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Petitioner: Obaid Ullah VS Respondent: Mst. Gul MeenaHonorable Justice Sahibzada AsadullahShakeel Ahmad Khan Hashtnagri
2025 M L D 1773 [Peshawar] Before Sahibzada Asadullah and Aurangzeb, JJ Obaid Ullah---Appellant Versus Mst. Gul Meena and others---Respondents Criminal Appeal No. 37-P with Murder Reference No. 01 of 2024, decided on 25th March, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 311 & 325---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, attempt to commit suicide, possession of illicit weapon---Appreciation of evidence---Accused-father was charged for committing murder of his minor daughter by slaughtering her with a dagger/churri---Record showed that soon after the matter was reported, the dead body was discovered after few hours of the report, but record was silent regarding the source of information and the complainant could not tell that how was he informed regarding the fact that the dead body was that of his daughter and that who identified her before the complainant was informed---Said uncertainty regarding the source of information to the complainant put the law enforcement agency on guard regarding the connectivity of the appellant with the tragic incident---Suspicion grew stronger, when wife of the appellant recorded her statement 164, Cr.P.C., where she explained that how the deceased left the house and subsequently it was she who charged the appellant for the murder of the deceased---Appellant was arrested and it was during investigation that he led the police party to the place of occurrence and he helped the Investigating Officer for making addition in the site plan---Moreover, it was appellant on whose pointation the dagger/churri was recovered a little away from the place of occurrence and the same was taken into possession---Appeal against conviction was dismissed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 311 & 325---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, attempt to commit suicide, possession of illicit weapon---Appreciation of evidence---Recovery of weapon of offence and a pistol on the pointation of accused---Reliance---Scope---Accused-father was charged for committing murder of his minor daughter by slaughtering her with a dagger/churri---As the weapon of offence was recovered from a field and as the field was situated away from the place where the dead body was found, so such a recovery, that too, on the pointation of the appellant had strengthened the case of the prosecution---As the place wherefrom the dagger was recovered was not in the knowledge of the local police and the local police had not visited the same, so the recovery on the pointation of the appellant had confirmed that the same was in the knowledge of the appellant and as that recovery was made on his pointation, so under Art.40 of the Qanun-e-Shahadat, 1984, the same could be taken into consideration---Matter did not end here, rather the appellant led the police party to the house of one from whom the pistol was barrowed and it was the said person who handed over the pistol to the Investigating Officer with a stuck bullet in its chamber---Though the pistol was never used in the commission of the offence, yet as per narration of the appellant he collected the same so that after killing the deceased he could commit suicide---Recovery of the pistol with a stuck bullet in its chamber had supported the case of the prosecution and was a circumstance which could be taken into consideration---Investigating Officer also recorded the statement of a shopkeeper, from whose shop the dagger/churri was purchased---Said shopkeeper identified the dagger, as the one purchased from his shop---Appeal against conviction was dismissed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 311 & 325---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, attempt to commit suicide, possession of illicit weapon---Appreciation of evidence---Confessional statement of the accused---Voluntariness---Accused-father was charged for committing murder of his minor daughter by slaughtering her with a dagger/churri---Judicial Magistrate, who recorded the confessional statement of the appellant, explained that how the appellant was brought into his Court; that how he introduced himself and warned the appellant of the consequences of his statement and he also explained that it was after the willingness of the appellant was obtained, his statement was recorded---Questionnaire appended with the statement was taken into consideration, where the Court, despite effort, could not come across any illegality, rather it confirmed that the relevant questions were put and the relevant answers were obtained---Confessional statement was self- explanatory, where the appellant explained that how the deceased was brought to the spot, how was she killed and how the dead body was brought to the hospital---Appellant further explained that what prompted him to kill the deceased and he also confirmed that right from the day of his marriage he was suspecting his wife of enjoying illicit relationship in the area---Confessional statement could not give an impression that it was obtained because of influence and torture---The confessional statement got support from the recoveries made on the pointation of the appellant and also from the statements recorded by different persons in respect of different events---Appeal against conviction was dismissed, in circumstances. (d) Criminal trial--- ----Circumstantial evidence---Scope---In case of circumstantial evidence much is needed from the prosecution to collect and the Investigating Agency is under the obligation to create a well-built chain with no link missing, so that its one end would touch the dead body of the deceased and the other the neck of the accused. Muhammad Latif v. The State PLD 2008 SC 503 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 311 & 325---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, attempt to commit suicide, possession of illicit weapon---Appreciation of evidence---Medical evidence supporting the ocular account---Accused-father was charged for committing murder of his minor daughter by slaughtering her with a dagger/churri---Medical evidence was in harmony with the confessional statement of the appellant, as the appellant admitted to have cut the throat of the deceased which was confirmed by the Medical Officer---Recovery of dagger and its identity by the shopkeeper from whose shop the same was purchased, was another factor which had granted support to the case of the prosecution---When the medical evidence was in harmony with the ocular account and when the circumstantial evidence was consistent, then no option was left with the Court to favour the appellant, that too, at the cost of the prosecution---Appeal against conviction was dismissed, in circumstances. Aqil v. The State 2023 SCMR 831 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 311 & 325---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd, attempt to commit suicide, possession of illicit weapon---Appreciation of evidence---Motive proved---Accused-father was charged for committing murder of his minor daughter by slaughtering her with a dagger/churri---Prosecution could not bring independent evidence to prove its motive, but as the motive was lying hidden in the mind of the appellant, so it was the appellant who disclosed the same and it was his confessional statement from where it could be gathered---Unfortunate on part of the appellant that it was his suspicion which turned to be the cause of brutal killing of the deceased---Being a father had he no suspicion, then there was no reason for him to kill, but it was the suspicion of legitimacy over the child which prompted him to kill the deceased---Manner in which the deceased was butchered, was a circumstance which indicated the hatred which the appellant had and it did tell that the appellant without asking for clarity committed the offence---Motive was fully proved, not only from the circumstances of the case, but also from the confessional statement of the appellant and as such the same was rightly taken into consideration---Circumstances established that the appellant could not succeed in making out a case for the indulgence of the High Court---Appeal against conviction was dismissed, in circumstances. Hayat Muhammad v. The State through Additional Advocate General, Khyber Pakhtunkhwa and another 2021 SCMR 1831 rel. Shakeel Ahmad Khan Hashtnagri for Appellant. Niaz Muhammad, A.A.G for the State. Arbab Sheraz Khan for the Complainant. Date of hearing: 20th March, 2025. Judgment Sahibzada Asadullah, J.---Through this criminal appeal, the appellant Obaid Ullah has questioned the legality and validity of the judgment dated 06.01.2024, rendered by the learned Additional Sessions Judge-II/Model Criminal Trial Court, Charsadda, delivered in case FIR No.453, dated 12.07.2022, under sections 302/311/325, P.P.C read with 15-AA, registered at Police Station Prang Charsadda, whereby the appellant was convicted and i sentenced in the following manner: - "Death under section 302(b), P.P.C as Ta'azir with the direction that he be hanged by neck till he is dead. Execution of the sentence shall be subject to the confirmation by the Hon'ble Peshawar High Court, Peshawar under section 374 Cr.P.C. The convict shall also to pay fine to the tune of Rs. 500,000/- (rupees five lac) to the legal heirs of deceased. The amount of fine realized, shall be paid to the legal heirs of deceased, as compensation under section 544A, Cr.P.C. In case of non-payment of fine, the convict Obaid Ullah, shall further undergo simple imprisonment for a term of six (06) months. The amount of fine shall be recoverable as arrears of land revenue from the person and estate of the convict. The convict shall further undergo rigorous imprisonment for one year and fine of Rs. 50,000/-(rupees fifty thousand) under section 325, P.P.C/15-AA. In case of non-payment of fine, convict shall further undergo for one-month simple imprisonment." 2. The concise facts giving rise to the present case as per prosecution story narrated in the FIR are that on 11.07.2022 at about 03:00 hours, father of minor Maryam namely Obaid Ullah son of Shakir Ullah, reported the matter to the police in the casualty of DHQ, Hospital, Charsadda to the effect that on 11.07.2022 at 18:30 hours his minor daughter namely Maryam left her house for playing, however, after sufficient time she did not return back to her house, so he started search and inquiry about her minor daughter and during search he received information that his minor daughter Maryam is lying murdered at the place of occurrence. In pursuance to such information he rushed to the spot, where he found the dead body of his minor daughter slaughtered with dagger/churri by unknown accused. The minro/deceased was shifted to the Children Hospital Rajer, Charsadda with the help of relatives for initiating legal proceedings. As per father of minor of the deceased he has no enmity with anyone. Initially, father of the minor Maryam charged unknown accused for the commission of the offence, but subsequently after inquiry Mst. Gul Meena (mother of the deceased Maryam) charged her husband Obaid Ullah in her 164, Cr.P.C statement recorded before the Judicial Magistrate, hence the instant case. 3. On arrest of the accused and completion of investigation, complete challan was submitted to the Court. The provisions of Section 265-C, Cr.P.C were complied with. Charge was framed against the accused, to which he pleaded not guilty and claimed trial. In order to substantiate its claim, the prosecution produced and examined as many as 13 witnesses and after closure of prosecution evidence, statement of accused was recorded under section 342, Cr.P.C, wherein he denied the allegations and professed his innocence, however, neither he wished to be examined on oath under section 340(2), Cr.P.C, nor desired to produce evidence in defence. The learned trial Court on conclusion of the trial, convicted and sentenced the accused-appellant in the manner as mentioned in the early part of the judgment, hence, the instant appeal. 4. She went missing, but did not return and it was in the morning that her dead body was found lying in a deserted area. She was hardly five years, but she was slaughtered and till some time the killer was not known. The dead body was received in Children and Women Hospital, Charsadda, where the matter was reported. The injury sheet was prepared and the dead body was sent for postmortem examination. The Investigating Officer visited the spot and on the pointation of the complainant now appellant, prepared the site plan. During spot inspection blood was collected from the spot and the Investigating Officer also took into possession a bottle bearing the monogram of Sting. The matter was investigated and the statement of the wife of the appellant was recorded, who was suspecting the appellant and she also disclosed that the deceased left house in the company of the appellant, but she did not return, her statement was also recorded under section 164, Cr.P.C, where she charged the appellant for the killing of the deceased. The appellant was arrested and his physical custody was requested. He led the police party to the place of occurrence. On his pointation a dagger/churri was recovered from the fields of one Azam Khan, the same was taken into possession. He also disclosed the name of the person from whom the dagger was purchased and he also led the police party to the house of one Gohar and a .30 bore pistol with a stuck bullet in its chamber was taken into possession. The accused opted to confess his guilt, so he was produced before the Court of Judicial Magistrate, where he recorded his statement. The Investigating Officer also recorded the statement of the person from whose shop the dagger was purchased and he also recorded the statement of the person from whose house the pistol was recovered. The appellant was committed for trial and on conclusion of the trial was convicted and sentenced vide the impugned judgment. 5. The learned trial Court took into consideration the evidence on file along with the statements of the witnesses and after applying its judicial mind to the circumstances of the case, it held the appellant responsible for the killing of the deceased. The unfortunate incident is unique, as a father is charged for the murder of his daughter. As the unfortunate deceased was slaughtered, so this Court is to see as to whether a real father can go to such an extent and that whether the cause of killing was the suspicion regarding her legitimacy. As the prosecution case is hinging upon the circumstantial evidence, so this Court is to see as to whether the prosecution succeeded in collecting strong pieces of evidence and that whether the same could point towards the guilt of the appellant. In order to appreciate the peculiar circumstances of this case, we deem it essential to re-consider the statements of the witnesses and to re-appreciate the evidence on file. 6. The points for determination before this Court are; as to whether the incident occurred in the mode, manner and at the stated time; as to whether the prosecution could bring on record independent witnesses in support of its claim; as to whether the medical evidence supports the case of the prosecution; as to whether the confessional statement is true and voluntary and as to whether the prosecution succeeded in bringing home guilt against the appellant. 7. There is no denial to this fact that the incident went unwitnessed, as regarding missing of the deceased it was the appellant who reported the matter in the shape of DD No.26 dated 11.07.2022. After the matter was reported, search was started for the deceased and interestingly on the same very night her body was found at the place of occurrence and as such the same was brought to the hospital, where the matter was reported. This Court is to see as to who informed the complainant regarding the dead body lying on the spot and that what places were visited by the complainant before the dead body was discovered. As admittedly, record is silent in that regard and as admittedly no witness could be pointed out on whose information the dead body was found, so this Court is to see that who informed the complainant and that who accompanied the complainant to the place of occurrence, wherefrom the dead body was shifted to the hospital. It is interesting to note that soon after the matter was reported, the dead body was discovered after few hours of the report, but record is silent regarding the source of information and the complainant could not tell that how was he informed regarding the fact that the dead body was that of his daughter and that who identified her before the complainant was informed. It is this uncertainty regarding the source of information to the complainant which put law enforcement agency on guard regarding the connectivity of the appellant with the tragic incident. The suspicion grew stronger, when wife of the appellant recorded her statement 164, Cr.P.C, where she explained that how the deceased left the house and subsequently it was she who charged the appellant for the murder of the deceased. The appellant was arrested and it was during investigation that he led the police party to the place of occurrence and he helped the Investigating Officer for making addition in the site plan. It was he on whose pointation the dagger/churri was recovered a little away from the place of occurrence and the same was taken into possession. As the weapon of offence was recovered from a field and as the field was situated away from the place where the dead body was found, so such a recovery, that too, on the pointation of the appellant has strengthened the case of the prosecution. As the place wherefrom the dagger was recovered was not in the knowledge of the local police and the local police had not visited the same, so the recovery on the pointation of the appellant has confirmed that the same was in the knowledge of the appellant and as this recovery was made on his pointation, so Under Article 40 of the Qanun-e-Shahadat Order, 1984, the same can be taken into consideration. The matter did not end here, rather the appellant led the police party to the house of one from whom the pistol was barrowed and it was the said person who handed over the pistol to the investigating officer with a stuck bullet in its chamber. Though the pistol was never used in the commission of the offence, yet as per narration of the appellant he collected the same so that after killing the deceased he could commit suicide. The recovery of the pistol with a stuck bullet in its chamber has supported the case of the prosecution and it a circumstance which can be taken into consideration. It is pertinent to mention that the investigating officer also recorded the statement of one Jan Qadir, a shopkeeper, from whose shop the dagger/churri was purchased. It is pertinent to mention that the shopkeeper was asked to visit the police station, where he identified the dagger, as the one purchased from his shop. As the case of the prosecution is hinging upon the circumstantial evidence, so the investigating agency slowly and gradually started collecting the same and till this time the most valuable and most important pieces of evidence could be collected. 8. When the physical custody of the appellant was requested, he was investigated and apart from the recoveries on his pointation, he opted to confess his guilt, so he was produced before the Court of competent jurisdiction. The confessional statement of the appellant was recorded, where he explained that what led him to kill the deceased and he also explained the circumstances in which the deceased was brought to the place, where she was killed and he also explained that what did he do after killing the deceased. It is interesting to note that while confessing his guilt, he explained the cause of killing and he also confirmed the persons from whom the pistol was barrowed and the dagger was purchased. This Court is to see that whether the confessional statement is true and voluntary and this Court is to ascertain that while recording the statement the learned Judicial Magistrate could adhere to the requirements prescribed by the law and the guidelines issued by superior Courts from time to time. The Judicial Magistrate was examined as PW-11, who explained that how the appellant was brought into his Court; that how he introduced himself and warned the appellant of the consequences of his statement and he also explained that it was after the willingness of the appellant was obtained, his statement was recorded. The questionnaire appended with the statement was taken into consideration, where this Court, despite effort, could not come across any illegality, rather it confirms that the relevant questions were put and the relevant answers were obtained. The crucial point for determination before this Court is that whether the confessional statement is voluntary and true. As the appellant is the father of the unfortunate deceased and as the appellant surfaced as accused after due satisfaction, so this Court is to see that whether the appellant was influenced to record his statement and that whether the same was obtained through coercion. The confessional statement is self-explanatory, where the appellant explained that how the deceased was brought to the spot, how was she killed and how the dead body was brought to the hospital. He further explained that what prompted him to kill the deceased and he also confirmed that right from the day of his marriage he was suspecting his wife of enjoying illicit relationship in the area. The confessional statement could not give an impression that it was because of influence and because of torture obtained. The confessional statement gets support from the recoveries made on the pointation of the appellant and also from the statements recorded by different persons in respect of different events. No mala fide could be alleged to the prosecution, as the deceased was no other than the real daughter and that nobody was interested for his false implication, even his own wife recorded her statement with the investigating officer and thereafter under section 164, Cr.P.C before the Court of competent jurisdiction. She also appeared before the learned trial Court, where her statement was recorded as PW-5, she was put to searching cross-examination, but nothing detrimental could be extracted from her mouth, which would convince otherwise. The person from whom the pistol was barrowed, the shopkeeper from whose shop the dagger was purchased, were examined, but no malafide could be attributed to these witnesses. It troubles the judicial mind of this Court that had the appellant been not in the knowledge of the place, where the dead body was disposed of, then it was hard for the prosecution to discover the same, but it was the appellant who went to the spot, collected the dead body and brought the same to the hospital. The appellant right from the beginning till the end could not give the name of his relatives who accompanied him in searching the deceased and even no witness came forward to claim that the dead body was recovered in the company of the appellant. As the house of the appellant was shown situated 03/04 Kilometers away from the place of the recovery, so it is for the appellant to tell that how he came to know regarding the presence of the dead body, in an area which was situated away from the approach of the general public. The quick succession of events has left less to the favour of the appellant, rather the same suggests that neither any consultation was made by the witnesses to implicate the appellant, that too, for his no fault and that nothing could be brought on record which would suggest that the investigating agency had an interest to bring a false charge against the appellant. Not only the dead body was found lying away from the village, but it was on pointation of the appellant that the dagger was recovered from the nearby field, the same was taken into possession and lastly was identified by the shopkeeper from whose shop the same was purchased. When the circumstantial evidence is looked into in light of the confessional statement of the appellant, no ambiguity is left in holding that the confessional statement and the circumstantial evidence are in line and it is the consistency between these two essential pieces of evidence which established the…
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