Full Judgment Text & Judicial Ruling

2026 Y L R 978

2026 Y L R 978 [Peshawar (Bannu Bench)] Before Sahibzada Asadullah and Kamran Hayat Miankhel, JJ Zahir Abbas---Appellant Versus The State and another---Respondents Criminal Appeal No. 326-B of 2023, decided on 7th March, 2024. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 354, 452 & 506---Qatl-i-amd, House-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, criminal intimidation---Appreciation of evidence---Matter reported to the police within forty minutes---Promptness---Accused was charged for committing murder of the sister of complainant by firing---Unfortunate incident occurred at 04:00 p.m.; the matter was reported to the local police in the police station at 04:40 p.m., whereas the FIR was chalked out at 05:10 p.m., so apparently the matter was promptly reported---Incident occurred inside the house of the deceased and the matter was reported by the complainant i.e. brother of deceased and verified by the eye-witness i.e. sister of deceased---Complainant stated that on the day of incident he along with his family members was present in the house; that the accused/appellant entered the house, duly armed and warned them not to move and dragged the deceased towards the main gate of the house; that deceased resisted and the appellant fired at her; that after receiving firearm injuries the deceased fell on the ground; that eye-witness/sister of deceased wanted to catch hold of the accused and during struggle her shirt was torn and accused decamped from the spot---Dead body was shifted to the police station, where the matter was reported---Eye-witness narrated the events which led to the tragic incident and she also supported the report of the complainant---Said witnesses were put to the test of searching cross-examination, but the witnesses remained consistent on material aspects of the case---In this particular case it was not only the eye-witness account which was taken into consideration, rather the official witnesses also remained consistent in respect of shifting of dead body from police station to the hospital and in respect of the time at which the matter was reported, the documents were prepared and the dead body was received by the Medical Officer---Complainant disclosed that during the days of incident he was posted in Frontier Constabulary and it was on an official visit that he accompanied his high-ups and it was on their permission that he visited his house on 27.12.2018 and remained there---Said witness disclosed that it was 04:00 p.m., when the accused/appellant entered the house, wanted to take away the deceased, but on her resistance she was done to death---As the dead body was hurriedly shifted to the police station and the matter was reported within 40 minutes of the occurrence, so the prompt report by itself confirmed that no consultation and no deliberation was made---Appeal against conviction was dismissed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 354, 452 & 506---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, criminal intimidation---Appreciation of evidence---Presence of eye-witnesses at the spot not doubtful---Accused was charged for committing murder of the sister of complainant by firing---Complainant explained that he was present at distance of 15 feet from the appellant and that when the appellant dragged the deceased, he came few feet forward, but when the deceased was fired at, the eye-witness rushed to the appellant and attempted to catch hold of him---Said witness further explained that during the struggle the shirt of the eye-witness was torn and the accused/appellant decamped from the spot---When the eye-witness was examined in that respect, she explained the circumstances, as were explained by the complainant---When the statements of these two witnesses were juxtaposed, this court could not come across the slightest variation between the two, rather the witnesses remained exact and accurate regarding the manner in which the incident occurred and regarding their individual responses at the time and after the incident---Said witnesses were asked regarding the remaining family members, who explained the same and when the Investigating Officer was asked as to why he did not record statements of the remaining inmates of the house, he explained that three of the brothers of the complainant were drivers by profession and were not available and that he did not record the statements of the remaining family members---Presence of the eye-witness could not be doubted, as it was she who attacked the appellant and it was during the scuffle that she got her shirt torn and the same was taken into possession by the Investigating Officer and the same was duly exhibited---Manner in which the circumstances were explained was so accurate and despite efforts the defence could not create even a small dent to persuade the mind of this Court otherwise---Incident occurred inside the house and as admittedly the dead body was hurriedly shifted to the police station, so the witnesses being inmates of the house were very much available and they accompanied the dead body from the spot to the police station---If an attempt was made to procure witnesses, then instead of female eye-witness the prosecution would have planted a male member from the house, but it did not---Attending circumstances of the present case left no ambiguity regarding the presence of the witnesses at the time of occurrence and at the time of report---As the incident occurred inside the house, so availability of identifiers in the hospital with the dead body was natural---Appeal against conviction was dismissed, in circumstances. (c) Criminal trial--- ----Related witnesses, evidence of---Scope---Mere relationship of the witnesses will hardly be a ground for excluding their presence on the spot, unless the defence succeeds to convince that the witnesses have an interest to falsely implicate. Imran Mehmood v. The State and another 2023 SCMR 795 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 354, 452 & 506---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, criminal intimidation---Appreciation of evidence---Non-examining of inmates of house as witnesses---Inconsequential---Accused was charged for committing murder of the sister of complainant by firing---It was alleged by defence that Investigating Officer did not record the statements of other inmates of the house---However, Investigating Officer confirmed that three brothers of the complainant were drivers by profession and were not available in the house, so he recorded the statements of the eye-witness---Non-examination of some witnesses by itself was not a determining factor and it could not be weighed in favour of the appellant---As admittedly, two trustworthy and reliable witnesses were examined, so it was not the quantity, but the quality of evidence which the prosecution must produced---It was evident from record and so confirmed by the witnesses that the appellant was the resident of the same village and that he was interested in marrying the deceased---Record showed that the deceased was already engaged to one "TZ", but even then the appellant was pressing for her hand and it was his stubbornness which persuaded him to kill the deceased---Statements of the mother of the deceased and that of "TZ" were not recorded, but the choice of witnesses was for the prosecution to exercise, and non-production of a witness did not damage the rest of their evidence---Appeal against conviction was dismissed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 354, 452 & 506---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, criminal intimidation---Appreciation of evidence---Recovery of crime empty from the spot---Reliance---Accused was charged for committing murder of the sister of complainant by firing---Evidently, no spent bullet was recovered and no bullet mark was noted on the walls of the house, but as two empties were recovered from the spot and two injuries were received by the deceased, so the circumstances told that the appellant fired two fire shots---Collected empties were sent to the Firearms Expert to ascertain that from how many weapons the same were fired---After examining the same a comprehensive report was received, telling that the same were fired from one weapon---As single accused was charged and as it was he who fired at the deceased, so the laboratory report had supported the prosecution case to a great extent---True that laboratory report was supportive in nature, but equally true that once veracity of the witness was not shattered, then that piece of evidence could be taken into consideration and as such considered---Appeal against conviction was dismissed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 354, 452 & 506---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, criminal intimidation---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the sister of complainant by firing---Medical evidence fully supported the ocular account---Witnesses disclosed that the deceased was dragged and then fired upon---Interesting to note that the firearm entry wounds on the frontal temporal region were having tattoo around it---Presence of tattooing sufficiently explained that the deceased was fired at from close range and the same confirmed the statements of the witnesses, who disclosed that the deceased was dragged and fired---Medical evidence was in harmony with the ocular account---Consistency between the two had established the prosecution case beyond doubt and it confirmed that the incident occurred in the mode and manner and at the stated time---Appeal against conviction was dismissed, in circumstances. Ansar and others v. The State and others 2023 SCMR 929 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 354, 452 & 506---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, criminal intimidation---Appreciation of evidence---Motive proved---Accused was charged for committing murder of the sister of complainant by firing---Motive was stated to be the demand of the hand of the deceased and that as the deceased was engaged to one "TZ", so the demand of the appellant could not be fulfilled---Apart from the eye-witnesses, no other witness was examined, but as there was no previous ill-will between the parties, so the arrival of the appellant to the house and killing of the deceased were circumstances that lent credence to the prosecution's position, that the appellant was interested in marrying the deceased---Unfortunate incident occurred inside the house and the deceased was targeted, despite the fact that other family members were present, so it confirmed the interest of the appellant in the deceased and that he wanted to have her at any cost---Appeal against conviction was dismissed, in circumstances. (h) Criminal trial--- ----Motive---Acquittal---Scope---Weakness or absence of motive hardly justifies acquittal if the charge is otherwise established---Absence of motive will hardly be a circumstance for the acquittal of an accused, provided the prosecution otherwise succeeds in establishing its charge and in proving the guilt of the accused. (i) Penal Code (XLV of 1860)--- ----Ss. 302(b), 354, 452 & 506---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, criminal intimidation---Appreciation of evidence---Absconsion of the accused---Accused was charged for committing murder of the sister of complainant by firing---Appellant remained absconder for sufficient long time till his arrest on 20.11.2019---Appellant failed to explain that why he did not surrender to the law enforcement agency, soon after the incident---True that abscondence alone would hardly be circumstance for the conviction of an accused, but when the prosecution succeeded in establishing its case and when the witnesses confirmed their trustfulness, then abscondence as a circumstance could be taken into consideration---As the witnesses remained firm and consistent, so the unexplained abscondence was a circumstance which was to be read in favour of the prosecution---Appeal against conviction was dismissed, in circumstances. (j) Penal Code (XLV of 1860)--- ----Ss. 302(b), 354, 452 & 506---Criminal Procedure Code (V of 1898), Ss. 435 & 439---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or criminal force to woman with intent to outrage her modesty, criminal intimidation---Appreciation of evidence---Enhancement of sentence---Brutal and inhumane nature of offence---Accused was charged for committing murder of the sister of complainant by firing---In order to do justice with the little soul of the deceased, this court deemed it imperative to reevaluate the sentencing of the appellant---In criminal justice in general and in the given circumstances of case in particular, this Court could not afford to be carried away in either direction---Said balance between rights of the individual and the community was a tight rope walk---Trial Court decided to award the lesser sentence, but it apparently failed to fully appreciate the manner the deceased was done to death---Circumstances of the present case left little for the absence or weakness of motive---Accused acted brutally and acted inhumanly---What justification was available to the convict to kill, that too, by trespassing into the house---Spot was proved, the witnesses were consistent and the matter was promptly reported---Convict deserved the major penalty of death, as that would be the appropriate punishment and would commensurate with the gravity of the offence and would reciprocate what the appellant did---Criminal revision petition was allowed to the extent of conviction under S.302(b) P.P.C, by enhancing the sentence from life imprisonment to death, in circumstances. Muhammad Akhtar Ali v. The State 2000 SCMR 727 rel. Muhammad Anwar Khan Maidad Khel for Appellant. Habib Ullah Khan, A.A.G for the State. Salah-ud-Din Khan Marwat for the Complainant. Date of hearing: 7th March, 2024. Judgment Sahibzada Asadullah, J.---Through this single judgment we intend to decide the instant criminal appeal as well as the connected Cr.R. No.51-B/2023 "Munir Khan v. The State etc", as both the cases are the outcome of one and same judgment dated 12.07.2023, passed by learned Additional Sessions Judge-I, Lakki Marwat, delivered in case FIR No.890 dated 30.12.2018 under sections 302/506/452/354 P.P.C, Police Station Lakki, whereby the appellant was convicted and sentenced in the following manner:- i. Under section 302 (b) of the Pakistan Penal Code, 1860 the appellant is sentenced thereunder to imprisonment for life (R.I) as Ta'zir with payment of compensation of Rs.4,00,000/- (four lac) to the legal heirs of deceased under section 544-A Cr.P.C, recoverable as arrears of land revenue or in default to undergo simple imprisonment for a period of six months. ii. The accused was also held guilty of trespassing into the house of complainant in order to commit offence punishable with death, he was convicted under section 449 of the Pakistan Penal Code, 1860 and was sentenced to Rigorous Imprisonment for 06 years and payment of Rs.10,000/- as fine, recoverable as arrears of land revenue or in default to undergo simple imprisonment for a period of three months. iii. The accused was also held guilty of criminally intimidating the complainant Muneer Khan and eye-witness Mst. Nasreen Bibi by threatening to cause their murders or grievous hurt by aiming his pistol at them and was convicted under section 506 (ii) of the Pakistan Penal Code, 1860 and was sentenced thereunder to Rigorous Imprisonment for three years and payment of Rs.10,000/- as fine, recoverable as arrears of land revenue or in default to undergo simple imprisonment for a period of one month. All the sentences shall run concurrently. The convict was given the benefit of Section 382-B of the Code of Criminal Procedure." 2. The facts merging from the contents of FIR are that on 30.12.2018 at 16:40 hours complainant Munir Khan brought the dead body of his sister Mst. Salma Bibi to the police station in a Datsun pickup with the help of co-villagers and reported the matter to the police that on the day of incident he along with his sisters Mst. Nasreen Bibi and deceased Salma Bibi were present in their house, when the accused Zahir Abbas armed with 30 bore pistol entered into their house, grabbed the hand of Mst. Salma Bibi and forcibly tried to take her along. When he (the complainant) and his sister Mst. Nasreen Bibi tried to intervene, the accused aimed his pistol at them and threatened to kill them. The accused tried to take Mst. Salma Bibi along with him, but she resisted due to which he got annoyed and fired at her, as a result whereof she got injured and fell down. In the meanwhile Mst. Nasreen Bibi tried to catch hold of the accused and during scuffle with accused, right sleeve of her shirt was torn and the accused managed to decamp. The complainant party being empty handed could do nothing and when they attended Mst. Salma Bibi, she breathed her last. Motive for the offence was that accused had demanded the hand of Mst. Salma Bibi, but they had refused, as she was already engaged to one Tariq Zaman. He charged the accused for commission of the offence, hence, the present FIR. 3. After arrest of the accused and completion of investigation, complete challan was put in Court. The provisions of Section 265-C Cr.P.C were complied with and charge was framed against the appellant to which he pleaded not guilty and claimed trial. In order to substantiate its claim, prosecution produced and examined 10 PWs. After closure of the prosecution evidence, statement of accused was recorded under section 342 Cr.P.C, however, neither he opted to be examined on oath under section 340 Cr.P.C, nor wished to produce evidence in defence. The learned trial Court, after conclusion of the trial, found the appellant guilty of the charge and sentenced him as mentioned in the earlier part of this judgment, hence, this appeal. 4. We have considered the submissions of learned counsel for the parties, along with learned A.A.G for the State and with their valuable assistance the record was scanned through. 5. It was on 30.12.2018 when the deceased lost her life, owing to firearm injuries, the dead body was shifted to the police station, where the complainant reported the matter and the eye-witness verified the same. The injury sheet and inquest report were prepared and the dead body was sent for postmortem examination. The investigating officer received copy of the FIR, visited the spot and on pointation of the witnesses prepared the site plan. During spot inspection blood stained earth was collected from the place of the deceased and two empties of .30 bore from the place assigned to the accused/appellant. The accused after commission of the offence went into hiding till his arrest on 20.11.2019.The appellant faced the trial and on conclusion of the trial the learned trial Court was pleased to convict and sentence him, vide the impugned judgment. 6. The learned trial Court appreciated the evidence and statements of witnesses and found the appellant guilty. As single accused is charged that too for the murder of a 16-year-old minor girl, so this Court is to see as to whether the prosecution succeeded in bringing home guilt of the appellant and as to whether the learned trial Court was justified in picking the sentence it did. There is no denial to the fact that in case of single accused substitution is the rarest phenomenon, but it by itself will not be the only determining factor, rather the prosecution is to collect independent evidence and the Courts are to apply their judicial mind with extra caution, so that justice is not miscarried. 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 witnesses were present at the time of incident and that the report was made by the complainant; as to whether the incident occurred inside the house of the complainant and that the medical evidence supports the case of the prosecution and as to whether the prosecution succeeded in bringing home guilt against the appellant. 8. The tragic event resulted in the untimely death of a young girl who had yet to experience the fullness of life. The motives driving the accused to commit the crime, as well as the manner in which the victim was killed, necessitate a thorough reevaluation of the available evidence. In order to resolve the controversy, we deem it essential to go through the statements of the witnesses. The unfortunate incident occurred at 1600 hours, the matter was reported to the local police in the police station at 1640 hours, whereas the FIR was chalked out at 1710 hours, so apparently the matter was promptly reported. The incident occurred inside the house of the deceased and that the matter was reported by the complainant i.e. her brother and verified by the eye-witness i.e. her sister, so this Court is to confirm from record the availability of these two witnesses at the time of incident and thereafter. The complainant was examined as PW-6, who stated that on the day of incident he along with his family members was present in the house; that the accused/appellant entered the house, duly armed; warned them not to move and dragged the deceased towards the main gate of the house; that the deceased resisted and the appellant fired at her; that after receiving firearm injuries the deceased fell on the ground; that Mst. Nasreen wanted to catch hold of the accused and during struggle her shirt was torn; that the accused decamped from the spot; the dead body was shifted to the police station, where the matter was reported. The eye-witness was examined as PW-7, who also narrated the events which led to the tragic incident and she also supported the report of the complainant. The witnesses were put to the test of searching cross-examination, but the witnesses remained consistent on material aspects of the case. In this particular case it is not only the eye-witness account which was taken into consideration, rather the official witnesses also remained consistent in respect of shifting of dead body from police station to the hospital and in respect of the time at which the matter was reported, the documents were prepared and the dead body was received by the doctor. The complainant disclosed that during the days of incident he was posted at Mir Ali in Frontier Constabulary and it was on an official visit that he accompanied his high-ups to D.I.Khan and it was on their permission that he visited his house on 27.12.2018 and remained there. He further disclosed that it was 1600 hours, when the accused/appellant entered the house, wanted to take away the deceased, but on her resistance she was done to death. 9. It is pertinent to mention that during spot inspection the respective places were shown to the investigating officer and the site plan depicts the initial places, where the witnesses, the deceased and the accused/appellant were present and the subsequent places, when the deceased was dragged and fired at. The witnesses were examined regarding the manner in which the incident occurred and regarding the places where they, the deceased and the appellant were present. The complainant explained that he was present at distance of 15 feet from the appellant and that when the appellant dragged the deceased, he came few feet forward, but when the deceased was fired at, the eye-witness rushed to the appellant and attempted to catch hold of him. He further explained that during the struggle the shirt of the eye-witness was torn and the accused/appellant decamped from the spot. When the eye-witness was examined in this respect, she explained the circumstances, as were explained by the complainant. When the statements of these two witnesses are juxtaposed, we could not come across the slightest variation between the two, rather the witnesses remained exact and accurate regarding the manner in which the incident occurred and regarding their individual responses at the time and after the…

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