the injured victim grew from bad to worse, leading to his unconsciousness and ultimately his death---In short, there was a proper opportunity for the victim to make report at the Police Station---Appeal against conviction was allowed, in circumstances. Qaizar v. Tariq and others 2019 YLR 2115 rel. (e) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the pointation of accused doubtful---Accused was charged for committing murder of the son of complainant by firing---Accused/appellant was arrested on 06.4.2019, i.e. the day of the occurrence---A .30 bore pistol was shown recovered from his baithak on his pointation---Inspector/SHO of Police Station arrested the appellant---As per statement of SHO, the appellant madepointation during what he called 'cursory interrogation'---Said SHO recovered the pistol vide a memo---In addition to one Constable, a private person was cited as a marginal witness to the recovery memo---Said private witness was examined and in his examination-in-chief, he deposed that the appellant had murdered his cousin and he was about to go to another district---In the meanwhile, the appellant in handcuffs was brought by the local police to the place of the occurrence---Local police asked him to accompany him to the baithak of the appellant---In his baithak, the appellant pointed out the place where he had concealed the .30 bore pistol---Said private witness stated that in respect of the said pointation, he signed a blank paper---Said witness deposed that in his presence, nothing was handed over bythe SHO to the Investigating Officer---On the request of the prosecution, said witness was declared a hostile witness---Said witness was, then, subjected to cross-examination by the prosecution---Even while under the cross-examination, said witness reiterated that he had signed a blank paper---Said witness was confronted with the recovery memo. on which he admitted his signature as correct---Though, said witness declared incorrect a suggestion that he did not sign a blank paper, in the next breath, he voluntarily stated that he had signed a blank paper---Said witness also denied a suggestion that in his presence, the SHO gave to the Investigating Officer the alleged weapon of offence---In that respect, the deposition of the DSP Circle was also worth perusal as he in his examination-in-chief stated that on tentative interrogation the appellant pointed out the place where he had allegedly concealed the weapon of offence---When DSP took the appellant to his baithak, he further added, that a private person came there whom he cited as a marginal witness to the recovery memo---Thus, it was established that the prosecution failed to prove the recovery of weapon of offence---Appraisal of evidence led to the conclusion that the recovery of the weapon of offence was highly doubtful---In these circumstances, the recovery had become inconsequential---Appeal against conviction was allowed, in circumstances. Zahid Mehmood and others v. The State and others 2020 YLR 62; Muhammad Hanif alias Fouji v. The state 2017 YlR 543; Mst. Zarina and others v. The State and others 2016 PCr.LJ 20 and Aqil Zaman alias Aqeel v. The State and another 2022 PCr.LJ 1576 rel. (f) Penal Code (XLV of 1860)--- ----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Confessional statement of accused, recording of---Infirmities---Accused was charged for committing murder of the son of complainant by firing---Appellant made confession before the Judicial Magistrate---Order dated 08.4.2019 of the Judicial Magistrate showed that the appellant was handed over to the Naib Court for sending him to the judicial lock-up---In that respect, statement of Investigating Officer was worth perusal---Record showed that he produced the appellant before the Judicial Magistrate for recording his confessional statement---As per statement of Investigating Officer, it appeared that the appellant was handed over to Investigating Officer after recording his confessional statement---It was further reflected from the statement that the appellant was handed over to Investigating Officer after 12 minutes of his production before the Judicial Magistrate---Investigating Officer stated that three other Police Officials accompanying him, shifted the appellant to judicial lock-up after recording confessional statement---Said replies materially contradicted the statement of the Judicial Magistrate, his order dated 08.4.2019 pertaining to the judicial remand and the certificate he issued in respect of the confessional statement---Certificate showed that the appellant was produced before the Judicial Magistrate at 01:30p.m.; he gave 30 minutes time to the appellant for thinking over his decision to make confessional statement, he started recording confessional statement at 02:00p.m. and finished it at 02:15 p.m.---When asked, Judicial Magistrate could not tell the exact time he consumed while explaining the questionnaire to the appellant---Judicial Magistrate rather furnished a general reply stating that sufficient time was consumed---Judicial Magistrate was not cross-examined on that aspect of the confessional statement and from his order dated 08.4.2019, it was clear that he had handed over the appellant to the Naib Court for his onward transmission to the judicial lock-up---Appellant somehow or the other was again given into the hands of the Investigating Officer---Judicial Magistrate could not be blamed for that---However, as per statement of Investigating Officer, it was quite clear that the Investigating Officer managed to get back the appellant into his control and custody---Thus, the police high-handedness was apparent from the evidence, which had a material bearing on the voluntariness of the appellant s confession---When the very voluntariness of a confessional statement becomes a begging question and when ocular account is also disbelieved then in the absence of any other confidence inspiring evidence, it would not be safe to make such a confessional statement a base for conviction---Appeal against conviction was allowed, in circumstances. Hashim Qasim and another v. The State 2017 SCMR 986 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel. (g) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the son of complainant by firing---Motive behind the occurrence was that the complainant filed a complaint against the accused one year ago, due to that grudge, present occurrence took place---In support of the motive, the prosecution examined Head Constable of police station, who produced copy of an application submitted by the complainant to the SHO on 22.3.2018---In the application, the complainant voiced his grievance that the appellant was teasing the victim when the latter went to school---Court Witness deposed that the application was assigned to him for consideration as he was able to resolve the issue due to which the complainant didn't pursue the matter---To that effect, complainant recorded a statement in the police station in the presence of witnesses---One of the witnesses of that statementremained silent on the motive---Other witnesses were not produced---Despite all this, motive, as a double-edged weapon, could be used either way---In the circumstances of the case even if the motive was believed to be true, it also could not be considered sufficient proof of the charge---Appeal against conviction was allowed, in circumstances. (h) Criminal trial--- ----Benefit of doubt---Principle---Prosecution alone had to prove its case against an accused beyond any reasonable shadow of doubt---Benefit of every inconsistency, loophole or contradiction which pricked the judicious mind must be extended to the accused, not as a matter of grace or concession, but as of right. Ahmed Ali and another v. The State 2023 SCMR 781 rel. Saif-ur-Rehman Khan for Appellant. Aamir Farid Saddozai, Asstt: A.G for the State. Muhammad Bilal Khan Kundi for the Complainant. Date of hearing: 11th September, 2023. Judgment Dr. Khurshid Iqbal, J.---The instant appeal has been preferred by the appellant Saqib son of Malik Ihsanullah against the judgment of the Additional Sessions Judge-II/MCTC, D.I.Khan, passed on 27.02.2023, in case FIR No.64, dated 06.4.2019, under Section 302 P.P.C of Police Station yarik, D.I.Khan, whereby he was convicted under Section 302(b) P.P.C and sentenced to imprisonment for life as Ta'zir. He was also held liable to pay Rs.20,00,000/- (rupees twenty hundred thousand) as compensation to the legal heirs of the deceased within the meaning of Section 544-A Cr.P.C, which shall be recoverable from his property as arrears of land revenue or in default thereof to undergo six months S.I. The benefit of Section 382-B Cr.P.C was extended to him. 2. Facts of the case shortly are that on 06.4.2019 at 09:10 a.m., the complainant Habibullah (PW-11) with the help of his relatives brought his injured son Hizbullah (victim / deceased) in semi unconscious condition to the Emergency Room of Civil Hospital, D.I.Khan. He reported that at morning time, his son went to the shop of one Iqbal for purchasing groceries. At about 07:30 a.m., his son-in-law Zubair (PW-7) rushed to his house and informed him that the victim was fired at. He, along with PW Zubair, rushed to the spot and saw the victim besmeared with blood. His injured son informed him that the appellant Saqib fired at him with his pistol. The complainant stated that the appellant claimed what he called to be in love with the victim. For this reason, he added, the appellant would tease the victim. Further highlighting the motive, the complainant informed that a year ago, a complaint was made against the appellant. However, the matter was patched up. The report of the complainant was reduced in the shape of a Murasila (Ex.PW-4/1) which culminated into registration of the FIR (Ex.PA). Initially, the FIR was registered under section 324 P.P.C. Later on the injured succumbed to his injuries, therefore, section 302 P.P.C was inserted. 3. After the arrest of the appellant followed by completion of investigation, challan was submitted against him. Formal charge was framed to which he pleaded not guilty and claimed trial. The prosecution examined fourteen (14) witnesses. At the conclusion of the prosecution evidence, the appellant was examined under Section 342 Cr.P.C. He professed innocence and false implication in the case. However, he neither wished to be examined on oath, nor did he want to produce evidence in defence. At the end of the trial, the learned trial Court convicted and sentenced the appellant/accused as mentioned above vide the impugned judgment. 4. We have heard the arguments of the learned counsel for the parties as well as learned Asstt: A.G. representing the State and perused the record. 5. According to the initial report of the incident (Murasila) the complainant Habibullah (PW-11/father of the victim) was informed by Zubair (PW-7) that the victim was fired at. The appellant was thus not nominated in the Murasila as culprit. The ocular account was furnished by PW-7, 11 and one Shah Nawaz (brother of the complainant (PW-10). A close reading of the evidence furnished by these PWs transpires that PW-11 was informed by PW-7 at his home that the victim was fired at. PW-11 had sent the victim out for buying some commodities from the nearby shop of one Muhammad Iqbal. PW-11 stated in his deposition before the Court that PW-7 informed him that the appellant fired at the victim. PW-7, when entered the witness box, did not name the appellant having fired at the victim, nor was such information disclosed by the PW-11 in the Murasila, as noted above. The deposition of PW-7 reveals that at the relevant time he was present in Shadi Khan Market in the shop of a Tailor Master when he heard firing. As he came out of the shop, he saw a crowd of people near the shop of Iqbal. He found the victim in injured condition lying across the road. He did not say in his examination-in-chief that either he asked the victim himself or heard from someone amongst the people present there that the appellant fired at him. Rather, he stated that on seeing the victim in injured condition, he immediately rushed to the house of the PW-11, where he informed him about the incident. His testimony further shows that he, along with PW-11, rushed back to the place of the incident and it was at that time that he asked the injured victim about the culprit, at which the latter replied that the appellant fired at him. PW-10, in his examination-in-chief, said that the deceased was coming from the shop of Iqbal towards the road side, when he came at a distance of about 10/15 paces, in the meanwhile, from the other side, the appellant armed with a pistol, came there and fired at him, as a result of which, he was hit and the appellant ran away from the place of the incident. He further stated that after seeing the occurrence, he rushed towards the injured victim where other people including Zubair (PW-7) also attracted. His testimony further shows that PW-7 brought PW-11 to the place of the incident. 76. It is established from the above that: firstly, PW-11 and PW-7 were not the eye-witnesses of the incident. Secondly, while PW-7 was immediately attracted to the spot where PW-10 was also present, PW-7 did not ask right at that time, nor did PW-10 inform him of having seen the appellant while firing at the victim. Thirdly, while PW- 10 mentioned the presence of PW-7, the latter remained absolutely silent about the presence of the former. Fourthly, PWs-7 and 11 have contradicted each other in such a way that PW-11 did not specifically mention in the Murasila that PW-7 informed him that the appellant was the culprit. PW-11 made improvement in examination-in-chief of his deposition that PW-7 informed him in his house that the appellant has fired at the deceased. PW-7, on the other hand, stated that he asked the injured victim about the culprit when he was back to the place of the incident, along with PW-11 (father of the deceased). All the three witnesses (PWs-7, 10 and 11) failed to positively support each other. 7. As stated above, if PW-10 had seen the appellant having fired at the deceased, why he didn t inform at least PW-7, let alone other people present there. The purpose of the presence of the PW-7 near around the spot in Shadi Khan Market may appear to be somewhat justified because, as per his version, he was on 28 days long leave during those days. However, the purpose of presence of PW-10 is not clear in his statement. So, it is shrouded in mystery for what purpose he was present there. He is the real uncle of the deceased (brother of the complainant). During cross-examination, he was confronted with his statement recorded under section 161 Cr.P.C. He recalled that in his 161 statement, he stated before the I.O that father of the deceased (PW-11) came back, along with Zubair (PW-7) and other relatives to the spot. When asked about the presence of PW-7, he replied that PW-7 had reached to the spot before his arrival there. As observed above, PW-7 was present at the spot right at the time of the occurrence but the latter, as noted above, does not mention that PW-10 was also present and more so, PW-10 was the eye-witness of the occurrence. In light of the above discussion, material dents are visible in the evidence of the prosecution. Firstly, the name of the eye-witness was not mentioned in the Murasila despite the fact that the complainant came to know about the so called eye-witness-Shah Nawaz (PW-10). In Remat Ullah (2020)[1] the name of the eye-witness was not disclosed in the first information report, which the Court considered fatal to the prosecution. Secondly, the eye-witness did not state the purpose of his presence on the scene of the incident. Admittedly, he is the real uncle of the victim. There is no doubt of his being a highly interested witness. In the circumstances, possibility of the appellant being falsely implicated cannot be ruled out. Guidance is derived from Dalmir (1970)[2], wherein three eye-witnesses were found to be interested and their evidence not buttressed by circumstantial evidence. Thirdly, many people got attracted to the crime scene but neither anyone amongst them came forward, nor did the I.O bother to examine anyone as a witness. In a recent case of 2021[3], a number of people had attracted to the spot and were present when a murder was committed, but no one of them came forward to support the prosecution case. Among others, this omission was considered by the Court against the prosecution. Fourthly, it looks quite unnatural on the part of PW-7 (Zubair) that instead of lifting up the injured victim for medical treatment, he simply rushed to his house to inform his father. The factum of unnatural conduct on the part of prosecution witnesses has been held fatal umpteen times in numerous pronouncements. Guidance can be taken from the judgment of the Supreme Court in Zaheer Sadiq case[4]. Reference may also be made to the latest cases of Syed Ali Akbars[5] and Javed Khan[6]. 8. Yet another aspect worth noting in the statement of PW-10 is that when the victim then injured was lifted from the place of the occurrence, he was initially taken to the P.S. Yarik from where he was shifted to the hospital. Keeping in view the fact that the injured victim disclosed to PW-7 that the appellant fired at him, it follows that the victim in injured condition was in a position to speak sensibly. The victim should have lodged the report in P.S. Yarik. According to the statement of Dr. Hissam-ud-Din (PW-3), when the injured victim was brought to the hospital, he was found unconscious. It is also in the evidence that while on the way to the hospital, some mechanical defect occurred in the private vehicle in which he was lying. He was thus shifted to another vehicle. It may be said that on the way to the hospital, the condition of the injured victim grew from bad to worse, leading to his unconsciousness and ultimately, his death. In short, his shifting in the Yarik Police Station was a proper opportunity for making report. In a 2019 case[7], a victim succumbed to injuries on the spot. A learned Division Bench of this Court held that the complainant should have lodged the report in the police station situated on the way to hospital. The learned Bench read it from the perspective of delay in lodging the report. The same aspect is quite relevant in the context of making a direct report in the shape of dying declaration to involve the appellant. 9. The appellant was arrested on 06.4.2019, the day of the occurrence. A .30 bore pistol was shown recovered from his baithak on his pointation. Inspector Saghir Gillani, the SHO of P.S.…

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