Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: FAIZULLAH VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Abdul Karim Khan Kundi, Sardar Muhammad Raza Khan, Shakirullah Jan Title: FAIZULLAH vs THE STATE Case No.: Criminal Appeal No,19 of 1992 Date of Judgment:1994-09-29 Reported As: 1995 P Cr. L J 510 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SARDAR MUHAMMAD RAZA, J.--- Faizullah son of Sher Jan of Village Rehmani Khel, Dera Ismail Khan has challenged his conviction under section 302/34, P.P.C. Recorded by the learned Sessions Judge, Dera Ismail Khan on 14-7-1992 whereby the appellant was sentenced to imprisonment for life and a fine of Rs,20,000 etc. Etc. Connected therewith is a Criminal Revision No,7 of 1992 filed by Mst. Sakeena the complainant in the case and also wife of Muhammad Ali deceased, who seeks the enhancement of sentence through the awarding of normal penalty of death. 2. Brief background of the case is that the deceased Muhammad Ali and the accused-appellant Faizullah, were nephew and uncle respectively. On 20-1-1990 at morning sunrise time Muhammad All deceased went out from his Kotha towards the courtyard when Faizullah appellant alongwith his two sons Shaukatullah and Javed (the absconders), who were present armed beside the wall of the house, opened fire at Muhammad Ali with which he got hit and fell injured. His wife Mst. Sakeena, the complainant, rushed towards him whereupon Faizullah convict-appellant came near to the injured Muhammad All and fired another shot with which too the injured got hit. There was no previous enmity between the parties, anyhow, the deceased Muhammad All who was serving in the Army had come on leave and was demanding his share of inheritance in the joint property which his paternal-uncle Faizullah accused-appellant persistently refused. 3. When the occurrence was in progress, Rehmatullah the brother of the complainant also reached the spot. About him the complainant Mst. Sakeena says that he (Rehmatullah) might have witnessed the occurrence. The injured was taken to the Police Station Paniala accompanied by the complainant as well, where the lady lodged report as above before Ashraf Zaman, S.H.O. Who recorded it at Serial No,10, prepared the injury sheet Exh.P.W.10/1 and sent the injured to the Hospital
---
## Page 2
at Paniala. The doctor at Civil Hospital Paniala considered the condition of the injured to be serious and referred him to District Headquarter Hospital, Dera Ismail Khan which is 64 kilometres away therefrom. On reaching D.I. Khan the injured Muhammad All succumbed to his injuries and the dead body was again sent to Paniala for post-mortem examination. After lodging the report Mst. Sakeena had gone back to the village alongwith the S.H.O./I.O. Who at her instance prepared the site plan which is Exh.P.W.10/2 on file. All the three accused had gone into abscondence. Faizullah appellant was arrested on 11-9-1990 while his two sons namely Shaukatullah and Javed are still absconding. When at trial, the appellant pleaded not guilty. 4. The prosecution has relied upon the ocular testimony of Mst. Sakeena and her brother P.W. Rehmatullah. Support is sought from the circumstance that the occurrence having taken place in the house of the complainant, she was a natural witness to the occurrence and hence her statement could be taken as true and without corroboration which, according to prosecution, was also sufficiently available. Motive is claimed to be one of such circumstances in addition to the medical report/post-mortem examination, the recoveries of empties, spent bullets, cardboards etc. From the spot and unexplained abscondence of the appellant for almost eight months while his two sons were still absconding. How far the prosecution has succeeded in bringing home guilt to the doorsteps of the accused beyond any shadow of reasonable doubt, is now the taxing job of the Court which, in the circumstances of the present case, has become more intricate and delicate. 5. As a peculiar feature of the present case and to examine the evidence in its true perspective, it would be necessary almost all the time to keep the site plan Exh.P.W.10/2 in view. Whom the prosecution calls a natural witness, is at the same time, being the wife of the deceased, is a highly interested witness and hence I believe that at least some corroboration is required so as to satisfy the judicial mind of a Court regarding her being a truthful witness. An oft-repeated and almost universal is a truth that men may lie but the circumstances do not. As the complainant in the instant case being the wife of the deceased is a highly interested witness and as the occurrence has taken place within the four walls of the house of the complainant ousting almost all possibilities of other eye-witnesses, therefore, it would be the earnest requirement of ordinary prudence to appreciate her statement and that of her brother Rehmatullah in close relevance to the unavoidable circumstances. The job in the instant case is rather difficult but that is what a Cowl is meant for. 6. Reverting to the site plan, the deceased is present at point No,1 when he was for the first time fired at by the three assailants, which fire went amiss. From point No,1 Muhammad Ali deceased rushed towards his Kotha when he was again fired at when he reached point No,1-A. His path from point No,1 towards the Kotha is indicated by arrow marks being the shortest and as the distance would suggest, he would have covered this distance in uninjured condition in about two seconds when he got hit at point No,1-A. In about 5 to 6 seconds more Faizullah accused jumped inside the courtyard, went near to the injured and from point 2-B he fired another shot which hit the deceased at the tip of the shoulder making an exit at the back the missile through which pierced into the ground wherefrom the Investigating Officer had recovered it. All this would have happened, as per natural sequence of the occurrence, in not more than ten seconds but P.W. Rehmatullah was so quick to reach there that the last shot by Faizullah was practically witnessed by him. It is noteworthy as to how at all by hearing the report of the fireshots he came to an instant conclusion that the trouble must have arisen in the house of his sister so that he should rush to the place from the lowest of southern most spot in the site plan to the place of the occurrence which is inside the house. It is also not believable that Faizullah who is so desperate that he kills his own nephew would spare Rehmatullah, the intruder, to appear subsequently as eye-witness in the case. I hold at the outset that Rehmatullah P.W. Was not at all an eyewitness to the occurrence and that is why, in the
---
## Page 3
very F.I.R. His real sister was not sure about him. His presence was mentioned in the F.I.R. In such a manner so as to leave a good range of margin to for. Manipulation on the one hand and also to give a feeling as to how truthful the complainant is. It is not the only reason for which I exclude Rehmatullah but there are many other discrepancies which would be referred at the relevant places from time to time. 7. Eliminating Rehmatullah from being an eye-witness, I happened to cultivate serious doubts about the, conduct of the prosecution which has produced him as one. This provides an occasion to be all the more conscious about the only eye-witness Mst. Sakeena. The F.I.R. Is a mixture of generalised statements so that those be improved upon and explained in a manner suited to the prosecution. This also would be referred to from time to time. The first to be mentioned in this behalf is that the purpose of the deceased of going out, is kept dubious in the F.I.R. By merely stating that he went out towards the courtyard. As there was no reason for being out of Kotha in that early and chilly morning, therefore, it was improved upon during Court statement that the deceased went out to ease himself but normally people do not ease themselves within a courtyard and it was said at times that he sat at point No,1 to urinate. It is admitted by Mst. Sakeena that at the time of first volley of fire shots, she was sitting inside the Kotha in front of the hearth. If this was so, it is not as to how she saw the three assailants at points Nos.2, 3 and 4 in the site plan. By the time he got hit by the fire originating from points Nos.2-A. 3-A and 4-A, the complainant had come out and had taken the injured in her lap with which her clothes had become blood-smeared. These were shown to the police as well but the Investigating Officer was quite unintelligent not to have taken such clothes into possession. P.W. Rehmatullah never mentioned about his sister having ever taken the deceased into her lap. From her Kotha she came out at point No,5 whereas she should never have gone beyond point No,1-A where her husband had fallen and where Faizullah had come to, merely to fire a last shot at the deceased so that the matter is finished. It is again highly unbelievable that Faizullah accused would jump from the wall, would get closer to the deceased in order to finish his enemy, would fire a shot from a close range and would still choose only the tip of a shoulder to be the desired target. He could very well have shot on the chest, heart and brain, which are always more fatal a target than a tip of a shoulder. It appears to be a marvel of investigation and all the manipulations were done only to support an injury that otherwise appears to have been caused from close range. It was only for this reason that the story of jumping down the wall and firing from a close range was introduced for the first time at trial with no reference at all in the F.I.R., in specific detail. 8. The very first version that the deceased was fired at when he sat to urinate at point No,1 is not true because, given the short distance and the three desperate persons attacking a cousin and a nephew, only a blind man would miss in such a triple alliance. Point No,1 at the site plan was only introduced as against points Nos.2, 3 and 4 of the accused so that some bullet/pellet marks on a shoulder at point No,B and in the background at "C" and "D" are justified. Some depressed lead bullets were recovered from "C" and "D". If the assailants were bent upon killing the deceased Muhammad Ali they could have very well done it from points Nos.2, 3 and 4. Even if they had missed once (which I do not believe), they could shift the aim at the running deceased without wasting a time in shifting to points Nos.2-A, 3-A and 4-A. This lengthy exercise seems to be another mala fide of the investigation which is done only to justify the recoveries and also the alleged presence of Mst. Sakeena. 9. The deceased is hit at point No,1-A at a time when three assailants are at points Nos.2-A, 3-A and 4-A who are hardly six paces away from the deceased. The three assailants sufficiently armed at a distance of only six paces could easily blow the deceased into pieces but still Faizullah the oldest of all behaved like a chip, scaled over the wall and went inside the house of the deceased to give him a fatal shot which, as per location thereof, was not fatal either as compared to the already caused
---
## Page 4
injuries which were on the head. Such immature and dangerous attitude would have been shown by his younger sons and not by an old man like the appellant. The entire effort seems to have been done to justify the recoveries from points Nos.H, K and P. 10. The medical report, as alleged by the prosecution and also accepted by the learned Sessions Judge, does not go to prove the case of the prosecution. One injury, as seen in the skiagram, is so close to the other that it is totally impossible that the victim would have remained still until he received the other and still another and that too within the radius of about 3 to 4 inches. The very first impression that one gets from having a look at the skiagram is that it was one fire shot preferably from a shotgun with larger pellets that proved fatal. The recovery of spent pellets of .303 bore from the earth has confused the Investigating Officer who could despite his best efforts bring about reconciliation in the so-called ocular testimony and the circumstances. A general time of occurrence like "Tuloo-e-Aftab Vela" is purposely written in the F.I.R. So as to keep a safe margin. 11. It is admitted by Mst. Sakeena that her mother-in-law Mst. Banuchai who has now married another uncle named Ayaz of the deceased, owned a Kotha in the same house. The accused in his statement has alleged that Mst. Banuchai and her husband Ayaz also lived in the same house and this entire trouble is created by Ayaz. In this background when it was suggested to Mst. Sakeena if Ayaz and Mst. Banuchai were also present in the crime house at the time of occurrence, she negated the suggestion but at the same time the said Ayaz who was a prosecution witness was abandoned by the prosecution. The possibility cannot be ruled out that Mst. Banuchai and her husband Ayaz, another uncle of the deceased were also present at the time of occurrence and Ayaz is abandoned only because the prosecution was afraid of the consequences that might ensue. It may be pointed out at this juncture that said Ayaz, the brother of the accused was neither a common witness to the recoveries on record nor a witness in Column No,4 of the inquest report nor the one who identified the dead body at the time of post-mortem examination and hence there was no justification for him to have been abandoned. What conclusion I want to draw step by step is that either Mst. Sakeena despite being in the house had not seen the occurrence that took place outside the Kotha in the early hours of the morning or she is deliberately suppressing the real facts in putting the occurrence in a manner other than the one in which it took place. The benefit of all these discrepancies is bound to go to the accused. 12. What I have arrived at, is not mere conjecture or surmise but is sum total of all negations made by circumstances. I now attend to one circumstance whereby the presence of Mst. Sakeena or her witnessing of the occurrence is altogether excluded by her own statement-in-chief when she says uninterrupted that she alongwith others took her deceased husband to the police station for making the report, who, succumbed to his injuries on his way to the police station. This is such a blunder in her statement that knocks at the very root of the prosecution case. It is an undisputed fact that the injured Muhammad Ali died at D.1. Khan as per endorsement made by the doctor at 10-30 a.m. And was fully alive at the time when he was being taken to the police station. If the wife says with utmost certainty that her husband died on his way to the police station, it clearly indicates that she was not accompanying the injured. Obviously, she was not accompanying because she had not witnessed the occurrence, had not taken her husband into her lap and her clothes were never blood smeared and that is why were never taken into possession by the police. Rehmatullah only alleged that his sister had given support to her husband. It is not known as to when it so happened and when the facts narrated by the lady did not happen. The prosecution has throughout suppressed the material facts from the Court under the expectation that the deposition of the lady would be taken for granted despite the fact that she has created a yawning gap and void in the story of the prosecution. 13. While running away accused Faizullah left no footprints or scratch marks on the wall because according to the Investigating Officer, it was made of stones whereas according to Rehmatullah,
---
## Page 5
the close relative of the deceased, the intervening wall was Katcha and made of mud. One of them has not seen the wall at all and that one could be the Investigating Officer because Rehmatullah being the closest of the relatives cannot be excluded. The site plan should have been prepared at the instance of Mst. Sakeena but Rehmatullah says that it was prepared at his instance in spite of the fact that at the admitted time of preparation of site plan, Rehmatullah was with the injured or the dead, at the Hospital. If we exclude his presence as well as the presence of Mst. Sakeena at the time of preparation of site plan, we are left only with the Investigating Officer who certainly has prepared the site plan with his own maneouvring by fitting in Mst. Sakeena as eye-witness. All these discrepancies and utter negation by circumstances lead me to hold that Mst. Sakeena has not witnessed the occurrence and thus has put forth the occurrence in a manner in which it did not take place. Both ways, the case of the prosecution is rendered highly doubtful. 14. Coming to the motive, it is distinctly relied upon to the effect that the deceased wanted the share of his inheritance in the joint property. So far as the landed property is concerned, not a single paper from Revenue Record is placed on file to prove that there was any possibility of their having a joint property. No oral evidence was even examined to prove that they owned a joint property which was never partitioned. So for as the residential property is concerned, the very site plan shows that the parties had separate and independent houses and the one in which the occurrence took place was the house of Muhammad Ali deceased. It is admitted by Mst. Sakeena that one Kotha in the said house is even today owned by Mst. Banuchai who is the mother of the deceased and who has contracted marriage with another uncle of the deceased. The ownership of the mother would rather suggest that she stands given her share in the property of her husband. It is not known as to how the deceased remained deprived. The prosecution has, therefore, not proved the motive which rather boomerangs at it. The learned Sessions Judge was quite unjustified to state here that the accused has not been able to properly answer some suggestions to that effect. No accused can be bound down for not properly answering some suggestions or for not making some proper suggestion until and unless it is either some admission or some grave contradiction occurring within the statement. 15. Even if one considers the alleged one to be a motive between the parties which the prosecution has not proved yet the resort to killing would be justified if made by the deceased, rather the other way round because the accused uncle could refuse partition without resorting to killing. On the one hand the motive is not plausible, on the other hand, once again I would say, that the real manner of the occurrence is suppressed. One may remind that according to P.W. Rehmatullah even Ayaz has also received his share in the property. It is probably this fear under which P.W. Ayaz was abandoned. 16. There are other recoveries from the spot as well but it is not proved that the empties found on the spot were ejected under all circumstances by the gun of the accused-appellant. 17. Coming to the judgment of the learned Sessions Judge, his reasoning for coming to the conclusion that he arrived at, was not judicial. He was impressed by the fact that Mst. Sakeena being the inmate of the house was a natural witness to the occurrence is not a gospel truth for all times. Being natural witnesses, people sometimes tell lies and this by itself is no proof of the fact that the witness is telling the truth. As already remarked by me somewhere in the earlier portion of the judgment, no doubt Mst. Sakeena was the resident of that house where the occurrence took place but it is not necessary that in that early hours of the morning she must have witnessed all that occurred on the spot. May be she was inside the Kotha. May be she was asleep and may be she is seriously twisting the material facts in order to suppress the part that her husband played and that is why the real manner of the occurrence seems to be altogether different. The reasoning of the learned trial Judge at page 6 of his original judgment that by not cross-examining Mst. Sakeena qua the presence of Rehmatullah, the defence "in a way" has admitted P.W. Rehmatullah
---
## Page 6
to be an eye-witness, is utterly devoid of judicial norms of appreciation of evidence. It was also the duty of the trial Court to have looked into the intrinsic value of the statement of Rehmatullah and not to have damaged the defence "in a way". The learned trial Judge was also wrong in concluding that why Mst. Sakeena and P.W. Rehmatullah would charge the accused falsely and let the actual culprits go scot free. Such type of argument is attracted only in case of a single charge and that too under extremely limited circumstances. Even otherwise the conclusion is based on presumption that P.W. Rehmatullah was present on the spot whereas, the very presence of Mst. Sakeena is doubtful. The learned trial Judge has again wrongly concluded that the medical evidence supports the case of the prosecution. As discussed by me, all the injuries on the face can be caused by single fireshot and hence it rather negates the prosecution story. Moreover, the injuries are not to be distributed among the assailants as if the cartridge is used, it can cause scores of injuries with only one finger at the trigger. The trial Judge says that injuries Nos.4 and 6 are not possible with one fire shot, as per doctors' opinion but at the same time three persons attempting twice and one of them thrice would also not cause the small number of injuries like those caused to the deceased, rather, their missing the target at the first instance is impossible. I have already disagreed with the trial Court when it considers to motive as proved simply because the explanation offered by the accused in his statement was not plausible. The prosecution is bound to prove its own case despite the implausibility and unreasonableness of the defence. I The learned trial Judge himself seems to be not convinced and satisfied of the prosecution evidence and thus avoided the normal penalty on another wrong pretext that it was not known as to what had actually happened immediately before the occurrence. Exactly this was the situation which can be put another way by saying that the occurrence has not taken place in the manner in which it is put forth by the prosecution. In view of the previous motive the assailants allegedly had fired at the deceased. In these circumstances when the fire is opened from behind the wall or from an ambush, there is no occasion for the parties to enter into a dialogue so that one should seek for the fact as to what actually happened immediately before the occurrence. Such factors are sought only when there is some quarrel between the parties on the spot and when some dialogue takes place before the occurrence. If any such thing has happened in the instant case, it is suppressed by the prosecution who has concealed the manner in which the occurrence really took place. 18. Although the circumstances are not exactly similar but the Supreme Court in Ashiq Hussain v. The State 1993 SCMR 417 has laid down a principle that if defence has failed to substantiate any plea, this by itself does not improve the case of the prosecution and the benefit is still to be extended J to the accused. I do not believe that in every case one cannot place reliance on the sole testimony of a single eye-witness but it varies from case to case where sometimes a single witness is truthful beyond doubt and sometimes tens are not. Anyhow, the safer dispensation of justice is to seek corroboration in case of single eye-witness who in matter of interest cannot be isolated from the deceased. In the present case, the wife cannot be taken as disinterested witness and the above discussion on each aspect of the case has proved that she could not stand the acid test of credibility laid down by the superior Courts. This becomes all the more pronounced when one stands confronted with an F.I.R. That seems to have been recorded after thorough investigation on the spot rather even after the preparation of the site plan and making all the recoveries involved. In view of the prosecution having not proved its case, the factum of abscondence cannot be taken against the accused. Consequently, the .Appeal is accepted, the impugned conviction and sentences, dated 14-7-1992 recorded by the learned Sessions Judge, D.I. Khan is set aside and the accused if not required to be detained in any other case, is directed to be released forthwith. As two accused are absconding, the case property may be kept intact. The connected criminal revision is hereby dismissed.
---
## Page 7
' MIAN SHAKIRULLAH JAN, J.--- I am having the privilege of having gone through the judgment of my learned brother but regret to express my inability to subscribe to the view taken by him and also with some of the reasons advanced in this respect. 2. The facts need not to be renarrated as have been given in…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.