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Official Citation: 2025 PHC 104
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2025
Decision Date: 2025-05-08
Parties: Raheem Ullah etc vs The State
Ruling Summary: This decision was rendered by the Peshawar High Court on 2025-05-08, officially reported as 2025 PHC 104. In this matter between Raheem Ullah etc 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 2025PHC104
Court Name: Peshawar High Court Judge(s): Sahibzada Asadullah, Aurangzeb Title: Raheem Ullah etc vs The State Case No.: Criminal Appeal No. 1603-P/2023 with Murder Reference No. 28-P of 2023 Date of Judgment:2025-05-08 Reported As: 2025 PHC 104 Result: Revision Dismissed
JUDGMENT
JUDGMENT SAHIBZADA ASADULLAH, J.- Though this single order, this Court is intending to decide the instant criminal appeal, as well as the connected Cr.R No. 316-P/2023 titled "Razim Khan VS The State" as both the cases are arising out of one and the same judgment dated 23.11.2023, rendered by learned Additional Sessions Judge-II//Judge Model Criminal Trial Court, Charsadda, in case FIR No. 741 dated 24 06.2021 under sections 302/324/34 PPC, registered at Police Station City, District Charsadda, whereby the appellants were convicted and sentenced as under: i. Appellants Raheem Ullah and Faiz-ur Rehman u/s 302(b) PPC, convicted and sentenced to death as Tazir. They be hanged from neck till they are dead, subject to confirmation from Peshawar High Court u/s 374 Cr.P.C. The appellants shall also pay fine of Rs. 500,000/- each to the legal heirs of each deceased under section 544-A Cr.P.C. In default of payment, the same shall be recovered as arrears of land revenue from person and estate of the convicts or the appellants to suffer simple imprisonment of six (06) months. Appellant Fazal-e-Wahid for mitigating circumstances is convicted under section 302 (c) PPC, convicted and sentenced to imprisonment for twenty-five (25) years and compensation of Rs. 500,000/- to the legal heirs of each deceased under section 544-A Cr.P.C, which shall be recoverable from appellant Fazal Wahid as arrears of land revenue and in case of default, to further undergo simple imprisonment for six (06) months. Benefit under section 382-B Cr.P.C is extended in favor of the appellants. All the sentences shall run concurrently.
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2. Relevant facts, as per the contents of the FIR, are that on 24.06.2021, the complainant, Razim Khan, reported to the local Police that on the same day, he, along with Bakht Zali Shah, Rahmat Ali Shah, and lqbal Hussain, was present at the Judicial Complex, Charsadda, as their case was pending before the Court of Ms. Aqsa Saeed, Additional Sessions Judge, Charsadda; that after the Court proceedings, while they were waiting for Ishfaq Khan Advocate in his office, the accused Faiz-ur-Rehman, Raheem Ullah, Fazal-e-Wahid, and Karim Khan, armed with weapons, arrived and opened fire; that resultantly, Bakht Zali Shah, Rahmat Ali Shah, and lqbal Hussain sustained serious firearm injuries; that Bakht Zali Shah died on the spot, while the other two were shifted to the hospital. The motive behind the occurrence was stated to be an ongoing blood feud. Hence, the present FIR. It is worth mentioning that later on, the injured Rahmat Ali Shah and lqbal Hussain, also succumbed to their injuries and died, so the same was entered into DD No. 33 dated 24.06.2021. 3. On conclusion of the investigation, challan was submitted before the learned trial Court, where the appellants were formally charge sheeted to which they pleaded not guilty and claimed trial. After commencement of the trial, the prosecution produced as many as (17) witnesses. Thereafter, the statements of accused-appellant were recorded under section 342 Cr.P.0 wherein, they professed innocence, however, neither opted to produce defense evidence nor wished to be examined u/s 340(2) Cr.P.C. On conclusion of the trial, the learned trial Court convicted and sentenced the appellants in the manner quoted to above, hence, the instant appeal. 4. Heard. Record perused. 5. What a shocking incident this was which claimed the lives of three (03) innocent souls. Two of the deceased by then were seriously injured, so were picked up from the spot, hurriedly shifted to the hospital, but one of the deceased namely Bakht Zali died on the spot, so the matter was reported by the complainant when the local Police arrived. The injury sheet and inquest report of the deceased Bakht Zali, were prepared on the spot, whereafter the dead body was sent for post- mortem examination. As the remaining injured breathed their last while enroute to the hospital, so their injury sheets and inquest reports were prepared in the hospital and the dead bodies were sent for post-mortem examination. The incident occurred inside the Judicial Complex, so on hearing the report of firing, the Police rushed to the spot and succeeded to overpower two of the accused, whereas the remaining accused decamped from the spot. The arrested accused were recognized as Raheem Ullah and Faiz-ur-Rehman. From possession of both the appellants, pistols were recovered, the same were taken into possession and also the accused were shifted to the Police Station. On personal search of the appellant Raheem Ullah, two handkerchiefs alongwith a license copy, were recovered and were taken into possession. The recovered pistols were placed in safe custody and in that respect, relevant entries in the relevant register were made. The Investigating officer visited the spot and on the pointation of the eye witness, prepared the site plan. The Investigating officer could collect 09 empties of .30 bore, lying scattered on the ground and he also succeeded in recovering 04 empties of the same bore, from two different places outside the office. Apart from the above, the Investigating officer also noted in the site plan that due to firing, the mirror of the outer gate of the office was smashed and he also observed a bullet mark on the western gate of the office. As two of the appellants were arrested by an ASI namely Bahar Ali Khan, so the Investigating officer produced them before the Court of competent jurisdiction and their physical custody was requested. They led the Investigating officer to the spot and pointed out various places where the deceased were present and where the accused were present at the time of firing. The Investigating officer visited the Police Station and took into possession the pistols, which were already recovered, so the same were sent alongwith the collected empties to the firearms expert and a report was received telling that the collected empties were fired from the same. The appellant Raheem Ullah opted to confess his guilt, so he was produced before the Court of learned Judicial Magistrate and as such, his statement was
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recorded. The appellants faced the trial, they were charge sheeted, but on arrest of the appellant Fazal Wahid, charge was again framed. The appellants were committed for trial and on conclusion of the trial, were convicted and sentenced vide the impugned judgment. 6. It was the bloodiest day as three (03) innocent persons lost their lives and for the same, the appellants alongwith the absconding co-accused were charged. Keeping in view the gravity of the matter, this Court deems it essential to ascertain that whether the learned trial Court could appreciate the evidence on file and that whether the impugned judgment is based on the evidence collected by the prosecution. We are anxious to know that whether the learned trial Court got influenced from the circumstances, as the incident occurred inside the Judicial Complex, or that it appreciated the evidence without the influence. There is no denial to this fact that the incident shocked all in the premises, but the damage caused and the sensitivity of matter should not be the determining factor, as if, it would influence the mind of the trial Court, then justice cannot be done. True that the learned trial Court after appreciating the evidence, held the appellants responsible, for the tragic incident and to two of them, the sentence of death was awarded, whereas one was convicted and sentenced to life imprisonment, but equally true that this Court is to assess that what convinced the learned trial Court to reach to such a conclusion and that what evidence was taken into consideration. As on one hand this Court is to punish the guilty, but on the other this Court is under the obligation to rescue the innocent. In order to appreciate the attending circumstances of the present case, we deem it essential to scan through the record and to reassess the already assessed evidence, so that miscarriage of justice could be avoided. 7. 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 complainant was present at the time of incident and that it was he who reported the matter; as to whether the appellants were arrested in the stated manner and that from their personal possession, the weapon of offence were recovered; that whether the confessional statement of the appellant is true and voluntary; as to whether the medical evidence supports the case of the prosecution and as to whether the prosecution succeeded in bringing home guilt against the appellants. 8. We cannot deny the gravity of the matter and so the damage caused, but to appreciate the involvement of the appellants in the tragic incident, we feel it essential to appreciate the evidence on file and to assess the credibility and truthfulness of the witnesses. As complainant is the sole eyewitness, so this Court is to see as to whether he could prove his presence on the spot at the time of occurrence; that whether he told the whole truth and that whether the incident occurred in the stated manner. Record tells that on the unfortunate day, both the parties were to put appearance before the Court, as their Bail Before Arrest applications were pending. As one of the parties was seeking bail in case FIR No. 303, dated 11.06.2021, whereas the other in DD No 12, dated 11.06.2021, which was the counter-version. Record further confirms that the parties put appearance before the Court and it was their sworn affidavits which influenced the Court and because of their no objection, the learned Court was pleased to confirm their Bail Before Arrest. Their presence before the Court, their no objection over the Bail Before Arrest of each other and the observations of the Court in the order, are the circumstances which tell of their tolerance and which confirm that till that time, none of the parties had such an intention. The Investigating officer collected the required documents from the Court and the same are available on file. In order to appreciate the circumstances which led to the tragic incident, we deem it essential to go through the statement of the complainant, as it was he who claimed his presence with the deceased, at the stated time, and that it was he who witnessed the occurrence. The complainant was examined as PW 05, who stated that on the day of incident, he with the deceased, visited the Court and after getting their Bail Before Arrest confirmed, he alongwith the deceased went to the office of the Advocate, as the
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Advocate was not available, so they kept on waiting; that in the meanwhile, the appellants alongwith the absconding co-accused entered into the office, duly armed, started firing at the deceased and as a result of the firing, the deceased received serious injuries; that the deceased Bakht Zali died on the spot, whereas the remaining deceased being injured, were hurriedly shifted to the hospital; that on arrival of the local Police, he reported the matter, the injury sheet and inquest report were prepared and the dead body was sent for post-mortem examination. This witness was cross-examined by the defense, so we are anxious to know that whether he could establish his presence on the spot and that whether in his presence, the unfortunate incident occurred. In the site plan, the respective places of the parties are shown. The complainant in his Court statement explained that the accused entered the office from the western side, but in the site plan, two of the accused were shown to have entered from the North, whereas two from the Western side. If, the statement of the complainant is taken to be correct, then this Court is to look into the site plan and to the places assigned to the accused, but the site plan contradicts the stance of the complainant. It is pertinent to mention that the complainant is shown sitting with one of the deceased, whereas the remaining two deceased were having their seats in front of the complainant. When the accused entered the office from the Western side, as per statement of the complainant, then there was no occasion for the bullet to hit the outer door of the office which was situated towards the West and if, the accused were shown entered from two different doors, then in case of firing at the deceased, there was hardly an occasion for the bullet to strike the Western door and the door situated towards the North, had this been so, then the accused would receive bullet injuries at the hands of one another, and if this Court would accept the same, then the possibility is there that the deceased also resorted to firing. We are surprised to note that one of the deceased, after receiving firearm injuries at Point-3, rushed out the office and died at Point-3A. If, the accused/appellants were present in the respective doors of the office and when the intention was to kill, then there was no occasion for the deceased to travel from Point-3 to Point-3A, as the accused would never permit him to run out of the office. The circumstances further disturb the judicial mind of this Court, as from the place where the complainant and one of the deceased was sitting, 04 empties of .30 bore were collected and from in-front of the respective doors, 02/02 empties of .30 bore were taken into possession, so if the firing was made by the accused, then it does not appeal to mind that how the empties could be collected from the place where the complainant and where the deceased Rehman Ali Shah was sitting. The matter does not end here, rather it is for the prosecution to tell that how the empties were collected from Point-F, situated outside the office towards the North and that how 02 empties of the same bore were collected from Point-E, but towards the West. When the firing was made inside the office, then there was hardly an occasion for the Investigating officer to collect empties from Point-E and from Point-F which are situated outside the office. When these circumstances are taken into consideration, no ambiguity is left that the complainant had suppressed the material facts. Though this Court is not in a happy mood to accept that the incident did not occur and this Court is not inclined to hold that the complainant did not witness the incident, but this Court is confident in holding that the prosecution case is based on the concealment of facts. This Court is to determine that once the facts were concealed, whether the defense would get the benefit and that whether the accused would be entitled for acquittal. As the unfortunate incident claimed the lives of 03 innocent souls, as the presence of the parties is admitted on record and as the arrest of the appellants is shown from the spot, so this Court is not inclined to hold that the appellants are not responsible for the commission of the offence, but at the same time, this Court is anxious to know that how the incident occurred and who was instrumental to the same. We are conscious of the fact that the complainant is the sole eyewitness and to place reliance on his testimony, would require much care and would require much caution. True that conviction can be awarded on the
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strength of a sole eyewitness, but equally true that the witness must convince his credibility, his truthfulness and his presence on the spot. There is no cavil with the preposition that the quality of evidence would determine the fate of an accused and not the quantity. True that the complainant is the close relative of the deceased and is the brother-in-law of one of the deceased, but whether that alone would be sufficient to question his truthfulness or that the defense must convince of malafide on his part and the defense must show his interest in the false implication of the appellants. We are confident in holding that conviction on the basis of the evidence of a close witness can be awarded provided his testimony rings true and his character inspires confidence. Reliance can be placed on lmran Mehmood Versus the State and another (2023 SCMR 795), which reads as follows: - "However, it is by now a well-established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses out- rightly. If the presence of the related witnesses at the time of occurrence is natural and their evidence is straight forward and confidence inspiring, then the same can be safely relied upon to award capital punishment. Learned counsel for the appellant could not point out any reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit, who has brutally murdered her father and uncle." 9. As the incident occurred inside the Judicial Complex, so on hearing the fireshots, the Police on duty rushed to the spot and succeeded to overpower two of the appellants. They were confined in the Judicial Lockup and from their possession, two (02) .30 bore pistols were recovered alongwith two handkerchiefs and a license copy. It is interesting to note that the license copy was confirmed from the concerned office and a report was received that the same was in the name of accused appellant Faiz-ur-Rehman. The officials who overpowered the appellants also took the appellants to the Police Station and the weapons recovered from their possession were handed over in the Police Station to be placed in safe custody. The Investigating officer visited the Police Station where the concerned Police official handed him over the recovered pistols, the same were taken into possession and were sent to the firearms expert alongwith the collected empties. A report was received telling that the collected empties were fired from the recovered pistols. The Investigating officer requested physical custody of the appellants, the same was granted and it was during investigation, that the appellant Raheem Ullah, opted to confess his guilt, so he was produced before the Court of Judicial Magistrate, where his statement was recorded. This Court is to see that whether the appellants were arrested in the manner and that whether it was during custody when one of the appellants opted to confess his guilt and that whether his confessional statement is true and voluntary. On hearing the fireshots, the Police chased the accused and they succeeded to catch hold of them. The appellants were put inside the lockup and their personal search was made. From the possession of the appellants, the pistols were collected and on personal search of the appellants, a license copy, pertaining to pistol No. AB-213, was taken into possession and also, two (02) handkerchiefs from the possession of the appellant Raheem Ullah. The spot arrest of the appellants is a circumstance which the defense, despite efforts, could not get rid of and even the recoveries, more particularly, the pistols used in the tragic incident, could not be disputed. The circumstances favor the prosecution, as while entering the premises, one has to pass through strict security measures, sensing the same, the accused selected to tie the pistols with his legs and succeeded to enter the premises, duly armed. In order to appreciate the manner in which the appellants were arrested, we went through the statements of the witnesses. As the appellants were arrested soon after the occurrence, so the relevant witnesses were produced. Bahar Ali Khan, ASI, was the security Incharge assisted by constable Kamran and one Umar. Bahar Ali, was produced as PW-07 and constable Umar as PW-08. The witnesses explained that how they chased the accused and that how the accused were overpowered. The witnesses were put to searching cross-
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examination, but nothing could be brought from them, which would damage the case of the prosecution. The presence of the accused cannot be doubted, as both the parties attended the Court in connection with their Bail Before Arrest. The defense could not convince that the appellants were not arrested in the manner and that the recoveries were not made from their personal possession. The witnesses despite searching cross-examination, could not be discredited. Reliance is placed on the judgment of the apex court titled "Abdul Wasay and others vs the State and others" (2021 SCMR 1059), wherein, it has been held as under: Perusal of the record further reflects that the patrolling police reached at the spot during the occurrence and the Petitioner along with his acquitted co-accused Abdul Rashid, Abdul Hadi and Syed Ali were arrested at the spot along with their respective weapons of offence i.e. 'Churri' (P-7) and 'Chaqu' (P-9). The same were taken into custody by the investigating officer vide recovery memo (Ex-P-5). PW-5 has not only confirmed the arrest of the accused at the spot but has also confirmed the recovery of their respective above noted weapons of offence. 10. Soon after their arrest, the appellants were shifted to the Police Station alongwith the recovered pistols. The pistols were placed in safe custody which were received by the Investigating officer on visiting the Police Station. Right from its recovery till the same was taken into possession, in the instant case, its safe custody is proved and in respect of the recoveries and in respect of the possession of the weapons, the relevant witnesses were produced and examined. It is interesting to note that as many as 04 accused were charged for the commission of the offence, but two of the accused were arrested on the spot and the remaining two could not be. As four (04) accused allegedly participated in the tragic incident, so it is for the prosecution to tell that why the remaining two could not be arrested and that how they succeeded in leaving the premises. We are conscious regarding this particular aspect of the case, as apart from the appellants, the appellant Fazal-e-Wahid, was also convicted and sentenced. As the appellant Fazal-e-Wahid, could not be arrested on the spot, so this Court is anxious to know that what evidence was brought against him and that what evidence is to be taken into consideration to assess his involvement and to assess his participation in the instant case. In our understanding, the presence of the appellants who were arrested on the spot, is not disputed, but the presence of the appellant Fazal-e-Wahid disturbs the judicial mind of this Court, as soon after the occurrence, the gates were closed with no chance to leave. In order to appreciate the involvement of the appellants and in order to ascertain that what role was played by which accused, we deem it essential to go through the confessional statement of the appellant, as on the next day of the occurrence, the appellant Raheem Ullah, opted to confess his guilt. 11. True that two (02) of the appellants were arrested on the spot, their custody was requested and it was during investigation that one out of the two opted to confess his guilt. He was produced before the Court of learned Judicial Magistrate, where his statement was recorded. This Court is to see as to whether the confessional statement is in accordance with law and that while recording the same, the needed and requisite formalities were observed. In order to appreciate the legality of the recorded statement, we went through the questionnaire, but we could not come across any irregularity, as the relevant questions were put to the accused and it was after due satisfaction, that the statement of the appellant was recorded. The confessional statement of the appellant was gone through, which contains the explanation that how the appellants decided to kill, what precautions were taken and that who out of the accused participated actively. The appellant while confessing his guilt, explained the background of differences with the deceased and he also explained that after attending the Court, the deceased went into the chamber of their lawyer, he entered and fired at them. He further explained that soon thereafter the appellant Faiz-ur-Rehman, entered and received a pistol from him, so he also fired. When the confessional statement of the appellant is juxtaposed with the report of the complainant, no ambiguity is left that both
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contradicted each other. As the complainant in his report specifically charged all the four accused for firing, whereas the appellant initially restricted himself to the firing, but subsequently, the appellant Faiz-ur-Rehman, was also included. On one hand the complainant charged all the four (04) accused, whereas on the other, the appellant…
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