Full Judgment Text & Judicial Ruling

2025 M L D 1644 [Peshawar] Before Shakeel Ahmad and Sahibzada Asadullah, JJ Saddam---Appellant Versus The state and others---Respondents Criminal Appeal No. 1164-P of 2022, decided on 18th April, 2024. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---No justification for the presence of complainant/eye-witness at the time and place of occurrence---Chance witness, evidence of---Scope---Accused was charged for committing murder of the brother of complainant by firing---Motive behind the occurrence was previous blood feud between the parties---Allegedly, the complainant, eye-witness and the deceased had come to the Court to pursue his case---As the complainant was the resident of a village lying away from the place of incident, so it was for the complainant to convince that on the day of incident he, the deceased and the eye-witness visited Courts in connection of his pending cases---Despite efforts Cout could not come across any evidence showing his activities, in Courts, on the day of incident---Neither the complainant nor the eye-witness could provide the relevant documents to the Investigating Officer and even the Investigating Officer failed to collect any evidence from the concerned quarters---Complainant could not disclose the nature of his case, the Court he attended and the advocate whose services were hired---When the most relevant evidence was neither collected, nor brought on record the Court was hesitant to accept presence of complainant and that of the eye-witness at the place of incident and at the time of incident, rather the Court was to walk an extra mile to appreciate their presence on the spot---Circumstances established that the prosecution failed to bring home guilt against the appellant---Appeal against conviction was allowed, accordingly. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Delay of 50 minutes in lodging the FIR---Consequential---Accused was charged for committing murder of the brother of complainant by firing---Record showed that the dead body was collected from the spot by Rescue 1122 service and that soon thereafter the same was shifted to the hospital, but the matter was reported at 12.20 pm after the delay of more than fifty (50) minutes---As the hospital was situated at a little distance from the place of occurrence and as the dead body was collected from the spot by Rescue 1122 service, so the time spent in reporting the matter could not lightly be ignored---Circumstances established that the prosecution failed to bring home guilt against the appellant---Appeal against conviction was allowed, accordingly. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Presence of complainant/eye-witness at the spot not proved---Accused was charged for committing murder of the brother of complainant by firing---Admittedly, matter was reported by the complainant, but the dead body was neither identified by the complainant nor by the eye-witness, even at the time of report and even at the time of its examination---Identifiers belonged to the village of the complainant, so their arrival to the hospital at the time of report was a circumstance which indicated that they accompanied the complainant to the hospital after receiving information regarding the incident---Circumstances did tell that the complainant after receiving information regarding the incident reached to the hospital along with the identifiers and thereafter the report was made---As the complainant failed to establish his presence with the deceased and as the purpose to visit Court was not proved through the relevant witnesses, so an impression could be gathered that first the injury sheet and inquest report were prepared and thereafter the report was made---Moreover, Court could not exclude the possibility of preliminary investigation in the present case---At the time of incident, the deceased was present on the railway track---It was for the witnesses to tell that when they came out to the road to go to the village, then for what purpose the deceased went to the railway track, as complainant, the deceased and the eye-witness were to arrange a vehicle from the main road---Deceased was shown 25 paces ahead of the complainant and the eye-witness, at a place where the deceased had no purpose to visit---Site plan depicted that to the extreme East of the railway track there was a boundary wall of the doctor colony and the railway track being abandoned was often used by the drug addicts and the defence also suggested the same to the witnesses, but no positive reply was given---When all the three reached to the main road, then at what time the deceased went so fast to cover the distance of 25 paces and even the witnesses could not explain that what for the deceased went to the railway track---Complainant also disclosed that he and the eye-witness was fired at, but they escaped unhurt---Had the witnesses been present and had they been fired at, then there was hardly an occasion for them to escape unhurt, but the record suggested that neither they were fired at, nor they were present on the spot---Circumstances established that the prosecution failed to bring home guilt against the appellant---Appeal against conviction was allowed, accordingly.

Muhammad Imran v. The State 2020 YLR 1139 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Arrest of accused and recovery of weapon of offence doubtful---Accused was charged for committing murder of the brother of complainant by firing---Investigating Officer explained that the appellant was arrested by the security in-charge, Central Prison, and that it was he who recovered a .30 bore pistol from his possession---Said Police Official was neither examined in the trial Court, nor his statement under S.161, Cr.P.C., was recorded---Investigating Officer told that the appellant was arrested along with three other suspects, when the appellant was arrested from the spot soon after the incident, then question was for what reason other persons were taken into custody on suspicion---Statement of the Investigating Officer got support from the statement of marginal witness of the recovery memo. through which the pistol was taken into possession---Said witness also disclosed that the appellant was arrested along with three other suspects, when so, then the arrest of the appellant was shrouded in mystery, more particularly, when the very person, who arrested him, was not produced---In respect of arrest of the appellant the prosecution came forward with different explanation through different witnesses---Marginal witness of the recovery memo. explained in his examination in chief that the appellant was arrested by him with the help of a constable and he further explained that after arrest of the appellant a sub-inspector reached to the spot and recovered a .30 bore pistol from the possession of the appellant, but in his cross-examination he narrated the incident in a different manner---Investigating Officer gave self-contradictory statements and when his statements were read with that of the marginal witness, then the arrest of the appellant became disputed---As on one hand marginal witness claimed to have arrested the appellant with the help of one constable, whereas the Investigating Officer in his examination in chief claimed to have arrested the appellant, but in his cross-examination he denied the same and explained the circumstances in a different manner---In his cross-examination marginal witness of recovery memo. confirmed that the appellant was arrested by the Security Officials of Central Jail, whereas in his further statement he disclosed that the appellant along with other suspects was handed over to him in the police station---Regarding the recovery of pistol, therecovery witness stated that when the appellant was arrested by him, a Sub-Inspector was attracted to the spot and recovered a pistol from his possession, but the Investigating Officer in his cross-examination disclosed that it was he who arrested the appellant and recovered a pistol from his possession---When the arrest of the appellant was disputed and when the Investigating Officer as well as marginal witness of recovery memo. contradicted each other regarding the arrest of the appellant, then the recovery from possession of the appellant by the Investigating Officer also did not appeal to mind---Circumstances established that the prosecution failed to bring home guilt against the appellant---Appeal against conviction was allowed, accordingly. State through Advocate General, Sindh, Karachi v. Abdul Hameed and another 1984 PCr.LJ 1508 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Most relevant witness/eye-witness not produced---Adverse presumption---Accused was charged for committing murder of the brother of complainant by firing---Record showed that the complainant was not the eye-witness and the most relevant witness/eye-witness was not produced, so an inference could be drawn that the eye-witness was not ready to support the false claim of the complainant and had he been produced he would have not supported the case of the prosecution---On one hand the complainant failed to establish his presence on the spot, whereas on the other the most important witness was abandoned as wonover, so an adverse inference could be drawn that the witness was not ready to support the false claim of the complainant---Such like situation was covered by Art. 129(g) of the Qanun-e-Shahadat Order, 1984---Circumstances established that the prosecution failed to bring home guilt against the appellant---Appeal against conviction was allowed, accordingly. Riaz Ahmed v. The State 2010 SCMR 846 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence not proved---Accused was charged for committing murder of the brother of complainant by firing---Record showed that the pistol was recovered on 24.02.2020 and so were the empties, but the same were received in the laboratory on 28.02.2020, i.e. after four days of its recovery---Investigating Officer could not explain the delay---As on one hand the witnesses remained inconsistent on the arrest and recovery of pistol from possession of the appellant, whereas on the other the recovery memo. was prepared on the next day and signed by the marginal witness in the police station, so its recovery from the appellant was shrouded in mystery and the contradictory statements of the witnesses questioned its authenticity---As the recovery of the weapon was not in accordance with law and as the same was sent to the Firearms Expert after long four days of its recovery so it's safe custody and its safe transmission to the firearms expert could not be established---Thus, the Court lurked no doubt in its mind that said piece of evidence had lost its utility and the same could not be taken into consideration---Circumstances established that the prosecution failed to bring home guilt against the appellant---Appeal against conviction was allowed, accordingly. Bakht Munir v. The State 2016 MLD 934 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the brother of complainant by firing---Motive was given as previous blood feud between the parties, but neither the complainant, nor the Investigating Officer could collect any evidence in that respect and even no independent witness was examined to confirm the involvement of the deceased in the earlier episode, so the prosecution failed to establishthe motive---Absence or weakness of motive would hardly be a circumstance to be taken for the acquittal of an accused, but once the eye-witness account failed, then the absence of motive could be taken into consideration even for the acquittal of an accused and the present case was no exception---Circumstances established that the prosecution failed to bring home guilt against the appellant---Appeal against conviction was allowed, accordingly. Muhammad Bux v. Abdul Aziz and others 2010 SCMR 1959 rel. Hussain Ali for Appellant. Ayub Zaman, A.A.G. for the State. Batol Rafaqat for the Complainant. Date of hearing: 18th April, 2024. Judgment Sahibzada Asadullah, J.---Through this criminal appeal, appellant has questioned the legality and validity of the judgment dated 03.11.2022, passed by learned Additional Sessions Judge-XI, Peshawar, delivered in case FIR No. 155, dated 24.02.2020, under sections 302 / 324 /34 / 109, P.P.C., registered at Police Station East Cantt:, Peshawar, whereby the appellant has been convicted and sentenced in the following manner:- i. "Under section 302(b), P.P.C., the appellant has been convicted and sentenced to imprisonment for life as Tazir and also to pay compensation amount of Rs. 5,00,000/- in terms of Section 544-A, Cr.P.C. In case of default of payment of compensation, the convict-appellant shall be liable to further undergo simple imprisonment for one year. ii. Benefit of Section 382-B, Cr.P.C has been extended to the appellant." 2. Facts, in brief, as per contents of the FIR (Ex.PA) are that on 24.02.2020 at 11:30 hours complainant Abid Ullah while present with the dead body of his brother at trauma room of Lady Reading Hospital, Peshawar, reported the matter to the police that on the day of incident he along with his deceased brother Ibrar Ullah Khan and Muhammad Raza Khan had gone to the Courts for attending the Court proceedings and on return when they reached to the place of incident, all of a sudden accused Saddam, duly armed with firearms came and opened firing at them with murderous intention, as a result whereof his brother lbrar Khan got injured critically, while they luckily escaped unhurt. His injured brother was shifted to LRH, Peshawar through Rescue 1122, but there he succumbed to the injuries. Motive behind the occurrence was previous blood feud between the parties. The accused Saddam Ali has committed the offence at the instigation of his relatives Nasir Ali Khan and Zahid Ali. He charged the accused for commission of the offence, hence, the FIR ibid. 3. On arrest of the accused and on conclusion of the investigation, challan was submitted before the Court against accused Saddam and co-accused Nasir Ali, Zahid Ali and Amjad Ali. The appellant along with co-accused was summoned and provided copies of the relevant documents under section 265-C Cr.P.C, and thereafter, charge was framed against them, to which they pleaded not guilty and claimed trial. In order to prove its claim the prosecution produced and examined as many as 10 witnesses. Thereafter, statements of accused-appellant and that of the co-accused were recorded under section 342, Cr.P.C wherein, they professed innocence, however, neither opted to produce defense evidence nor wished to be examined on Oath under section 340(2), Cr.P.C. After full-fledged trial, the learned trial Court acquitted the accused Nasir Ali, Amjad and Zahid Ali, whereas the appellant Saddam was convicted and sentenced in the earlier part of this judgment, hence, the instant appeal. 4. The learned counsel for the parties were heard at length along with learned Addl. AG and with their valuable assistance the record was scanned through. 5. In the unfortunate incident the deceased after receiving firearm injuries died on the spot and his dead body was shifted to the hospital through rescue 1122. The matter was reported to the local police by the complainant and after the report injury sheet and inquest report were prepared. The dead body was sent for postmortem examination. The Investigating Officer visited the spot and on pointation of the witnesses prepared the site plan. During spot inspection the Investigating Officer collected blood from the place of the deceased and six (06) empties of .30 bore from the spot. The accused was arrested near from the spot and from his possession a .30 bore pistol was recovered. The pistol and the recovered empties were sent to the firearms expert to ascertain as to whether the same were fired from the recovered pistol. A report was received confirming the fact that the empties were fired from the recovered pistol. The accused faced the trial and conclusion of the trial was convicted and sentenced vide the impugned judgment. 6. The learned trial Court after full dressed trial found the appellant guilty and as such was convicted and sentenced. As in the instant case not only single accused is charged, but the appellant was also shown arrested from the place of incident with a pistol in his possession, so this Court deems it essential to look into the matter by applying extra care and to appreciate the approach of the learned trial Court to the facts and circumstances of the case. True that in case of single accused substitution is a rare phenomenon, but equally true that single accused by itself is not a ground for holding him responsible, unless the prosecution establishes the charges through confidence inspiring and trustworthy evidence. We are to see as to whether it was the spot arrest of the appellant which helped the learned trial Court in pronouncing him guilty or that the learned trial Court did appreciate the attending circumstances of the present case. We are not hesitant in holding that the accused is shown arrested near from the spot and from his personal possession a .30 bore pistol was recovered which wedded with the recovered empties, but this is for the prosecution to tell the manner in which he was arrested and to convince the safe custody of the recovered pistol and its safe transmission to the firearms expert. As this case because of its peculiar circumstances needs extra care, so for the same the entire record was scanned through and we want to reassess the already assessed evidence, so that miscarriage of justice could be avoided. 7. The points for determination before this Court are that; as to whether the incident occurred in the mode, manner and at the stated time; as to whether the witnesses were present on the spot at the time of occurrence and in the hospital at the time of report; as to whether the accused/appellant was arrested soon after the incident and that from his personal possession a .30 bore pistol was recovered; as to whether the recovery of the weapon, its safe custody and its safe transmission to the firearms expert is proved on record; as to whether the same can be taken into consideration for holding the appellant responsible for the murder of the deceased and as to whether the prosecution succeeded in bringing home guilt against the appellant. 8. The tragic incident claimed the life of the deceased and that for the same the appellant is charged, but to ascertain the manner in which the incident occurred and the manner in which the appellant was arrested, it is essential that the statements of the witnesses must be taken into consideration and also the respective recoveries made either from the spot or from the appellant, at the time of his arrest. The complainant while reporting the matter disclosed that on the day of incident he along with the deceased and the eye-witness had come to District Courts, Peshawar, in connection of their pending cases; that after doing the needful, they left the Courts and reached to the place of incident; that the accused attracted to the spot duly armed and started firing at the deceased; The deceased received firearm injuries, died on the spot; that they were also fired at, but they luckily escaped unhurt; that the dead body of the deceased was shifted to the hospital and he reported the matter. The witness was examined on material aspects of the case with the only intention to extract something favourable to the appellant and to confirm his presence on the spot. The eye-witness did not appear before the Court and instead he submitted a sworn affidavit regarding his absence and that of the complainant, at the time of incident. As the eye-witness was not supporting the case of the prosecution, so he was not produced and was declared as won over and as such the complainant is the sole eye-witness. As one of the witness did not support the case of the prosecution and as the complainant is the real brother of the deceased, so we are under obligation to take extra care while determining the fate of the appellant, that too, on the strength of a single eye-witness. We are anxious to know the purpose of his presence on the spot and we are keen to discover that on the day of incident the complainant, the eye-witness and the deceased had come to the Courts to pursue his case. We are to see as to whether the complainant had a case in the Courts and that what evidence is brought on record in that respect. As the complainant is the resident of a village lying away from the place of incident, so it is for the complainant to convince that on the day of incident he, the deceased and the eye-witness visited Peshawar in connection of his pending cases. We despite efforts could not come across any evidence showing his activities, in Courts, on the day of incident. Neither the complainant nor the eye-witness could provide the relevant documents to the Investigating Officer and even the Investigating Officer failed to collect any evidence from the concerned quarters. The complainant could not disclose the nature of his case, the Court he attended and the advocate whose services were hired. When the most relevant evidence was neither collected, nor brought on record so, this Court is hesitant to accept his presence and that of the eye-witness, at the place of incident and at the time of incident, rather this Court is to walk an extra mile to appreciate their presence on the spot. 9. As the complainant and the eye-witness are the residents of village Bakhshu Pull, lying away from the place of incident, so his presence at the spot is to be judged from his presence in the hospital and from the manner in which he reported the matter. It is pertinent to mention that the dead body was collected from the spot by rescue 1122 and that soon thereafter the same was shifted to the hospital, but the matter was reported at 1220 hours after the delay of more than fifty (50) minutes. As the hospital is situated at a little distance from the place of occurrence and as the dead body was collected from the spot by rescue 1122, so the time spent in reporting the matter cannot lightly be ignored. When the same is taken into consideration, it further increases the anxiety of this Court regarding the presence of the complainant at the time of incident and at the time of report. True that the matter was reported by the complainant, but the dead body was neither identified by the complainant, nor the eye-witness, even at the time of report and even at the time of its examination. The identifiers were belonging to the village of the complainant, so their arrival to the hospital at the time of report is a circumstance which indicates that they accompanied the complainant to the hospital after receiving information regarding the incident. The circumstances do tell that the complainant after receiving information regarding the incident reached to the hospital along with the identifiers and thereafter the report was made. As the complainant failed to establish his presence with the deceased and as the purpose to visit Peshawar was not proved through the relevant witnesses, so an impression can be gathered, that first the injury sheet and inquest report were prepared, and thereafter the report was made. We cannot exclude the possibility of preliminary investigation in the present case. 10. In the site plan the accused, the deceased, the eye-witnesses and the police officials are shown at their respective places. The deceased is shown at Point No.1, whereas the appellant at Point No.2. The complainant and the eye-witness are shown at Point No.3 and Point No.4 respectively. The distance between Points Nos.1, 3 and 4 is shown 25 paces, as at the time of incident the deceased was present on the Railway track. This is for the witnesses to tell that when they came…

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