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Official Citation: 2023 PHC 362
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-07-05
Parties: Junaid Ahmad vs The State
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-07-05, officially reported as 2023 PHC 362. In this matter between Junaid Ahmad and The State, 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 2023PHC362
Court Name: Peshawar High Court Judge(s): Syed Muhammad Attique Shah, Wiqar Ahmad Title: Junaid Ahmad vs The State Case No.: Criminal Appeal No. 1119-P/2022 with Murder Reference No. 25-P/2022 Date of Judgment:2023-07-05 Reported As: 2023 PHC 362 Result: Appeal Dismissed
Judgment S. M. ATTIQUE SHAH, J.- Appellant Junaid Ahmad was charged for the murder of deceased Yahya, Mst. Kainat, Mst. Eisha, minors Shoaib and Zohaib while acquitted co-accused Ameer Khan was charged for abetment in the commission of the offence. A case under sections 302 / 109 / 201 PPC was registered against them vide FIR No.286 dated 20.03.2018 in Police Station Chamkani, Peshawar. Likewise, the appellant was separately charged under section 15 of the Arms Act. Both of them were tried by the learned Additional Sessions Judge-XIX, Peshawar, who, on conclusion of the proceedings / trial, convicted the appellant under Section 302(b) PPC and sentenced him to death on five counts as Tazir with the direction to pay Rs.5,00,000/- to the legal heirs of the deceased as compensation under Section 544-A, CrPC or in default thereof to undergo six months S.I, however, coaccused-respondent Ameer Khan was acquitted from the charges levelled against him vide judgment dated 31.10.2022. The appellant was also convicted under section 15 of the Arms Act and sentenced to three years simple imprisonment with a fine of Rs.5,000- or in default thereof to undergo two days S.I. Benefit of section 382-B CrPC was, however, extended to him by the learned trial court vide separate judgment of the even date i.e. 31.10.2022. Against his convictions, the present appellant filed the instant Criminal Appeal No.1119-P/2022 and connected Criminal Appeal No.1128-P/2022 while one Faqir Muhammad, father of deceased Mst. Kainat and Mst. Eisha, filed the connected Criminal Appeal No.1215-P/2022 against the acquittal of the acquitted co-accused. The learned Trial Court has also forwarded Murder Reference within the meaning of Section 374, CrPC. Since the appeals and murder reference are interlinked with each other and outcome of the same subject matter, therefore, these are being disposed of through this single judgment. 2. Brief facts of the case are that on 20.03.2018 at about 0200 hours, complainant Aurangzaib reported the matter to Khan Zaib, SI (PW-6), that as to how he was present at his home when he
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received information about the occurrence and pursuant thereto he rushed to the spot i.e. house of his nephew Yahya where he found him murdered I killed alongwith his wife Mst. Kainat, sister-in- law Mst. Eisha and minor sons Shoaib and Zohaib. Initially, he charged some unknown culprits for the commission of the offence. 3. On completion of investigation, the appellant and the acquitted co-accused were challaned to the court for trial. The copies of the relevant documents under Section 265-C, CrPC were supplied to them. The charge was framed against them, to which they pleaded not guilty and claimed trial. The appellant was separately charge-sheeted for committing crime under section 15 of the Arms Act. 4. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the appellant and the acquitted co-accused, produced as many as thirteen witnesses. The gist of their statements is as under:- PW-1 Sikandar constable escorted the dead bodies of deceased Yahya, Zohaib and Eisha from the spot to KMC, Peshawar for postmortem examination and brought back their garments and handed over the same to the investigating officer. PW-2 Zahid constable escorted the dead bodies of deceased Mst. Kainat and Shoaib from the spot to KMC, Peshawar for postmortem examination and brought back their garments and handed over the same to the investigating officer. PW-3 Amjad Khan, ASI is the marginal witness to the recovery memos Ex.PW-3/1 to Ex.PW-3/9, vide which, in his presence, the investigating officer made the following recoveries; a) blood through cotton from the places of deceased Yahya, Mst. Kainat, Mst. Eisha, Shoaib and Zohaib and sealed the same into different parcels No.1 to 5 respectively; b) seven and six empties of 9MM from Points No.A & B respectively and sealed into parcel No.6; c) two spent bullets from the places of deceased Yahya and Kainat and two spent bullets from the places of deceased Eisha and Shoaib and sealed the same into parcel No.14; d) bloodstained plastic near the house of deceased and blood through cotton from the side of water channel and sealed the same in parcels No.7 & 8 respectively; e) motorcar bearing registration No.LOG-8001 Suzuki Alto along with its registration copy from the house of deceased Yahya, his CNIC, driving licence, service card and UBL interne master card; f) bloodstained garments of deceased Yahya, Kainat, Eisha, Shoaib and Zohaib, sent by doctor, and selected into parcels No.9 to 13 respectively; g) six mobiles of deceased Yahya with IMEI numbers; h) blood through cotton from the places of deceased Yahya, Kainat, Eisha, Shoaib and Zohaib for the purpose of DNA and sealed the same into parcels No.1-A, 2-A, 3-A, 4-A and 5-A respectively. i) One pair of shoes brown colour from the possession of appellant Junaid having blood traces and sealed the same into parcel No.16. j) one bulb from point-B and one bulb from point-C of the place of occurrence at the pointation of appellant Junaid and sealed the same into parcel No.17. k) investigating officer made addition in the site plan with read ink PW-4 Munk Khan Inspector while partly investigating the case made two applications to CKC vide Ex.PW-4/1 & Ex.PW-4/2 for obtaining IMEI data of mobile set and CDR data of the SIM mentioned therein. He visited the spot, collected blood through cotton from the places of deceased Yahya, Mst. Kainat, Mst. Eisha, Shoaib and Zohaib and sealed the same into parcels No.1-A, 2-A, 3-A, 4A & 5-A respectively vide recovery memo Ex.PW3/6 and sent the same for obtaining the DNA repot from concerned authority vide application, already exhibited as Ex.PW-4/3, report whereof is Ex.PW4/6. He recorded the statements of the complainant and PW Faqir Hussain and vide application Ex.PW4/7, he produced both of them before the learned Judicial Magistrate for recording their statements under section 164 CrPC. Vide application Ex.PW-4/8, he also produced
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both the accused for obtaining their physical custody and accordingly three days' custody was granted. On the pointation of both the accused, this PW made entries in the site plan Ex.PA with red ink and thereafter prepared pointation memo, already exhibited as Ex.PW-3/9. Vide recovery memo already exhibited as Ex.PW-3/8, he took into possession two energy savers one from the veranda and other from the room and sealed the same in parcel No.17, which is Ex.P-1. He also recorded the statements of witnesses and accused under section 161 CrPC. Vide applications Ex.PW-4/9 and Ex.PW-4/10, he sent recovered shoes of appellant Junaid for DNA test and also produced him before the DNA office for DNA analysis, report whereof is already exhibited as PW4/6. Vide application Ex.PW-4/11, he sent to the FSL the received fingerprints of both the accused on simple slip on which report is available as Ex.PW4/12. Vide application dated 27.03.2018, Ex.PW4/12, he made addition of sections 109 / 201 PPC. Vide application Ex.PW-4/13, he produced the accused before the learned JMIC concerned for recording their confessional statements, however, they refused to confess their guilt and were sent to judicial lockup. Vide application, Ex.PW-4/14, he took into possession CDs Ex.PB, consisting of two CDs regarding audio and video of confessional statements of both the accused. Vide application Ex.PW-4/15, he sent already seized pistol and empties for FSL analysis, report whereof is Ex.PW-4/16. He also placed on file postmortem reports of all the deceased and CDR reports along with the family trees Ex.PW-4/17. He recorded statements of all the PWs and after completion of investigation, he submitted the case file to the SHO concerned for submission of complete challan. PW-5 Dr. Saima Noreen, TMO conducted the autopsies of deceased Mst. Eihsa and Mst. Kainat vide postmortem reports Ex.PM & Ex.PM/1 and also endorsed their injury sheets and inquest reports vide Ex.PW-5/1&2 & Ex.PW-5/3&4 respectively. (parentage of deceased Mst. Kainat has wrongly / inadvertently been mentioned as Mujtaba instead of Faqir Hussain in the postmortem report as well as in the statement of this witnesses) PW-6 Khan Zaib, Sub-Inspector recorded the report of complainant Aurangzaib in the shape of murasila Ex.PA/1 and also prepared the injury sheets and inquest reports of all the deceased vide Ex.PW-6/l to Ex.PW-6/10 respectively. He sent the dead bodies to mortuary for postmortem examination and sent the murasila to the police station for registration of case. This PW was re-examined as RePW-6 wherein he disclosed the arrest of the appellant and the acquitted co-accused, prepared their cards of arrest Ex.RePW-6/2 & Ex.RePW-6/3 and recovered a pistol of 9MM along with five live bullets (Ex.PZ) from the possession of the appellant. Recovery memo in this respect is Ex.RePW-6/1. PW-7 Umar Khan Afridi, SI submitted complete challan against accused before learned trial court. PW-8 Faqir Hussain, father of both the deceased ladies, father-in-law of deceased Yahya and maternal grandfather of minors Shoaib and Zohaib charged the appellant and the acquitted co- accused for the commission of the offence. Motive for the offence was alleged to have some domestic dispute between both the brothers i.e. appellant Junaid and deceased Yahya. PW-9 Shaukat Ullah SI partial investigated the case. He prepared the site plan Ex.PW-9/1, took into possession blood through cotton from the places of deceased Yahya, Mst. Kainat, Mst. Eisha, Shoaib and Zohaib and sealed the same into parcels No.1 to 5 respectively; recovered seven and six empties of 9MM from Points No.A & B respectively and sealed into parcel No.6 Ex.P-A/1. Vide recovery memo already exhibited as Ex.PW-3/1, he took into possession two spent bullets from the places of deceased Yahya and Kainat and two spent bullet from the places of deceased Eisha and Shoaib and sealed the same into parcel No.14 Ex.P-A/2. Likewise, vide recovery memo exhibited PW- 3/2, he took into possession bloodstained plastic and blood through cotton from the side of water channel and sealed the same in parcels No.7 & 8 respectively. Similarly, vide recovery memo already exhibited as Ex.PW-3/3, he took into possession motorcar bearing registration No.RC- 8001/LOG along with its registration book from the house of deceased Yahya, his CNIC, driving
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licence, UBL internet master card. Equally, vide recovery memo already exhibited as Ex.PW-3/4, he took into possession bloodstained garments of deceased Yahya, Kainat, Eisha, Shoaib and Zohaib and sealed into parcels No.9 to 13 vide Ex.P-A/4 to Ex.P-A/8 respectively. Vide recovery memo Ex.PW3/5, he took into possession IMEI numbers of deceased Yahya. He received fingerprints from the Incharge Crime Scene, who took the same from the crime scene vide recovery memo Ex.PW- 9/2 and placed the same on file vide Ex.PW-9/3 & 9/4 respectively. Vide application Ex.PW-9/5, he sent parcels No.01 to 05 to FSL. Similarly, vide application Ex.PW-9/6, he sent parcel No.6 to arms expert and through application vide Ex.PW-9/7, he sent parcels No.7 & 8 for DNA analysis. He also prepared fard superdari vide Ex.PW-9/8 and recorded statements of PWs under section 161 CrPC. Thereafter, the case was transferred from him to Munk Khan, SI. PW-10 Zahid constable escorted the dead bodies of deceased Zohaib and Mst. Kainat from the spot to KMC for postmortem examination. After the same, he handed over the dead bodies to their legal heirs while their garments were handed over to the investigating officer in P.S. PW-11 Kaleem Ullah constable alongwith Yasir and Khanzaib Khan arrested the appellant and acquitted co-accused and recovered a pistol of 9MM from the possession of the appellant. PW-12 Dr. Mian Saad Ahmad, Assistant Professor conducted the autopsies of deceased Yahya, Zohaib and Shoaib vide postmortem reports Ex.PM/2, Ex.PW3 & PM/4 and also signed their injury sheets and inquest reports. PW-13 Sajjad Khan SI, on receipt of murasila, incorporated its contents into FIR vide Ex.PW-13/1. The prosecution after abandoning the remaining PWs as unnecessary closed the evidence on 26.07.2022. Out of them, complainant Aurangzaib and PWs Shoaib and Tahseen Ullah were abandoned being won over. 5. On conclusion of prosecution evidence, the appellant and the acquitted co-accused were examined under Section 342, CrPC on 01.08.2022 and 28.07.2022 respectively. They, in their statements, denied the charges, levelled against them and pleaded innocence. They, however, did not opt to lead any evidence in their defence or to appear as their own witnesses in terms of Section 340(2), CrPC. 6. The learned Trial Court, after hearing the arguments of both the parties and on appraisal of evidence, convicted and sentenced the appellant as stated above while acquitted co-accused Ameer Khan from the charges levelled against him through the impugned judgment. Being aggrieved, the appellant against his conviction and Faqir Hussain against acquittal of acquitted co-accused have come to this court through their respective appeals. 7. The learned counsel appearing on behalf of the appellant by referring to the story narrated in the FIR and the statements of the PWs recorded in the court, tried to project the inference that the occurrence has not taken place in the manner as described by the prosecution. They further contended that it is an unseen occurrence and the charge at the doorsteps of the appellant has been flung without any rhyme or reason. The story, they added, also appears to be improbable if seen in the light of statements of material witnesses as well as medical evidence. The learned counsel by referring to star witnesses of the prosecution namely, Aurangzaib, complainant as well as Shoaib and Tahseen, witnesses of recovery memo whereby fingerprints from the spot were lifted, who were abandoned, tried to canvass at the bar that they could have furnished actual story but their non-production would not only militate against the veracity of the prosecution version but also give rise to the inference that they would have gone against the prosecution if they were produced. They further contended that one Muntazir, in whose name the suspected mobile number, was registered, was neither made an accused nor prosecution witness in the case, which itself raise eyebrow about the performance of the investigating officers. Next argued that chain of the circumstantial evidence is totally incomplete as fingerprints were not lifted/secured as per standard protocols and likewise the alleged pistol was not sealed in proper manner, then, what to
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talk of evidentiary value of the same. The learned counsel, by concluding their arguments, contended that the conviction and sentences recorded on the basis of doubtful evidence cannot be maintained. 8. As against that the learned Assistant Advocate General appearing on behalf of the State duly assisted by the learned counsel representing the father of the deceased ladies vehemently argued that it is the case of circumstantial evidence and the entire chain in the shape of recoveries, fingerprints, CDR data etc., is complete insofar as the involvement of the appellant and the acquitted co-accused is concerned as such being consistent and confidence inspiring, has rightly been relied upon by the learned Trial Court. By referring to the contradictions, they contended, that the minor discrepancies may occur in the statements of the witnesses who are perfectly honest. Above all, they, by concluding their arguments, contended that unexplained absconsion of the appellant after the occurrence and despite being sole male member of his family after the murder of his brother, sister-in-law, two minors and sister-in-law of his brother would plug all the loopholes, if any, in the prosecution evidence and bring guilt home to the appellant beyond any shadow of reasonable doubt. They by concluding their arguments submitted that the learned Trial Court has rightly awarded death sentence to the appellant, therefore, it does not call for any leniency or interference in the well-reasoned judgment of the learned Trial Court. In the same breath, the learned counsel representing the father of the deceased ladies vehemently opposed the acquittal of acquitted co-accused as he was the person, who actually, responsible for the entire tragedy and without his facilitation / help / assistance / connivance, the appellant was not able to even think such like brutal act, and as such, he was liable to be given full doze, which fact has not properly been appreciated by the learned trial court while acquitting him from the charges levelled against him. 9. Heard. Record perused. 10. Instant case is the result of an unfortunate unseen occurrence in which five persons, three major and two minors of one and the same family have lost their precious lives who are closely related to the appellant, therefore, we are under legal obligation to carefully re-appraise and analyze the entire evidence so brought on record by the prosecution in order to arrive to a proper conclusion qua the conviction and sentence of the appellant as on one hand, three young persons and two minors had lost their valuable lives while on the other hand a young man, who happens to be their close relative i.e. brother of deceased Yahya has been awarded death sentence on five counts. The inter se relation of the parties is as under:-
Deceased Yahya WithAppellant Junaid Brothers Deceased Yahya and appellant Junaid (brothers of Mst. Nihayat)WithAcquitted co-accused Ameer (husband of Mst. Nihayat).Brothers-in-law. Deceased Yahya WithDeceased Mst. Kainat. Spouses. Deceased Yahya & Ma Kainat WithDeceased minors Shoaib and ZohaibParents Deceased Mst. Kainat. WithDeceased Mst. EishaSisters Deceased Yahya Brother-in-law Deceased Mst. Kainat & Mst. Eisha WithPW Faqir HussainDaughters Deceased minors Shoaib and ZohaibMaternal Grandchildren Deceased Yahya & appellant Junaid WithComplaint Aurangzaib Nephews
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11. According to the prosecution version, complainant Aurangzaib (abandoned PW) on the fateful day on the receipt of information qua the commission of the offence rushed to the house of his nephew deceased Yahya where he found him dead along with his wife Mst. Kainat, sister-in-law Mst. Eisha and two minor sons Shoaib and Zohaib. The complainant neither was present on the spot nor had witnessed the occurrence with his own eyes and as such he is not the eyewitness of the crime and that is how he charged some unknown culprits for the crime in his initial report, which was lodged in the shape of murasila Ex.PA/1 by PW Khan Zaib SI, contents whereof were reduced into FIR vide Ex.PW-13/1. 12. The role of the complainant in the entire episode is nothing but only as an informer. However, the record is completely silent that, who was the person, who first seen the occurrence and informed the complainant about the sad incident. No investigation in this respect had been carried out by the IO of the case nor the complainant disclosed his source of information in his initial report and in his magisterial statement as well, as such, identification of such an important person is still a mystery and its credit definitely goes to the investigating officers, who did not bother to trace him out. Such fact was also established from the cross-examination of Khan Zaib SI (PW-6) in the manner: - It is a fact that as per the Murasila Ex.PA/1, the complainant himself is not the eyewitness of occurrence. It is also correct that as per Murasila, it is not mentioned that who informed the complainant regarding the occurrence. 13. In fact, the case of prosecution is fully based upon circumstantial evidence, as the occurrence is unwitnessed one. What tempts the Court to believe this type of evidence is based upon the maxim that men may lie but circumstances cannot. We rather use this centuries-old wisdom as a touchstone for assessing and evaluating the evidentiary worth of the circumstantial evidence. Inference about the guilt of the accused could well be drawn from the circumstances as are well authenticated. But where the circumstances so reported are tampered with or manufactured and fabricated, then the same cannot be accepted without careful and critical analysis. We are mindful of the fact that in such like cases, for the conviction of an accused exclusively on the basis of circumstantial evidence, the circumstances proved in the case must be irreconcilable with his innocence and the chain of circumstances must be so strong as to rule out any reasonable hypothesis of his innocence and certainly such chain requires to start from the body of the deceased and stop on the neck of the accused in an unbroken manner. Indeed, in the absence of such an unbroken chain, it would be extremely risky rather hazardous to rely upon such circumstantial evidence, which is not of high standard and quality and as such, the courts are supposed to take extraordinary care and caution before relying on the same, particularly by imposing a death penalty on an accused. Azeem Khan & another vs. Mujahid Khan & others (2016 SCMR 274); Nasir Javaid & another vs. State (2016 SCMR 1144) and Ayesha Khatun & another vs. State 11968 PCrLJ (Dacca) 53]. 14. In the case in hand, after the registration of the FIR Ex.PW-13/1 on 20.03.2018, the investigating officer spur into action to nab the actual culprits, started the investigation through different angles being a blind occurrence and that is how adopted a scientific manner for securing fingerprints from the spot. 15. On 20.03.2018, the date when the occurrence took place, the Incharge Crime Scene Unit lifted the fingerprints from the backdoor of the house of deceased Yahya and secured the same through the scotch tape in presence of two witnesses namely, Tehsin Ullah Jan and Muhammad Shoaib, vide Ex.PW-9/2. However, neither the aforesaid Incharge was cited as witness nor was examined before the court and it is also remained a mystery that who called the Crime Science Unit to the spot; who secured the fingerprints and whether he was competent enough to do so or otherwise. When the star person who lifted / secured the alleged fingerprints from the crime scene was not produced
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before the court to be confronted with such evidence, then, a mere positive report of such fingerprints is not sufficient for maintaining conviction under capital charge. State vs. Ilam Din & another [1986 PCrLJ (Lahore) 2072 Perusal of the ibid memo clearly shows that none of the police officials was present at that time during such proceedings that is how the private persons were cited as marginal witnesses of the fingerprints, lifted / secured from the spot. Rather under prescribed rules, it was the bounden duty of the investigating officer to call the mobile forensic lab to respond to the crime scene, which was supposed to work under his supervision insofar as collecting and securing of fingerprints and gathering of other circumstantial evidence from the spot is concerned, but in the case in hand, he did not do so that is how only private persons namely, Tehsin Ullah Jan and Muhammad Shoaib were cited as marginal witnesses of the fingerprints, who too were abandoned by the prosecution being won over, more-so, they did not disclose the factum of securing of the fingerprints from the crime scene which fact is also evident from the testimony of Munir Khan Inspector / I0 (PW-4) wherein, he clearly admitted that:- I have recorded the statement of one Shoaib S/0 Fazal Elahi u/s 161 CrPC who does not mention regarding the fingerprints has been recovered / secured in his presence. 16. We have before us the site plan Ex.PW-9/1 and have perused the same carefully time and again with the support of the learned counsel representing the parties and the worthy AAG for our own satisfaction but we are unable to find a single word or sketch, which could disclose that indeed the alleged fingerprints were lifted / secured from the crime scene by any official in presence of any witness. Meaning thereby that the site plan, which is most essential piece of evidence does not support the prosecution version to that extent. Such fact has also been confirmed from the cross examination of Shaukat Ullah, SI / I0 (PW-9) in the following manner:- It is a fact that the finger prints were not secured by me from the spot rather the same were secured by the official of the crime scene expert. The presence of crime scene officials have not been shown by me in the site plan. It…
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