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Official Citation: 2023 YLR 915
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2025
Decision Date: 2025-01-23
Parties: Shah Zamin and others vs The State and another
Ruling Summary: This decision was rendered by the Peshawar High Court on 2025-01-23, officially reported as 2023 YLR 915. In this matter between Shah Zamin and others and The State and another, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023 YLR 915
Court Name: Peshawar High Court Judge(s): Muhammad Naeem Anwar Title: Shah Zamin and others vs The State and another Case No.: Cr. A No. 87-M/2024, Cr. R No. 25-M/2024 Date of Judgment:2025-01-23 Reported As: 2025 PHC 6 Result: Appeal Dismissed
JUDGMENT
JUDGMENT MUHAMMAD NAEEM ANWAR, J.- This judgment is aimed to decide instant appeal Cr.A No. 87- M/2024 as well as the connected Cr.R No. 25-M/2024 as both these cases are emanating from the same judgment rendered by learned Sessions Judge/Zilla Qazi, Dir Lower at Timergara dated 14.03.2024 in case FIR No. 796 dated 16.11.2018 u/s 302, 324, 337-D, 34 PPC of P.S Khali, District Dir Lower, whereby appellant Shah Zamin son of Fazal Khan was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life as Ta'azir for committing murder of deceased Amin Khan. He was also held liable to pay compensation under Section 544-A, Cr.P.C. to the tune of Rs.500,000/- to the legal heirs of the deceased, recoverable as arrears of land revenue. In case of non realization of the compensation, he was directed to undergo further six months S.I. Complainant, through the connected Cr.R No. 25-M/2024, is seeking enhancement of the sentences awarded to appellant by learned trial Court. 2. On November 16, 2018, at 13:55 hours, a tragic incident occurred inside the mosque of village Dargai, Tormang Dara, where Amin Khan was shot dead, and his son Zia Ullah was seriously injured in the same incident. Injured Zia Ullah along with dead body of his father were brought to civil hospital at Khali where he reported the incident to local police at around 14:50 hours. He stated that there was a long-standing dispute with his uncle, Shah Zamin (the appellant), over a piece of land, which Shah Zamin had been preventing them from cultivating. On the day of the incident, both Amin Khan and Zia Ullah went to the mosque to offer Friday prayers. After the prayers, Amin Khan asked Shah Zamin to resolve the land dispute in front of the people gathered in the mosque, which led to an altercation between them. Appellant Shah Zamin and his son Sabih Ullah (who is still
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absconding) opened fire on them with their pistols. As a result, Amin Khan was shot and killed on the spot, while Zia Ullah was injured by the firing of Sabih Ullah. The incident was witnessed by complainant's brothers, Arshad Khan and Fawad Khan, as well as other people present in the mosque. The motive behind the crime was revealed to be a dispute over land ownership. The police recorded the report in Murasila and sent to police station through Constable Ramzan Ullah leading to registration of the formal FIR. 3. Initially, both accused went into hiding. Consequently, following the completion of proceedings under Section 512, Cr.P.C., they were declared proclaimed offenders by the learned trial Court on 11.05.2019. The appellant was arrested on 17.12.2021. After completing post-arrest investigations, he was recommended for trial through submission of supplementary challan to the Court. Formal charge was framed against him, to which he pleaded not guilty and opted to face trial. To strengthen its case against the appellant, the prosecution presented and examined 14 witnesses. When examined under Section 342, Cr.P.C., the appellant again denied the charges; however, he did not present any evidence in his defense nor did he choose to testify under oath under Section 340(2), Cr.P.C. On conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed in the judgment, leading to this appeal and the connected revision petition. 4. Learned counsel for the appellant, while presenting his arguments, emphasized several key points regarding the credibility and reliability of the sole eyewitness, the injured complainant, Zia Ulla. He argued that the complainant's testimony does not adhere to the standards set by superior courts for sustaining a conviction. He asserted that the mere fact that a witness sustained injuries does not inherently guarantee the truthfulness of his statement; instead, such a statement must align with various factors, including consistency with other evidence,, adherence to probabilities, and an overall ability to inspire confidence, the qualities that the learned counsel contends are absent in the complainant's account. Furthermore, he highlighted that intrinsic value and robust corroboration are essential for believing the testimony of a sole eyewitness. According to him, the complainant's account lacks these critical elements, thereby undermining its reliability. The learned counsel also pointed out that the complainant is an interested witness; thus, relying solely on his motive for corroboration is legally precarious. The inconsistency between the complainant's testimony and other circumstantial evidence is another focal point of the counsel's argument. He raised concerns about internal contradictions within the witness's own statement, suggesting that any single inconsistency should render the testimony doubtful. According to him, discrepancies in the timeline presented by the prosecution contradict the evidence on record, indicating that both the injured and the deceased were medically examined prior to the lodging of the report. He stressed that this sequence of events suggests a calculated approach by the complainant to implicate the appellant in a false narrative. The learned counsel also critiqued the medical evidence, arguing that it does not align with the prosecution's narrative and the site plan. Specifically, he challenged the nature of the wounds sustained by the deceased and the complainant, noting the absence of inverted and everted features that would typically indicate firearm injuries. Furthermore, according to his contention, the medical report fails to clarify the cause of death, which casts further doubt on the prosecution's case. Additionally, the learned counsel pointed to the problematic preparation of the site plan, which was based on information from alleged eyewitnesses Fawad Khan and Arshad, who were not called to testify in Court. This omission, in the counsel's view, diminishes the evidentiary value of the site plan. He also raised concerns about the absence of recovered bullet casings at the scene, alongside discrepancies regarding the location of blood evidence, which further question the integrity of the prosecution's claims. He also blamed the injured complainant for dishonestly improving his initial version for strengthening a false case against the appellant. In conclusion, the learned counsel asserted that
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the prosecution's case is fraught with significant inconsistencies and flaws, which collectively raise doubts about the factual assertions underlying the conviction. Therefore, he contended that the judgment resulting from such precarious and insubstantial evidence cannot be upheld in the eyes of the law. He placed reliance on "Khalid Mehmood alias Khaloo Vs. The State" (2022 SCMR 1148), "Muhammad Jehangir alias Badshah and another Vs. The State" 1995 SCMR 1715), "Muhammad Rafique Vs. Mohabbat Khan and others" (2008 SCMR 715), "Muhammad Ashraf and others Vs. The State" (1998 SCMR 279), "Imran Ashraf and others Vs. The State" (2001 SCMR 424), "Bashir Muhammad Khan Vs. The State" (2022 SCMR 986), "Azhar Iqbal Vs. The State" (2013 SCMR 383), "Gul Muhammad and another Vs. The State and another" (2021 SCMR 381), "Tariq Mehmood alias Asif Khan Vs. The State and another" (2023 YLR Note 13), "Ikramullah Vs. The State and another" (2022 YLR 1450), "Pervez Iqbal Vs. The State and another" (2013 P Cr. L J Note 16), "Abdul Basit Vs. The State and another" (2021 P Cr. L J 348), "Khalil-ur-Rahman and another Vs. The State and another" (2019 YLR 2553), "Muneeb Hassan Vs. The State and another" (2023 YLR 2462), "Muhammad Asif Vs. The State and another" (2018 YLR 1658), "Bakht Zada Vs. The State and others" (2013 YLR 230), "Mir Ahmad Shah Vs. The State and another" (2013 YLR 982), "Mubarik Ali Vs. The State and another" (2017 MLD 889), "Sajid Vs. The State and another" (2023 P Cr. L J 19), "Ghulam Rasool Vs. The State" (2022 YLR 853), "State Vs. Faizullah and others" (2021 YLR 163), "Lais Khan and another Vs. The State and another" (2022 YLR 9), "Inayatullah Vs. The State" (2019 P Cr. L J 1392), "Meer Muhammad Vs. The State" (2023 P Cr. L J 885), "Acieel alias Mundri Vs. The State" (2017 YLR 375), "Naik Awaz and another Vs. The State" (2023 YLR 1930), "The State Vs. Subhan Ali and another" (2020 MLD 1901), "Inayatullah and another Vs. The State and others" (2016 YLR 2020), "Abid and others Vs. The State" (2016 YLR 267), "Fayaz Khan Vs. The State and others" (2011 P Cr. L J 363), "Asad Shah Vs. The State and another" (2021 YLR 1199), "Noor Alam Vs. Abdul Wahab and another" (2018 YLR 1571), "Abdul Haleem Vs. The State" (2016 YLR 1418), "Ahmad Shah and another Vs. The State and another" (2022 P Cr. L J 1260), "Riaz and another Vs. The State and another" (2022 P Cr. L J 1070), "Abdur Rahman Vs. The State and others" (2022 YLR 68), "Abdul Haleem Vs. The State and others" (2022 YLR 1478), "Muhammad Rizwan Vs. The State and others" (2018 MLD 410), "Muhammad Ibrahim and another Vs. The State" (2019 P Cr. L J 1378) and an unreported judgment of this Court in Cr.A No. 31-M/2023 "Sher Zamin Vs. The State and another" decided on 23.09.2024. 5. Conversely, the learned counsel for the complainant and the learned Assistant Advocate General vehemently opposed the arguments presented by the appellant's counsel, asserting that the prosecution has successfully met its legal burden by establishing the guilt of the appellant beyond a reasonable doubt. They contended that the presence of the injured complainant, who bears clear firearm injuries, cannot be reasonably questioned. His testimony, they argued, provides a credible and straightforward account of the events, leaving no room for doubt. The counsel asserted that the complainant's relationship to the deceased or his status as an interested party should not diminish the veracity of his testimony as he is, after all, a victim of the same incident. They further argued that it is not a prerequisite for the prosecution to produce and examine every witness listed in the evidence roster; instead, the weight of the evidence provided must be evaluated on its own merit. In this case, they asserted that the ocular account presented by the complainant is trustworthy and commands confidence, thus it should not be overshadowed by medical evidence, which is more corroborative in nature than central to the case. The prosecution's representatives also asserted that the defence's attempts to highlight minor discrepancies in the testimony are inconsequential and should not destabilize the overall credibility of the evidence. They argued that the appellant's abscondence and his conduct as a fugitive from the law cannot be overlooked; such actions are indicative of his guilt in relation to the murder of his own brother. In culmination of their argument, counsel for the prosecution emphasized that, considering the
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compelling direct and circumstantial evidence presented, the guilt of the appellant has been convincingly established beyond a reasonable doubt. Therefore, they requested that this appeal may be dismissed, advocating that the appellant's sentence may be enhanced to the normal penalty of death, given the gravity of the circumstances surrounding the case. They produced the following case law in support of their contentions. "Khushi Muhammad Vs. The State" (1983 SCMR 697), "Muhammad Bashir and another Vs. The State and others" (2023 SCMR 190), "Nasir Ahmad Vs. The State" (2023 SCMR 478), "Abdul Wahid Vs. The State" (2023 SCMR 1278), "Imran Mehmood Vs. The State and another" (2023 SCMR 795), "Aqil Vs. The State" (2023 SCMR 831), "Miss Najiba and another Vs. Ahmad Sultan alias Sattar and others" (2001 SCMR 988), "Rab Rakhio and others Vs. The State" (1992 SCMR 793), "Fayyaz Khan alias Fiazi Vs. The State" (2017 SCMR 2024), "Qasim Shahzad Vs. The State and others" (2023 SCMR 117), "Khalid Ahmad Vs. The State" (2023 YLR 915), "Sharaf Khan Vs. The State" (2021 P Cr. L J 1664) and "Niaz Ali Raiper Vs. The State" (2020 P Cr. L J 96). 6. We have heard the detailed arguments of learned counsel for the parties including the learned Assistant Advocate General and perused the record with their able assistance. 7. The prosecution has primarily based its case against the appellant on the ocular account provided by the injured complainant, Ziaullah (PW-12), who has been examined as the sole eyewitness of the incident. Additionally, the prosecution has relied on medical evidence and incriminating recoveries made from the crime scene coupled with blood-stained apparels of the deceased and injured secured for the forensic analysis. The defence has challenged the prosecution's evidence on multiple grounds, necessitating a reevaluation to ensure a just and fair determination. In criminal cases, the ocular account is crucial, and superior courts have established fundamental principles to assess such evidence, considering the attending facts and circumstances of each case. While it is well-established that a truthful, reliable, and unimpeached eyewitness account, even from an interested party, does not require corroboration, as held by the Hon'ble Supreme Court in "Abdur Rauf Vs. The State and another" (2003 SCMR 522), but on the other hand the superior courts often advocate for independent corroboration of interested and related witnesses, particularly in cases involving capital punishment. They emphasize that the testimony of interested witnesses should be scrutinized with great care. In view of the above principles, it is imperative to first analyze the intrinsic worth of the statement recorded by injured complainant and thereafter seek independent corroboration to support his account in this case to ensure that justice is served. 8. The submission made by the defence counsel that the firearm injuries sustained by the complainant were not established lacks merit and substance. The evidence on record clearly indicates that the complainant was indeed injured during the incident that took place inside the mosque of village Dargai on Friday, November 11, 2018. The complainant's injury sheet (Ex.PK/1) and OPD slip (Ex.PK) obtained from the civil hospital Khall, where he was initially examined, clearly indicate that he sustained a single bullet wound above his umbilical region, with the exit being reported on the left side above the iliac spine. These medical documents provide concrete evidence supporting the version of prosecution that the injuries found on the body of complainant had been caused with firearm. A further indication of the complainant's medical treatment can be found in the medical documents obtained from DHQ hospital Timergara. These documents detailed the complainant's treatment and discharge from the hospital on November 26, 2018. This evidence confirms that the complainant was indeed treated for his firearm injuries. The testimony of Dr. Attiq-ur-Rahman (PW-8) also supports the prosecution's version. Although he initially failed to mention the complainant's medical examination, his subsequent re-examination on February 2, 2024, corrected this omission. The doctor verified the medical examination and documents related to the complainant, thus confirming the injuries sustained by him. The defence counsel attempted
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to discredit the prosecution's case by suggesting that Dr. Attiq-ur-Rahman (PW-8) did not examine the complainant, and therefore, did not mention his medical examination in his initial statement. However, the medical record from DHQ hospital Timergara contradicts this claim, demonstrating that the complainant was indeed treated for his firearm injuries. The testimony of Jehanzeb (PW-2), the brother of the deceased and the appellant, also corroborates the prosecution's version. He confirmed that both the deceased and the complainant had sustained firearm injuries during the firing incident in the mosque of village Dargai. This fact is further corroborated by recovery of blood of the injured complainant and deceased from the spot and matching FSL report Ex.PW-6/ 14 qua the blood recovered from the spot and blood-stained apparels of both the victims. In light of the above evidence, the submission of the counsel for appellant that the firearm injuries sustained by the complainant were not established is without any force. The evidence on record clearly confirms that the complainant was indeed injured during the incident, and the prosecution has established this fact through concrete medical evidence, the testimony of Dr. Attiq-ur-Rahman (PW-8), and the statement of Jehanzeb (PW-2), therefore, his testimony carries more evidentiary value. Reliance is placed on Aqil's case (2023 SCMR 831). 9. In evaluating the intrinsic worth of the statement recorded by the complainant, it is noteworthy that he provided a clear and coherent account of the events leading to the tragic incident. According to his testimony, there was an ongoing land dispute between the parties, during which the appellant was preventing the deceased from cultivating his land. To address this conflict, the deceased chose to approach the appellant after the Juma prayer, during an informal Jirga of the village community gathered in the mosque for Juma prayers. During this meeting, the deceased directly requested the appellant to settle the dispute and invited the appellant to express any grievances he might have against the deceased. However, this dialogue escalated into arguments, ultimately culminating in the appellant and his son resorting to gunfire. The timing and location selected for this dispute resolution are consistent with local customs, making the complainant's narrative not only plausible but also reasonable within the social context. The motive for the confrontation has been further corroborated by the testimony of Jehanzeb (PW-2), who confirmed during cross-examination that a land dispute existed between the parties involved. The presence of the appellant, the absconding co-accused, and several eyewitnesses at the crime scene is substantiated by the complainant's testimony. He stated under his cross-examination that the appellant was positioned in the third row of the mosque during the Juma prayers, while his own brothers were in the veranda. Additionally, the complainant indicated that at the time of firing, eyewitnesses Arshad was still inside the mosque while Fawad and Waqar were in the designated shoes area, further solidifying the presence of multiple witnesses during the incident. Following the shooting, both the injured complainant and the deceased were taken to Khall Hospital, where the complainant reported the incident at 1450 hours, merely 55 minutes after the occurrence. This timely report, given the approximately 15-16 kilometers distance from the scene to the police station, suggests that there was no opportunity for collusion or fabrication of a false narrative. Thus, the prosecution has effectively established that the complainant is a victim of the shooting, as evidenced by the firearm injuries he sustained. His statement aligns with the probabilities and circumstantial evidence on record, rendering it credible and reassuring. The combination of coherent testimony duly corroborated by circumstantial evidence and the prompt reporting of the incident all serve to highlight the reliability of the complainant's narrative, lending substantial weight to the prosecution's case. Reliance is placed on the judgment of the Hon'ble Supreme Court reported as "Rooh Ullah and other Vs. The State and others" (2022 SCMR 888) wherein it has been held that: No doubt, injuries on the person of a witness are not a passport into the realm of truth, however, the learned counsel has not been able to point out even a single circumstance to suspect testimony of
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Azam Tariq PW. Incident, a daylight affair, was reported with a remarkable promptitude followed by examination of the injured as well as autopsy, circumstances that cumulatively exclude possibility of consultations or deliberations. No doubt, that the complainant is interested witness being victim of the same occurrence and related to deceased being his son, however, the above factors coupled with the motive of land dispute between the parties do not render his testimony unreliable when the intrinsic worth of his statement has remained intact. It is settled law that intrinsic value of the statement of a witness is to be looked into and not his relationship with the deceased. Reliance is placed on "Abid Ali and 02 others V/s. The State" (2011 SCMR 208) wherein the Hon'ble Supreme of Pakistan has laid down a guideline for accepting or rejecting ocular account in criminal cases in the following words: "21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement. 22. As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of the evidence. It is not that who is giving the evidence and making statement; what is relevant is what statement has been given. It is not the person but the statement of that person which is to be seen and judged." Likewise, in the case of Abdul Wahid (2023 SCMR 1278), it has been laid down that if the presence of the related witnesses at the time of occurrence is natural and their evidence is straightforward and confidence inspiring then the same can be safely relied upon to sustain conviction of an accused. 14. In addressing the arguments raised by the learned counsel for the appellant regarding the alleged unusual or unnatural conduct of the complainant and other eyewitnesses mentioned in the FIR who have not been examined during the trial, it is important to analyze these contentions considering the specific circumstances surrounding the case. The conduct of an eyewitness is indeed a relevant factor in assessing the credibility of his testimony. It serves as an indicator of the truthfulness and reliability of his deposition, particularly when viewed against the backdrop of the incident. In the present case, it has been established that the complainant was injured concurrently while his father was shot dead. Given the gravity of the situation and the immediate threat to his own life, it is unreasonable to expect the complainant to have acted in a manner that would involve resisting the fire or attempting to save his father. Such an expectation is out of line with the realistic reactions that individuals typically exhibit in life-threatening situations. Thus, the contention of the learned counsel for the appellant to this effect is devoid of any force. As regards the conduct displayed by the other eyewitnesses, admittedly, they have not been examined during the trial. Without their ocular count being recorded, it is difficult to draw any conclusions about their behavior or to assess how it may have impacted the credibility of the complainant's account. In this case, the complainant stands as the sole eyewitness, and his testimony should be evaluated based on the available evidence. Considering that the complainant is the only eyewitness whose statement has been recorded in Court, his account should carry significant weight in the pursuit of a fair and just conclusion. Even if the conduct of other witnesses is questionable or unusual, this does not diminish the veracity of the complainant's own statement. The query arises regarding the implications of the conduct of other eyewitnesses and whether this would challenge the credibility of the complainant's testimony in light of the principle of falsus in uno, falsus in omnibus'. This
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principle suggests that if one part of a witness's testimony is false, all of it may be disregarded, however, must be understood in the context of each case. Since the other eyewitnesses were not called to testify, it is impossible to evaluate their conduct and ascertain whether it was usual or unusual. Therefore, applying this maxim in the current scenario would be inappropriate. Moreover, prevailing judicial thought, including that from the Hon'ble Supreme Court, indicates that the principle of falsus in uno, falsus in omnibus' does not rigidly…
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