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Petitioner: NABI GUL VS Respondent: The STATE and another
Court Name: Peshawar High Court Judge(s): Qaiser Rashid Khan, Assadullah Khan Chamkani, Nisar Hussain Khan Title: NABI GUL vs The STATE and another Case No.: Cr. A. No.646-P of 2012 Date of Judgment:2015-06-11 Reported As: 2016 YLR 1013 Result: Appeal dismissed
JUDGMENT
JUDGMENT ASSADULLAH KHAN CHAMKANI, J.---My this common judgment shall dispose of the instant appeal as well as connected Cr.A. No.397-P/2013, as both are stemming out from the judgments of the learned Trial Court dated 13.12.2012, in same FIR No.1612 dated 19.10.2011, registered under sections 302/201/203, P.P.C., at Police Station Charsadda, whereby appellant Nabi Gul has been convicted and sentenced as under:- ' Under Section 302(b), P.P. C.---To undergo life imprisonment for committing the murder of his wife Mst. Fauzia . And to pay compensation Rs .1,00 ,000/- to L.Rs. Of the deceased in terms of S.544-A, Cr.P.C. Or in default thereof to undergo 06 months S.I. Further. ' Under Section 203, P.P.C:--- To undergo 01 year R.I. ' Under Section 13 Arms Ordinance, 1965:- To undergo 02 years R.I. ' Benefit of S.382-B, Cr.P.C. Has been extended to him. 2. The prosecution case is that on 19.10.2011 at 1900 hours, Nabi Gul complainant (appellant-convict herein), in company of dead body of Mst. Fuzia, reported to local police in Charsadda hospital, that on the fateful day he along with his deceased wife was on the way back to home from Charsadda Bazaar on a motorbike registration No.0019-Charsadda and when reached on a metalled road near "Gonga Godar", some unknovin persons called him to stop, but he did not and when he crossed the breaker, a duly armed person, opened fire at them from behind, as a result, his wife Mst. Fuzia got hit and died on the spot while he luckily remained unscathed. He did not disclose any motive or enmity behind the occurrence. Report of the complainant (appellant) was recorded in the shape of murasila Exh.PA/1 by Munir Khan ASI (PW.3). He also prepared injury sheet and inquest report of the deceased Exh.PW.3/1 and Exh.PW.3/2 and shifted her dead body to the mortuary under
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the escort of Maazullah Constable for postmortem examination and sent the murasila to Police Station on the basis of which FIR was registered against unknown accused. 3. Lady Dr. Roobi Mukhtiar SWMO (PW.1), conducted autopsy on the dead body of the deceased on 19.10.2011 at 0715 hours and found the following injuries on her person:-- 1. Firearm inlet wound of about 1/4 x 1/4 inches on back of chest 3 in number at the level of 11th intercontinental space, about 1 towards the left with 1" towards the right, 3rd towards the right 3" lateral and 1" below the above wound. Charring marks present. 2. Firearm exit wound of about 1/2 x 1/2 inches on the upper and medial quadrant of left breast about 2" medial to midline at the level of 3rd intercostals space. 3. Firearm exit wound of about 1/2 x 1/2 "on the left side of left edge of 9th intercostals space. ' Thorax: Except right lung remaining organs of the thorax were found injured. ' Abdomen: Walls peritoneum and diaphragm injured. ' Opinion: According to opinion of the Medical Officer dectased died due to shock and haemorrhage caused to the vital organs in the chest cavities. Probable time between injuries and death has been given as "Instantaneous" while between death and post mortem as "2 hours". 4. Liaqat Khan SI (PW.9) proceeded to the spot and prepared site plan Exh.PB at the pointation of appellant then complainant. During spot inspection, he secured bloodstained earth and pebbles from the place of the deceased vide recovery memo Exh.PW.2/1. He took into possession 2 empties of 30 bore pistol giving fresh smell of discharge vide recovery memo Exh.PW.2/3. Vide recovery memo Exh.PW.2/2 he took into possession motorcycle No.0019-Charsadda from the accused, took into possession the last worn blood-stained garments of the deceased consisting of Qameez, Shalwar, Chadar, Banyan having corresponding cut marks, sent the bloodstained articles to the FSL, result whereof is Exh.PZ. He also sent the empties to the Arm expert for analysis report whereof is Exh.PZ/1. He produced father of the deceased Sahibzada for recording his statement under section 164, Cr.P.C. Before the learned Judicial Magistrate, in which he charged the appellant for committing murder of his daughter. On 24.10.2011, he arrested appellant, obtained his physical remand, interrogated him and on his pointation, recovered a 30 bore pistol as a crime weapon from the house of Gul Rehman, which was produced by said Gul Rehman. He took into possession the pistol vide recovery memo Exh.PW.8/1 and prepared sketch of place of recovery Exh.PW.9/5. He also prepared pointation memo on the pointation of accused Exh.PW.7/1. After completion of investigation he handed over case file to Rokhan Zeb SHO, who submitted challan against the accused/appellant. 5. On receipt of challan by the learned Trial Court, appellant was formally charge sheeted to which he pleaded not guilty and claimed Trial. To bring home the guilt of appellant, prosecution examined as many as nine witnesses. After closure of the prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C., wherein he denied the prosecution allegation and professed his innocence. He, however, neither wished to be examined on oath under section 340(2) Cr.P.C. Nor opted to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced the appellant as mentioned above, hence, these appeals. 6. Learned counsel for the appellant argued that appellant is innocent and has been falsely implicated by Sahibzada complainant (PW.6), his father-in-law on mere suspicions; that from the very first day till his statement under section 342, Cr.P.C. Appellant remained stuck on his stance furnished by him in initial report; that no ocular evidence of to the effect that it was the appellant who committed the murder of the deceased has been brought on record; that there is no circumstantial evidence to make a continuous chain of circumstances to prove the guilt of the
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appellant; that positive FSL report qua empties and the pistol allegedly recovered on the pointation of the appellant, would not advance the prosecution case as neither Gul Rehman who handed over the pistol to the police has been examined as witness nor Saifullah, the alleged friend of the appellant, whom he handed over the pistol in question; that nothing is on the record to prove the alleged motive of strained relation of the appellant with the deceased; that conviction and sentence of the appellant has been recorded by the learned Trial Court on mere circumstantial evidence, but the same by no stretch of imagination is sufficient to make a chain that its one end touch the dead body of the deceased and other, neck of the appellant, therefore, impugned judgment being against the law, facts and principles of appreciation of evidence, is liable to be reversed. 7. Conversely, learned AAG assisted by learned counsel for the complainant contended that it is a case of circumstantial evidence; that false initial report of the appellant, medical evidence in contrast of the version of the appellant; positive FSL report about the crime empties and 30 bore pistol recovered on the pointation of the appellant coupled with motive i.e. Strained relation of the appellant with the deceased are strong circumstantial pieces of evidence which prove the guilt of the appellant up to the hilt; that conviction can be recorded even in a capital charge on the basis of circumstantial evidence; that circumstantial evidence brought on record is cogent, reliable which fully point towards the guilt of accused-appellant. They while supporting the impugned judgment sought dismissal of the appeal. 8. I have given our anxious consideration to the respective arguments advanced from either side and perused the record carefully. 9. Admittedly, this case squarely rests on circumstantial evidence. Initially, the incident had been reported by appellant Nabi Gul himself, wherein he charged unknown oulprit for committing the murder of his deceased wife Mst. Fuzia. Later on, Sahibzada, father-in-law of the appellant, charged the appellant directly in his statement under section 164, Cr.P.C. Recorded on 22.10.2011, for committing the Qatl-e-Amd of his deceased daughter by advancing strained relation of the appellant with the deceased, as motive behind the occurrence. He alleged that appellant used to quarrel with the deceased on account of his illicit relation with a girl, against which his deceased daughter had complained him and also told about the threats of dire consequence on the part of the appellant as stated earlier, this is a case of no ocular account. The learned Trial Court while IA taking into consideration the initial report of the complainant in contrast with medical evidence, recovery of 2 crime empties of 30 bore from the crime, venue and recovery of 30 bore pistol on the pointation of the appellant coupled with positive FSL report, as circumstantial pieces of evidence, recorded his conviction and sentence. 10. There is no cavil to the proposition that conviction can be recorded on the basis of circumstantial evidence and even death sentence can be awarded to an accused on circumstantial evidence, provided the circumstances constitute a continuous chain without missing any link, combined effect of which establishes the guilt of accused beyond any shadow of doubt. This dictum has been laid down by the august Apex court in case titled, "Muhammad Ishaq v. The State" (2009 SCM R 135). The fundamental principle of universal application in cases dependent on circumstantial evidence, is that in order to justify inference of guilt of accused, incriminating fact must be incompatible with innocence of accused or guilt of any other person and incapable of explanation upon any other reason hypothesis than that of his guilt. In such cases it is imperative for the prosecution to prove the alleged circumstances as of conclusive nature to exclude every hypothesis but one proposed to be proved. The circumstances from which an inference adverse to the accused is sought to be drawn must be proved beyond all reasonable doubts and must be clearly connected with the fact sought to be inferred therefrom. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn
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must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. All the Links of circumstances should be so interconnected with each other as to form a continuous chain, one end of which should touch the dead body and the other end should touch the neck of the accused. One single link missing in the chain would entitle the accused to benefit of doubt. 11. Now I have to evaluate the case in hand at the touch stone of the principles settled by the apex Court referred above. The first circumstance, which goes against the appellant and relied upon by the learned Trial Court, is his initial report wherein he charged unknown culprit for committing murder of his wife. I do agree with the findings of the learned Trial Court on this aspect of the case because according to report of the appellant, he along with his deceased wife was on the way back to home from Chars'adda Bazar and when reached the spot, some unknown culprit called him to stop, but he did not, and when he crossed the breaker, a duly armed person, opened fire at them from behind, as a result, his deceased wife got hit and died on the spot. As per autopsy report, the deceased sustained three entry wounds on back of her chest with two exits on the upper and medial quadrant of left breast about 2" medial to midline at the level of 3rd intercostals space and exit wound on left side of left edge of 9th rib. Keeping in view the location of exit wounds on the person of the deceased, the appellant should have also sustained injury with the bullets causing exits in the body of the deceased, as she was sitting behind him on a motorbike, but the appellant has not received a single scratch, much less any firearm injury, therefore, medical evidence negates the version of the appellant. Similarly, the last worn bloodstained clothes of the deceased, having' cut marks and blackening also negates the version of the appellant and shows that the deceased was not fired at from a distance as alleged by the appellant in the site plan, rather from a very close range, because as per medical jurisprudence, blackening is caused in case of fire from a very close range. In such eventualities, it was the appellant to furnish a justifiable explanation about the murder of the deceased because the deceased was in his company at the time of incident, but no explanation, much less tangible has been furnished by him, therefore, this circumstance goes against the appellant. 12. Another circumstantial piece of evidence relied upon by the learned trial Court, is the recovery of 2 empties of 30 bore from the spot and 30 bore pistol, allegedly recovered on the pointation of the appellant. The recovery of 30 bore pistol has been seriously questioned by the defence in cross-examination of the Liaqat Khan SI/I.O. (PW.9). According to his statement during interrogation accused/ appellant disclosed about use of 30 bore pistol in commission of the offence and its delivery to his friend, namely, Saifullah. He deposed that he provided his personal cell phone to the appellant, on which he contacted his friend Saifullah, who told him his presence in hospital with his ailing sister and further told him that the pistol in question was lying in his house and his maternal uncle, namely Gul Rehman present in the house, will hand over the same; that on his information he along with appellant reached the said house; that on knocking the door, said Gul Rehman came out, talked with the appellant and thereafter handed over a 30 bare pistol to him/I.0., which was identified by the appellant to be the, same pistol used by him in the commission of offence. In cross-examination I.O. Deposed that he raided the house of the appellant on 23.10.2011, but nothing incriminating was recovered. He stated that said Saifullah had not disclosed about handing over the pistol to him by the appellant, in his statement recorded by him at first instance. He deposed that he has not initiated any proceedings under section 13 or 16 A.O. Or under any other section of law against said Saifullah nor has he made him as an accomplice nor interrogated him in this regard. He admitted that the pistol has not been recovered from direct possession of the appellant, but was produced by Gul Rehman. He further admitted that he had not sent the empties to the FSL soon after its recovery on 19.10.2011.
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13. About this piece of circumstantial evidence, I have serious reservations which disturb my mind to a great extent. Firstly, if the pistol was handed over by the appellant to his friend Saifullah, why did not Saifullah disclose about its availability with him in his statement recorded by the I.O. At first instance and if said Saifullah was already in the knowledge of pistol and he kept mum, why did not was he proceeded under the relevant law by the I.O. After its recovery from his house at the alleged pointation of the appellant, and thirdly, why was he not made as a witness to the said recovery. No explanation, much less plausible, has been furnished by the prosecution in respect of all these circumstances. Gul Rehman, who allegedly handed over the pistol to I.O., has also not been made as a prosecution witness nor did he appear in the witness box. The testimony of both, Saifullah and Gul Rehman, in such eventualities, was authentic and solid evidence in supports of this piece of circumstantial evidence, but neither any one of them has been examined, nor any proceedings has been initiated against them by the I.O. Which create serious doubt about the mode and manner of the recovery as alleged by the I.O. Besides, why the empties had not been sent to the FSL on the same day of its recovery i.e. On 19.10.2011 for examination as to whether these have been fired from one weapon or more or even just for safe custody till recovery of the weapon of offence, is another disturbing aspect of the incident, which has not been plausibly explained by the prosecution. No record of the mobile data of the I.O. And Saifullah friend of the appellant qua the alleged conversation of the appellant about the weapon of offence has been brought on record to substantiate the version of the I.O. Similarly, no record of patient/sister of Saifullah with whom he was allegedly present in the hospital in connection with her treatment has been brought on record. The empties have been sent, later on, to the FSL on 12.11.2011, i.e. After alleged recovery of pistol, which cast serious doubts about the entire episode of its recovery. 14. In view of the above, I am firm in my view, that the pistol in question has not been recovered on the pointation of the appellant rather the same has been planted against him after thought just to make a strong circumstance in favour of the prosecution case. Exclusion of this piece of circumstantial evidence certainly breaks the chain of circumstances. 15. Similar is the position of motive part of the prosecution case. The stance of father of the deceased about the motive that appellant had illicit relation with a girl, as a result, he used to quarrel with his deceased wife and had threatened her of dire consequence and that his threats had been brought by her in his notice, does not appeal to my mind. Had it been so, firstly, father of the deceased, on the very first day of the incident would have advanced this motive before the I.O. But he did not, secondly, in such eventualities, it cannot be expected that a father would let his daughter at the risk of her life to live with such husband. No shred of evidence is available on file to show any efforts of the arbitrators or family members of the deceased between the two families in respect of the alleged strained relation of the deceased and the appellant. Rather, the peculiar facts and circumstances of the case suggest that the appellant had cordial relation with the deceased because he had taken her on motorcycle to city for the purpose of her checkup. The appellant after the incident did not abscond, rather took the dead body of her deceased wife 'to the hospital and reported the incident. He also participated in the funeral ceremony of his deceased wife. The conduct of the appellant after the incident is a circumstance, which goes in his favour. The circumstances, discussed above, break the chain of circumstances connecting the appellant with the commission of offence. 16. It is settled law that if the evidence does not establish a strong chain of, circumstances which could not be explained away on any hypothesis other than the guilt of the accused, conviction in such eventualities would not be legal because. Circumstantial evidence should point inevitably to the conclusion that the accused and the, accused only is the perpetrator, of the offence and such evidence, should be incompatible with innocence of the accused, which is lacking in the case in
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hand. Here I would refer the view of the llon'ble Supreme Court about circumstantial evidence in the following case:-- "M.D. Nazir Hussain Sarkar and another v. The State" (1969):-"An accused cannot be found guilty unless all reasonable hypothesis, which are consistent with his innocence, have been excluded. ' ADVOCATE-GENERAL, OF EAST PAKISTAN ABDUL MAJID (1970 SCM R 12) "If the evidence does not establish strong chain of circumstances which could not be explained away on any hypothesis other than the guilt of the accused, conviction under section 302, P.P.C. Would not be legal". "A very high quality of evidence is required and chain of events has to be completed with a view to establish guilt of accused beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight and quality of prosecution evidence. Where the prosecution fails to prove circumstances in a manner to make it beyond reasonable doubt, judgment of High Court in rejecting such evidence is in accord with principles recognized for safe administration of criminal justice". (PLD 1986 SC 690). "Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused". (1992 SCM R 1047 and 1999 SCM R 1034) 17. It is also on record that deceased had an unfortunate minor daughter, who had already lost her mother and if the conviction of the appellant recorded by the learned Trial Court on shaky and scanty circumstantial evidence, is maintained, she would also be deprived of her father. 18. For what has been discussed above, I am firm in our view that the prosecution has miserably failed to bring home the guilt of appellant through cogent and confidence inspiring ocular or circumstantial evidence beyond shadow of reasonable doubt. The circumstantial evidence relied upon by the prosecution does not make a chain so that its one end touch the dead body of the deceased and other the neck of the appellant and creates doubts in the prosecution case. It is settled law that one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. The said rule is based on the maxim " it is better that ten guilty persons be acquitted rather than one innocent person be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". Wisdom in this regard can also be derived from the judgments of the apex court in case titled, "Muhammad Khan and another v. The State" (1999 SCM R 1220) and case titled, "Muhammad Ikram v. The State" (2009 SCM R 230). The learned trial Court has not evaluated the evidence in its true perspective and thus reached to an erroneous conclusion by holding the appellant guilty of the offence. 19. Resultantly, I allow this appeal, set aside the conviction and sentences of the appellant and hereby acquit him of the charge leveled against him. He be set at liberty forthwith, if not required in any other case. Sd/- ' Assadullah Khan Chamkani, J. ' Jalaluddin Akbar Azam Gara for Appellant. ' Ghulam Mohyuddin Malik for the Complainant. ' Mian Arshad Jan, A.A.-G. For the State. Date of hearing: 22nd 'April, 2015. JUDGMENT
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QAISER RASHID KHAN, J.---Through this single judgment we intend to dispose of Cr.A No.646-P of 2012 and Cr.A No. 397-P/2013 as both are arising out of case FIR No. 1612 dated 19.10.2011 under sections 302, 201, 203, P.P.C. Read with section 13 A.0, Police Station Charsadda. 2. Appellant Nabi Gul stood his trial in the court of learned Additional Sessions Judge-V, Charsadda for offences under sections 302, 201, 203, P.P.C. And section 13 A.0 and on being found guilty he was convicted and sentenced under section 302(b), P.P.C. To life imprisonment and also to pay Rs.100000/- as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. Or in default to undergo further six months' S.I. He was further convicted under section 203, P,P.C. And sentenced to one year R.I. And under section 13 A.O. To two years' R.I. The sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C. Extended to him vide impugned judgment dated 13.12.2012, hence this appeal. 3. Facts in brief as per FIR are that on 19.10.2011 the accused-appellant (then complainant) brought the dead body of his deceased wife Mst. Fauzia to Casualty Hospital Charsadda and reported the matter to the local police to the effect that on the fateful day at 18:30 hours he along with his deceased wife were proceeding back home from Tehsil bazaar on his motorcycle bearing registration No.0019-Charsadda and when reached the crime spot some unknown persons from the nearby sugarcane crop called him to stop and when they crossed the breaker they were fired at from back side by an armed person and as a result his wife was hit and died on the spot while he escaped unhurt. He further stated to have no enmity with anyone and charged unknown persons for the murder of his wife. The report was recorded in the shape of murasila Ex.PAll and sent to the Police…
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