Full Judgment Text & Judicial Ruling

2025 Y L R 2065 [Peshawar (D.I Khan Bench)] Before Fazal Subhan and Dr. Khurshid Iqbal, JJ Ghulam Saeed---Appellant Versus The State and another---Respondents Criminal Jail Appeal No. 30-D with Murder Reference No. 03-D of 2024, decided on 16th October, 2024. (a) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account proved---Accused was charged for committing murder of his wife/sister of the complainant------Ocular account had been furnished by complainant and son of deceased---Complainant in his deposition denied the suggestion that he lodged a false report due to some grudges---Complainant was not further asked as to what the grudges were and what was its background---Complainant's deposition depicted that on the very day of the occurrence, he visited the house of the victim around 12.00 noon, where the victim complained that the appellant was quarrelling with her---Appellant was not present in the house at that point of time---Complainant contacted appellant via his cell phone, but couldn't reach him---Complainant then, obtained his other active cell phone number from his son, and called him---Appellant told him that he would return home late, however complainant remained in the house till 02.00 pm, and then left---In the said circumstances, there was no indication of complainant's ill will against the appellant---Neither the complainant nor the eye-witness, being son of the appellant and the victim, could have had any mala fide---Complainant was also cross-examined on certain other aspects, such as, cruel conduct of the appellant and lodging of the report in the hospital---As regards the former, complainant stated that the appellant would usually beat the victim---Complainant, however, admitted that the victim never sought dissolution of marriage---Nor did victim make any report to the police against the appellant---Non-seeking of dissolution of marriage and/or not complaining against the cruel conduct of a husband to the police couldn't be seen as a clear negation of the fact of cruel conduct, if it was otherwise established from evidence---Circumstances established that the prosecution had proved its case against the appellant, however, due to some extraneous circumstances, the death sentence was altered to sentence for life imprisonment---Appeal was dismissed with said modification in sentence. (b) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence---Reliance---Accused was charged for committing murder of his wife/sister of the complainant---Record showed that blood stained 'pawa', as one of the weapons of the offence, was recovered by the Investigating Officer---Police Constable furnished evidence of the factum of its recovery as one of the marginal witnesses of the recovery memo.---Said witness also took the blood stained 'pawa' along with blood stained earth to the Forensic Science Laboratory, which returned a positive report of both to the effect that it was human blood and of the same group---Said witness stated that parcels containing blood stained earth and blood stained 'pawa' were handed over to him on 03.10.2021, i.e., the third day of the occurrence---Forensic Science Laboratory Reports reflected that said witness arrived there on 04.10.2021---Thus, it stood established that on the third day-within the required 72 hours, witness took the said articles to the Forensic Science Laboratory---Recoveries were, thus, proved---Circumstances established that the prosecution had proved its case against the appellant, however, due to some extraneous circumstances, the death sentence was altered to sentence for life imprisonment---Appeal was dismissed with said modification, in sentence. (c) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Accused was charged for committing murder of his wife/sister of the complainant---From the statements of complainant and son of the victim, it was clear that the conduct of the appellant with the victim remained cruel for quite some time---Victim paid the price of her life in the shape of her brutal murder---Reason for cruel conduct of appellant, however, remained shrouded in mystery---Circumstances established that the prosecution had proved its case against the appellant, however, due to extraneous circumstances, the death sentence was altered to sentence for life imprisonment---Appeal was dismissed with said modification, in sentence. (d) Penal Code (XLV of 1860)--- ----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Plea taken by appellant in his statement recorded under S.342, Cr.P.C---Scope---Accused was charged for committing murder of his wife/sister of the complainant---In his statement under S.342, Cr.P.C., the appellant was shown the evidence indicating that he was present on the day of the occurrence in his house along with his wife (victim) and children---Appellant replied that he was not present in his house at the time of the occurrence, and that he was out of the city for doing his labour job---Appellant also replied that he participated in the victim's funeral prayer but further stated that due to fear, he left the house, and did not appear before the police---Replies of appellant were contradictory---If he was out of the locality on that day, how, then, did he manage to attend the funeral prayer---In poof of such plea, neither appellant opted to record his statement on oath under S.340(2), Cr.P.C., nor did he avail an opportunity to prove the plea of his absence from his house---Article 122 of Qanun-e-Shahadat, 1984, requiring evidential burden of proof, would trigger only when appellant indicated a fact especially in his knowledge---In that context, the appellant could have, at least, offered some explanation as to why and by whom his wife had been done to death inside his house---Statement of appellant that he ran away due to fear of police further supported the prosecution's stance that he committed the murder---Circumstances established that the prosecution had proved its case against the appellant, however, due to some extraneous circumstances, the death sentence was altered to sentence for life imprisonment---Appeal was dismissed with said modification, in sentence. Neel Kumar's v. State 2012 rel. (e) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Mitigating circumstances---Sentence, quantum of---Accused was charged for committing murder of his wife/sister of the complainant---It was reflected from the evidence that the appellant was a poor labourer, having 10 children and perhaps no house of his own---In the absence of any specific reason, cruel conduct of appellant might be a matter of personal deposition either in addition to, or over and above his economic hardship---In this age of distressing inflation when even the middle class of our society is fighting hard to earn two-time meals for their children, let alone other necessities such as health and education the head of a large family like the present one remained always in the grip of mental stress to make ends meet---Day of the unfortunate occurrence was the second day of the family having shifted to their one-room house where the house-hold articles were lying scattered---Such a situation was a potential source of disturbance and mental stress---Late arrival of son of appellant and deceased at home on the day of occurrence that led to the happening of the unfortunate occurrence, definitely demonstrated a sudden heat of passion rather than a pre-meditated design of appellant to kill his wife---In such situations, imprisonment for life might serve the ends of justice---Circumstances established that the prosecution had proved its case against the appellant, however, due to extraneous circumstances, the death sentence was altered to sentence for life imprisonment---Appeal was dismissed with said modification in sentence. Saif-ur-Rehman Khan for Appellant. Ghulam Muhammad Sappal, Addl: A.G. for the State. Saleemullah Khan Ranazai for the Complainant. Date of hearing: 16th October, 2024. Judgment Dr. Khurshid Iqbal, J.---The appellant Ghulam Saeed was tried on the charge of qatl-i-amd (murder) of his wife Naimat Bibi (victim). By his Judgment dated 19.03.2024, the learned Additional Sessions Judge-II/Judge GBV (trial Court) in Dera Ismail Khan (D.I.K) founding him guilty for the murder, convicted and sentenced him to death as ta'zir under section 302(b) of the Pakistan Penal Code, 1860 (P.P.C). He was also held liable to pay Rs. 20,00,000/- as compensation to the legal heirs of the victim within the meaning of section 544, Criminal Procedure Code, 1898 (Cr.P.C.) recoverable as arrears of land revenue; and for want of property, was to undergo simple imprisonment for six months. 2. The learned trial Court sent Murder Reference # 03 of 2024, dated 22.03.2024, to this Court, under 374, Cr.P.C. for confirmation or otherwise of the sentence of death. The appellant filed appeal against # 30 of 2024 against his conviction and sentence. 3. One Said Karam, brother of the victim (complainant/PW8) reported the occurrence to the police in DI Khan's Civil hospital at 18.30 hours on 30.09.2021 where he shifted the dead body from the house of the appellant in village Saggu Janubi. He told to the police that on the day of the occurrence, he was in village Girsal Band Kurai in connection with earning livelihood when he got information that the appellant killed the victim in a residential room of his house. He rushed to the house of the appellant. He found his sister (victim) seriously injured and dead there. On query, he was informed that at 03.30 pm, the appellant, in sudden heat of passion at some issue, hit the victim at her head by throwing a wooden leg of a cot (Urdu: pawa) due to which she got seriously injured that resulted in her death. He stated that the occurrence might have been witnessed by someone. He added that for the last some days, matrimonial relations between the appellant and the victim were strained. He charged the appellant for murdering the victim by hitting her with pawa and knife. On the basis of that report, the case in hand was registered in the Cantonment police station at # 539. 4. Sub-Inspector Asmatullah (PW11), the In-charge of investigation in the police station, visited the house-the place of the occurrence-where Abdul Manan (PW7), son, and Ms. Roza Bibi, daughter of the victim, were present. PW7 showed to him the place of the occurrence of which he prepared a site plan (ExPB). He recovered some blood from the place of the victim and the blood stained pawa from the place of the occurrence. He prepared memos. of those pieces of evidence in the presence of witnesses, sealed them and forwarded them to the Forensic Science Laboratory (FSL) for-chemical examination. He also took some photographs of the crime scene. He recorded statements of PW7 and Ms. Roza Bibi under section 161, Cr.P.C, He, however, didn't recover the knife, the other weapon of the offence. The post-mortem report confirmed that the death was caused due to hit by blunt and sharp objects on the head of the victim. It further confirmed that the death was caused within 10-15 minutes because of such serious injuries as shattered temporal bone and leaking out of the brain matter. The FSL also returned positive reports about the blood and blood stained pawa. 5. At the commencement of the trial, copies of relevant documents and statements were provided to the appellant under section 265-C, Cr.P.C. Charge was framed against the appellant, to which he pleaded not guilty and claimed trial. At the trial, Abdul Manan son of the victim, Siad Karam, the complainant, and Sub-Inspector Asmatullah were examined as PWs 7, 8 and 11, as the star witnesses of the prosecution. Other PWs were formal. They included Dr. Tehreem, Medical Officer, who conducted post-mortem examination of the dead body of the victim, and those of recoveries, the carrier of the murasila to the police station and the official who converted the murasila to the FIR. Ms. Roza Bibi, daughter of the victim was abandoned. The appellant was examined under section 342, Cr.P.C., in which he was confronted with the prosecution evidence. He, however, didn't opt to record statement on oath under section 342, Cr.P.C., and/or to produce evidence in defence. 6. We heard Mr. Saif-ur-Rahman Khan, learned counsel for the appellant, Mr. Ghulam Muhammad Sappal, learned Addl: A.G. assisted by Mr. Saleemullah Khan Ranazai, learned private counsel for the complainant-party and perused the record carefully. 7. Key arguments learned counsel for the appellant advanced were that PW7 was not mentioned in the murasila as an eye-witness. PW8 didn't mention who informed him about the commission of the offence. PW7 and Ms. Roza Bibi and other children, allegedly shown as present at the place of the occurrence, were minors. PW7 didn't support the stab injury on the body of the victim. PW8 visited the house of the parties on the day of the occurrence before the occurrence and that he, being brother of the victim, is an interested witness. The knife was not recovered. He said the victim never reported to the police the alleged cruel conduct of the appellant; nor did she file a suit for dissolution of marriage. 8. The learned Addl: A.G and the learned private counsel for the complainant argued that an FIR is not a compendium of detailed facts of a criminal occurrence and that it could be lodged by anyone who receives such information. PW7 is son of the parties, no mala fide at all could be attributed to him, they maintained. As regards his presence at the place of the occurrence, they further maintained that it not only remained unimpeached, but was rather confirmed under cross-examination. They also negated the argument about the complainant, arguing that no worth while mala fide was attributed to him. Another significant point they strived to bring home was that the appellant failed at least to offer some explanation about the unnatural death of his wife under Article 122 of the Qanune-Shahadat Order, 1984 (QSO). 9. We carefully considered arguments of learned counsel for the parties, perused the record and the case law produced which we shall refer to at appropriate places in this opinion. 10. The points for determination are: firstly, whether, on reappraisal of evidence, the prosecution has proved the charge beyond reasonable shadow of doubt; secondly, if the answer is yes, whether the punishment awarded is just and proper in the given circumstances of the case. 11. We propose to reappraise the evidence by breaking down the case in the following parts. Ocular account. Recoveries. Medical evidence. Motive. The evidentiary burden: Article 122 QSO. Ocular account 12. We shall begin with the main argument of learned counsel for the appellant that the names of the eye-witnesses were not mentioned in the murasila/FIR. Indeed, the complainant Said Karam (PW8) did not mention the names of Abdul Manan (PW7), the son, and Ms. Roza Bibi, the daughter of the victim, in the first information of the crime he reported to the police in the shape of a murasila. PW8 is not the eye-witness of the occurrence. All that he furnished as first information of the offence was that while present in village Girsal Bund Kurai, he received information about the murder of his sister (victim). He rushed to the house of the victim in village Saggu Janubi, where he found her lying critically injured and dead in her residential room. Though in his statement before the trial court, he deposed that when he reached the house of the victim, he inquired from the children of the victim, who told him that the appellant (their father) killed her (the victim/their mother). The fact remains that he didn't name them in the first report. While under cross-examination, he replied that when he reached the house of the victim, PW7 told him the story of the commission of the offence and that while he was lodging the report in the hospital, PW7 was not present there. He admitted that he didn't specifically mention in his report in the hospital as to who informed him about the occurrence. He, however, told under cross-examination that a neighbour of the appellant informed him at about 04.30 pm, whose name he couldn't disclose. He denied a suggestion that he lodged a false report due to some grudges. He was not further asked as what the grudges were and in which background. It follows that no mala fide was established on his part. His deposition depicts that on the very day of the occurrence, he visited the house of the victim around 12.00 noon, where the victim complained that the appellant was quarrelling with her. The appellant was not present in the house at that point of time. He contacted him via his cell phone, but couldn't reach him. He, then, obtained his other active cell phone number from his son Rauf, and called him. The appellant told him that he will return home late. He remained in the. house till 02.00 pm, but left. In these circumstances, there is no indication of his ill will against the appellant. Nor did the appellant spell out any such ill will. 13. Case law would show that judicial opinion on the harmful effect of non-mentioning of eye-witness(es) in the initial crime report is divided: rulings supporting the proposition, for example, are Inayatullah (Peshawar: 2019), and Zahid Hussain (Karachi: 1999) on which learned counsel for the appellant relied. The contrary opinion was spelt out in Jan Muhammad (Supreme Court: 2002), Sikandar (Supreme Court: 2006), and Raja Khurram Ali Khan (Islamabad: 2019). The two cases of the supportive view are worth distinguishing for the simple reason that the complainants in both of them had stated to be present at the crime scene at the time of the occurrence, a factor missing in the case in hand. The fact that he knew that PW7 and other children of the appellant and the victim were the eye-witnesses, couldn't be seen as damaging to the prosecution case. The reason is that neither he, nor PW7, being son of the appellant and the victim, could have had any mala fide. The children were the natural witnesses, amongst them, PW7, the one elder in age, and Ms. Roza Bibi (abandoned PW) came forward, others were younger in age. The peculiarity of the case in hand is that the occurrence has taken place inside the house of the appellant and the appellant himself has been charged for the murder of his wife. Before we discuss the cases on the contrary view, it seems pertinent to state the general principle of precedential law that every criminal case has to be considered on its own facts and circumstances. The principle has been pronounced in a number of cases, for example, Supreme Court's Tariq Mehmood (2002), Khan alias Khani (2006), Muhammad Siddique (2020), and The State (2021). In the first case in which two officials were convicted for taking bribes, it was argued on the strength of two reported Supreme Court cases that "none of the members of the raiding party heard the conversation which took place between the complainant (bribe giver) and the [.. .] accused (briber receiver)" [para.7]. The Supreme Court declined to apply the cited rulings for the reason that every case has its own facts and circumstances and that a rule laid down in that case would not command universal application. The Court elaborated: [.. .] some foundation must be laid down in the case for the application of the dictum in the earlier decided case. The above criteria fully apply to the facts of this case as neither factual background of the two cited cases is similar to the facts of this case nor any foundation has been laid down in the cross-examination of the witnesses to justify the application of the rule enunciated in the cited cases" (ibid). 14. Arguably, one may say that the complainant was quizzed in cross-examination as regards non-mentioning of PW7 in the initial report as an eye-witnesses. The peculiar facts of this case, however, are that the occurrence took place inside the house for which the appellant was charged as the sole perpetrator of the murder of his wife. Thus, the facts of this case substantially differ. In the 2020 case, the Court observed that a test applied in one criminal case may "absolutely be irrelevant" in another case for the reason that "crimes are seldom committed in identical situations; there may be cases wherein prosecution must assign distinct roles played during the occurrence..." [para 5]. In the last mentioned case of 2021, the Supreme Court while further elaborating the application of precedent in the given context, observed that a rule pronounced in one criminal case cannot be given an "omnibus" application in subsequent cases. 15. Coming now to the contrary view on the status of FIR, in the 2002 Jan Muhammad details of injuries of one of the victims were not mentioned. The Supreme Court observed that the FIR is not a substantive piece of evidence, nor an exhaustive document and that the non-mentioning of details therein would not weaken its correctness [para. 13]. The distinctive aspect of that case is that as many as 05 persons were seriously injured with hatchet blows, one amongst them, succumbed to his injuries. In Sikandar (2006), a somewhat similar situation was that the witness who lodged the FIR was not an eye-witness of the occurrence. The Supreme Court observed that the evidence of such a witness though could not be treated at par with that of an eye-witness, it could be considered as corroborative (para. 5). It was for the same reason that in the 2019 Raja Khurram All Khan, the High Court dispelled the argument that the written complaint, on the basis of which FIR was lodged, was not signed by the victim. 16. PW8 was also cross-examined on certain other aspects, such as, cruel conduct of the appellant and lodging of the report in the hospital. As regards the former, he stated that the appellant would usually beat the victim. He, however, admitted that the victim never sought dissolution of marriage. Nor did she make any report to the police against the appellant. Be that as it may, it is in the evidence that the couple had married for about 19/20 years, having as many as 10 children. It is our cultural norm that married women generally and un-educated particularly, would always be ready for great sacrifices for the sake of honour and dignity of their own parents and children. While our cultural norms are undergoing visible transformation owing to a push forward in women's empowerment women have been feeling more empowered, a paradigm shift has yet to come. The non-seeking of dissolution of marriage and/or non-complaining against the cruel conduct a of a husband to the police couldn't be seen a clear negation of the fact of cruel conduct, if it is otherwise established from evidence, as the situation is in the case in hand. 17. As far as the lodging of the report, PW8 admitted that he didn't make the report in any police station/check post lying on the way to the hospital. True, given the fact that the victim had succumbed to her injuries on the spot, the report should have been made in the nearest police station. The point that needs consideration is that whether this omission is the result of any deliberation or consultation. The attending circumstances of the case vividly demonstrate that no such evidence has come forward which may prove deliberation and consultation or other mala fide on the part of the complainant PW8. 18. We would now advert to the testimony of PW7, who furnished the ocular account of the unfortunate occurrence of his mother's death at the hands of his father. The story he told was that on the eventful day, at the relevant time, on the direction of the appellant, he went out to purchase some commodities from the shop. On his somewhat late return to home because he played outside for some time, the appellant got angry and started beating him. The victim (his mother) intervened, trying to rescue him, at which the appellant started beating her. The victim rushed to the residential room. The appellant followed her there and hit her with the wooden leg of a cot (Urdu: pawa), which injured at her head. PW7 and his sister went to the room to request the appellant not to beat their mother. But instead, the appellant took out a knife and stabbed her due to which she got further injured. The appellant decamped from the house. At about 06.30 pm, the complainant reached the house. After sometime, an ambulance of 1122 service came there in which the victim was shifted to the hospital, while PW7 stayed at home. 19. At evening time, the police investigator (Sub-Inspector Asmatullah/ PW11) visited the place of the occurrence, where PW7 pointed out how the occurrence took place. He showed the places of presence of the…

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