Full Judgment Text & Judicial Ruling

2025 Y L R 2101 [Peshawar] Before Shakeel Ahmed and Sahibzada Asadullah, JJ Shabbir Hussain---Appellant Versus The State and another---Respondents Criminal Appeal No. 166-P and Criminal Revision No. 21-P of 2020, decided on 23rd April, 2024. (a) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Matter reported to the police with promptitude---Accused was charged for committing murder of the brother of complainant by firing---Record showed that the incident occurred at 05:40 pm whereas, the matter was reported to police at 06:05 pm within the shortest possible time---Record further told that the deceased was brought to the hospital and, in that respect, an OPD chit was collected where the name of the deceased was mentioned along with the time of his arrival as 05:57 pm---Said chit was collected by the Investigating Officer and was duly exhibited---Circumstances established that the prosecution succeeded in bringing home guilt against the appellant---Appeal against conviction was dismissed, accordingly. (b) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Presence of the witnesses at the time and place of occurrence proved---Accused was charged for committing murder of the brother of complainant by firing---Complainant and an eye-witness furnished ocular account of the incident---Scope---Complainant stated that on the day of incident, he along with the eye-witness was present in the street, infront of his house---Deceased was proceeding towards the house of the appellant and on reaching near his house, the appellant fired at him with a pistol in his possession---Accused decamped from the spot, they rushed to the deceased, the dead body was shifted to the hospital and the matter was reported---Eye-witness confirmed the report of the complainant and also explained the circumstances in which the unfortunate incident occurred---No denial to the fact that both the parties, during the days of incident, were residing in the same street and, that it was the complainant and the eye-witness, who shifted the dead body of the deceased from the spot to the hospital---As both the parties were not related to each other and as nothing was brought on record showing their ill-will, so the presence of the witnesses near the place of incident or at the place of incident at the stated time was natural---Circumstances established that the prosecution succeeded in bringing home guilt against the appellant---Appeal against conviction was dismissed, accordingly. (c) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Mode and manners of the occurrence proved---Accused was charged for committing murder of the brother of complainant by firing---Record showed that the identifiers of the dead body were from the same locality where the incident occurred, so it was convincing matter that the complainant, the eye-witness and the identifiers collectively shifted the dead body of the deceased to the hospital soon after the incident---No denial to that fact that the parties were having no previous ill-will, rather it was an altercation between the appellant and the deceased few days earlier to the incident that took the life of the deceased---As the parties were not related to each other and as the witnesses had no grudge with the appellant, so the bona fide of the witnesses could not be doubted and, that no mala fide could be attributed to the witnesses---As admittedly, the house of the appellant and that of the deceased as well as the witnesses were situated in the same street, therefore, the stated time could not be disputed---As admittedly, the incident occurred on the 3rd day of Eid, so under ordinary circumstances, people were always present in their houses or in the area, where they lived---Witnesses remained consistent regarding the manner in which the incident occurred and, regarding the manner in which the matter was reported---Defence failed to shatter the credibility of witnesses and, the High Court was inclined to hold that the incident occurred in the stated manner and at the stated time---Circumstances established that the prosecution succeeded in bringing home guilt against the appellant---Appeal against conviction was dismissed, accordingly. (d) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive proved---Accused was charged for committing murder of the brother of complainant by firing---True that the motive was not known to the eye-witness and that he did not caution the deceased regarding the intention of the appellant, but as the motive was given as an altercation between the appellant and the deceased few days before the incident, so the witness was not of the view that the appellant would kill the deceased, as intention of the appellant could not be gathered by the eye-witness may be for the reason that the altercation was not so harsh---If the complainant had any mala fide to charge the appellant, then on the very day of the incident, he would have introduced the motive, but as he was not in the knowledge of the altercation between the appellant and the deceased, so he kept silent and soon thereafter, he submitted an application, that too, on the same day regarding the motive between the parties---Eye-witness was examined on the very day of the incident by Investigating Officer and he explained the motive and he confirmed that few days earlier to the incident an altercation took place between the appellant and the deceased---Circumstances established that the prosecution succeeded in bringing home guilt against the appellant---Appeal against conviction was dismissed, accordingly. (e) Criminal trial--- ----Substitution, a rare phenomenon---Scope---In cases of single accused, substitution is a rare phenomenon. Imran Mehmood v. The State and another 2023 SCMR 795 rel. (f) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related and interested witnesses, evidence of---Scope---Accused was charged for committing murder of the brother of complainant by firing---Time of incident, the time of report and the time of examination of the dead body of the deceased by the doctor, were the circumstances, which confirmed that all the events happened in quick succession and there was hardly an occasion for the witnesses to consult and deliberate as admittedly, the parties were not related to each other---Admittedly, no previous ill-will was brought on record either by the complainant or by the Investigating Officer, so the defence could not convince that either the witnesses were interested or they had a motive for false implication---True that the witnesses were closely related to the deceased, but under no circumstances, they could be held as interested and inimical towards the appellant---No cavil with the proposition that the statement of a close relative can be taken into consideration provided it rings true and provided it inspired confident---As both the witnesses were cross- examined on material aspects of the case and as nothing detrimental to the prosecution case could be extracted from their mouths, so mere relationship of the witnesses with the deceased could hardly be a ground to label them as interested witnesses---Circumstances established that the prosecution succeeded in bringing home guilt against the appellant---Appeal against conviction was dismissed, accordingly. (g) Criminal trial--- ---Interested witness---Scope---An interested witness is one who has an interest to falsely implicate andwho has an interest to substitute the real culprit for the innocent. (h) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence supporting the ocular account---Scope---Accused was charged for committing murder of the brother of complainant by firing---Medical evidence was in harmony with the ocular account and the witnesses remained consistent on that particular aspect of the case---True that the deceased received an entry on right of his neck with its exit to the left but equally true that it alone could not determine the presence of the appellant and the presence of the deceased at the stated time---An attempt was made to convince that in case the deceased was proceeding towards the appellant, then he would have received an injury from his left with its exit on his right, but the defence ignored that the deceased received three firearm injuries and apart from the injury on the neck, he received another injury on his shoulder which travelled from left to right---As the defence could not convince that what injury was received by the deceased at the earliest and which of the injury thereafter, so that Court could presume that after receiving the injury on his shoulder, the deceased changed his direction and it was in that eventuality that he received an injury on the right of his neck with its exit on the left---Fact cannot be ignored that man is not a statue, rather every individual reacts differently in particular circumstance of each particular case---Possibility could not be excluded that after receiving firearm injury on his shoulder, the deceased wanted to rescue himself and, while struggling so, he received an injury on his neck---Medical evidence fully supported the ocular account---Medical evidence was confirmative in nature and in absence of trustworthy eye-witnesses account, the same could hardly be a circumstance for holding the accused responsible---However, as in this particular case, the witnesses remained consistent, so the medical evidence could be taken into consideration---Circumstances established that the prosecution succeeded in bringing home guilt against the appellant---Appeal against conviction was dismissed, accordingly. Ansar and others v. The State and others 2023 SCMR 929 rel. (i) Criminal trial--- ----Motive---Scope---Absence or weakness of motive is not a ground for the acquittal of an accused, rather the same can be taken into consideration to determine as to what sentence should be awarded. Mazhar Abbas alias Baddi v. The State 2017 SCMR 1884 rel. (j) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Absconsion of accused---Scope---Accused was charged for committing murder of the brother of complainant by firing---As per record, the appellant remained absconder for considerable long time till his arrest on 26.10.2015, and he failed to explain the same---Abscondance alone is not sufficient for holding an accused guilty, but once the prosecution succeed in bringing home guilt against the accused, then abscondance canbe taken into consideration---As in this particular case on one hand, the witnesses established their presence on the spot, whereas, on the other, appellant's long unexplained abscondence was a circumstance which could be taken into consideration---Circumstances established that the prosecution succeeded in bringing home guilt against the appellant---Appeal against conviction was dismissed, accordingly. Jalal-ud-Din Akbar-e-Azam Khan Gara for Appellant. Nauman-ul-Haq Kakakhel, A.A.G. for the State. Hussain Ali and Asfandiyar Khan for the Complainant. Date of hearing: 23rd April, 2024. Judgment Sahibzada Asadullah, J.---Through this single judgment, we shall decide the instant Cr.A. No. 166-P/2020 titled "Shabbir Hussain v. the State" and the connected Cr.R. No.21-P/2020 titled "Dr. Wazim Khan v. Shabbir Hussain and another" as both the matters are arising out of one and the same judgment dated 18.02.2020 passed by the court of learned Additional Sessions Judge-II/MCTC, Peshawar delivered in case FIR No. 860 dated 11.08.2013 under section 302 P.P.C of Police Station Hayatabad, Peshawar, whereby the appellant Shabbir Hussain was convicted under section 302 (b) P.P.C as Tazir and sentenced to undergo imprisonment for life and to pay Rs.4,00,000/- (rupees four lac) as compensation to legal heirs of the deceased within the meaning of section 544-A Cr.P.C. or in default whereof to further suffer simple imprisonment for six months. Benefit of section 382-B Cr.P.C. was extended to the convict/ appellant. 2. Precisely stated facts of the case, as spelt out from the contents of murasila are that on 11.08.2013 complainant Dr. Wazim Khan reported the matter in Hayatabad Medical Complex, Peshawar to the effect that he along with his paternal nephew Murtaza Khan was preset in front of the main gate of his house whereas, the deceased Azam Khan came out of the house and was proceeding in the street and when reached opposite to the house of appellant Shabbir Hussain, the appellant, who was standing in the gate of his house armed with pistol, started firing at his brother with an intention to kill him as a result of which his brother received firearm injuries while the appellant decamped from the spot. Complainant along with his nephew shifted the deceased then injured to the hospital but on the way, he breathed his last. The accused/ appellant was charged for the commission of offence hence, the present FIR. 3. On conclusion of the investigation, challan was submitted before the learned trial Court, where the appellant was summoned and on appearance, was provided copies of the relevant documents under section 265-C Cr.P.C. and thereafter, he was formally charge sheeted to which he pleaded not guilty and claimed trial. After commencement of the trial, the prosecution produced as many as (15) witnesses. Thereafter, the statement of accused-appellant was recorded under section 342 Cr.P.C. wherein, he posed innocence, however, neither he opted to produce defense evidence nor wished to be examined on Oath under section 340(2) Cr.P.C. On conclusion of the trial, the learned trial Court convicted and sentenced the appellant in the manner quoted to above, hence, the instant appeal. 4. The learned counsel for the parties heard at length along with learned AAG and with their valuable assistance, the record was scanned through. 5. The heart wrenching incident led to the death of deceased Azam Khan. The dead body was shifted to the Hayatabad Medical Complex, Peshawar where the complainant reported the matter. The injury sheet and inquest report were prepared and the dead body was sent for the postmortem examination. The Investigating Officer, after receiving copy of the FIR, visited the spot and on the pointation of the witnesses, prepared the site plan. During spot inspection, blood through cotton was collected from the place of deceased. The Investigating Officer on the same very day visited the hospital where, he collected the OPD chit, which contains the details of arrival of the dead body to the hospital. After the commission of offence, the accused/appellant went into hiding and it was after considerable long time that he was arrested and faced the trial. On conclusion of the trial, the learned trial court was pleased to convict and sentence him vide the impugned judgment. 6. The learned court after concluding the trial, held the appellant responsible for the murder of deceased Azam Khan and as such, he was convicted and sentenced. As in the instant case, single accused is charged, so this court is to see as to whether the approach of the learned trial court was in accordance with law and, as to whether the learned trial court succeeded in appreciating the evidence on file. True that single accused by itself is not a circumstance to determine the fate of the said accused, rather under all circumstances, the prosecution is to bring on record independent, disinterested and reliable evidence, coupled with the fact that the learned trial court must take extra care while determining the involvement of accused in the incident. True that in case of single accused substitution is a rare phenomenon, but that is not the rule of thumb, rather under all circumstances, both, the prosecution and the court is burdened with liability to proceed with the matter in accordance with law. 7. The points for determination before this court are as to whether the incident occurred in the mode and manner and at the stated time; as to whether the witnesses were present on the spot at the time of incident and in the hospital at the time of report; as to whether the medical evidence supports the case of the prosecution and, that the prosecution succeeded in proving the alleged motive and, as to whether the prosecution succeeded in bringing home guilt against the appellant? 8. There is no denial to this fact that the unfortunate incident claimed the life of the deceased and the matter was promptly reported, but to ascertain as to whether the incident occurred in the stated manner, we deem it essential to go through the report of the complainant and his court statement and the statements of the eye-witness as well. It is evident from the record that the incident occurred at 17:40 hours whereas, the matter was reported in Hayatabad Medical Complex (HMC) at 18:05 hours within the shortest possible time. The record further tells that the deceased was brought to the hospital and, in that respect, an OPD chit was collected where the name of the deceased is mentioned along with the time of his arrival as 17:57 hours. The said chit was collected by the Investigating Officer and is duly exhibited. In order to appreciate the presence of the witnesses at the time of incident, we deem it essential to go through their statements. The complainant was examined as PW-8 and the eye-witness as PW-9. The complainant stated that on the day of incident, he along with the eye-witness was present in the street, infront of his house, that the deceased was proceeding towards the house of the appellant and on reaching near the house of the appellant, the appellant fired at him with a pistol in his possession; that the accused decamped from the spot, they rushed to the deceased, the dead body was shifted to the hospital and the matter was reported. The eye-witness confirmed the report of the complainant and he also explained the circumstances in which the unfortunate incident occurred. There is no denial to this fact that both the parties, during the days of incident, were residing in the same street and, that it was the complainant and the eye-witness, who shifted the dead body of the deceased from the spot to the hospital. As both the parties were not related to each other and as nothing was brought on record showing their ill-will, so the presence of the witnesses near the place of incident or at the place of incident at the stated time is natural. The learned counsel for the appellant submitted that as the occurrence took place on the 3rd day of Eid, so under all circumstances, the witnesses were present in their village and after receiving information regarding the tragic incident, they rushed to the hospital where the complainant reported the matter. The submissions of the learned counsel for the appellant do not appeal to a prudent mind, as it is not necessary that all people living in cities must go to their villages to celebrate Eid, rather it depends upon every individual. As it is not the rule of universal application, as the behavior of people vary from person to person. True that the complainant belonged to village Bakhshoo Pull but that by itself would not determine the availability of the complainant and the eye-witnesses in Hayatabad on the day of incident. As the witnesses confirmed that they were present near their house and nothing was brought on record which could persuade the presence of witnesses in their village. The learned counsel sought the indulgence of this court on the ground that as Mst. Zubaida was present in the house, so it was essential for the Investigating Officer to record her statement regarding the presence of the witnesses in Hayatabad, on the day of incident. We are not convinced that the non-recording of the statement of Mst. Zubaida by the Investigating Officer would be fatal for the prosecution. As admittedly, Mst. Zubaida was present inside the house, so her examination or on-examination would hardly be a circumstance to determine the truthfulness and veracity of the witnesses. As admittedly, Mst. Zubaida is the closest relative of the deceased and the witnesses, so she cannot be given such preference, rather she enjoys equal relationship with the deceased. We are to see the presence of the eye-witnesses on the spot and we are to see as to whether they succeeded in establishing their presence. 9. The dead body was hurriedly shifted to the hospital and it was the complainant, who reported the matter and interestingly, an OPD chit was collected where the arrival of the dead body to the hospital is entered and the same confirms that the deceased was brought to the hospital at 17:57 hours i.e. within 17 minutes of the incident. This aspect of the case is further confirmed by the doctor, who mentioned the time between the injury and death as immediate and, time between death and postmortem as 1 to 4 hours. The scribe was examined as PW-2 (Fazal Rabbani SI), who explained that on the day of incident, he was patrolling in the area and, that on receiving information regarding the arrival of the dead body to the hospital, he rushed to the hospital where, the complainant reported the matter. He also confirmed that he prepared the injury sheet and inquest report and thereafter, the dead body was sent for postmortem examination. True that the eye-witness did not verify the report of the complainant, but that by itself would not be sufficient for holding that the eye-witness was not present with the complainant when he reported the matter. It was agitated that had the complainant and eye-witness been present with the dead body, then they would have identified the dead body of the deceased before the police at the time of report and before the doctor at the time of postmortem examination. The learned counsel for the appellant wanted to convince that the witnesses were procured from their village and, that the matter was reported after consultation and deliberation. We are not in a happy mood to accept the submissions of the learned counsel, as admittedly, the dead body identifiers belonged to Hayatabad, and were living in another street. If the identifiers had come from the village of the complainant, then the submissions of the learned counsel would prevail and then this court might take another view but as the identifiers were from the same locality where the incident occurred, so we are convinced that the complainant, the eye-witness and the identifiers collectively shifted the dead body of the deceased to the hospital soon after the incident. There is no denial to this fact that the parties were having no previous ill-will, rather it was an altercation between the appellant and the deceased few days earlier to the incident that took the life of the deceased. As the parties were not related to each other and as the witnesses had no grudge with the appellant, so the bona fide of the witnesses cannot be doubted and, that no mala fide can be attributed to the witnesses. As admittedly, the house of the appellant and that of the deceased as well as the witnesses were situated in the same street, therefore, the stated time cannot be disputed. As admittedly, the incident occurred on the 3rd day of Eid, so under ordinary circumstances, people are always present in their houses or in the area, where they live. The witnesses remained consistent regarding the manner in which the incident occurred and, regarding the manner in which the matter was reported, the defence failed to shatter their credibility and, this court is inclined to hold that the incident occurred in the stated manner and at the stated time. The attention of this court was brought to the inquest report where instead of using the word "pistol" the word firearm (Asliha-e-Atasheen) is used and the learned counsel wanted to convince that while reporting the matter, the complainant disclosed that the appellant was armed with a pistol, if the inquest report was made on the information of the complainant, then instead of firearm the word pistol would have been used. We are not convinced with what was agitated, as on one hand, there is no ill-will between the parties, so question of false implication does not arise whereas, on the other, the dead body was shifted to the hospital soon after the incident and the report was made within the shortest possible time, so the circumstances by itself are sufficient to hold that the witnesses were present and that the incident occurred in their immediate presence. 10. The Investigating Officer of the case namely; Sabir Khan DSP (retired) was examined as PW-12, who confirmed that after receiving copy of the FIR, he visited the spot and on the pointation of the witnesses, prepared the site plan. The site plan shows the houses of the appellant and that of the complainant in the same street. The site plan…

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