Palwasha Nageen vs State

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

Criminal Appeal No.589 of 2024 Palwasha Nageen Vs. The State

Date of hearing: 24.02.2025

Appellant by:- Mr. Nissar Abbas Jorra, Advocate.

State by:- Mr. Naveed Ahmad Warraich, DPG with Asghar SI.

Complainant by:- Mr. Athar Yar Khan Awan, Advocate.

SADAQAT ALI KHAN, J. Appellant (Palwasha Nageen) being juvenile has been tried by the trial Court in private complaint offences under Sections 302, 109, 148 & 149 PPC arising out of case FIR No.36 dated 02.04.2021, Police Station Musa Khel, District Mianwali and was convicted and sentenced vide judgement dated 04.07.2024 as under:- Palwasha Nageen (appellant)

u/s 302(b) PPC Sentenced to imprisonment for life as Tazir with compensation of Rs.500,000/- to the legal heirs of Fateh Khan (deceased) u/s 544-A Cr.P.C and in default whereof to further undergo simple imprisonment for six months.

Benefit of Section 382-B Cr.P.C was extended in her favour.

2.Heard. Record perused.

3.Statedly, Fateh Khan was done to death at the hands of his wife Palwasha Nageen (appellant) in his house on 02.04.2021 at 11.30 a.m., on the instigation of her co- accused (Ameer Abdullah Khan (father), Sami Ullah Khan, Kaleem Ullah Khan (brothers) and Ghafoor Ullah Khan (paternal uncle of appellant), since acquitted in separate trial) whereafter FIR was lodged on the same day at 12.50 (noon) on the statement of his brother Muhammad Ameer KhanPW-9 who while claiming himself to

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be the eyewitness of the occurrence stated in his statement before the trial Court as under:- “On 02.04.2021, I alongwith my brothers Abdul Aziz and Beram Khan were present at our house at about 11.30 a.m. My brother Abdul Aziz was watching T.V while Beram Khan and I were present inside the courtyard. My brother Fateh Khan aged about 27/28 years was lying in the room of same house while his wife Palwasha Nageen daughter of Ameer Abdullah Khan was also present with him inside the same room. All of a sudden, upon hearing the voice of fire, we proceeded towards the said room and saw that Palwasha Nageen, accused present in the court, armed with rifle 44 bore fired on my brother Fateh Khan which hit on the left side of his skull near the left temporal region of his head which exit from right side of his skull. Palwasha Nageen while brandishing the rifle 44 bore extended threat us not to come near to her and she succeeded to escape from the spot towards eastern side. We shifted Fateh Khan brother in injured condition through a private Dalla to R.H.C Musa Khel but he succumbed to the injuries.

Motive behind the occurrence was that Fateh Khan contracted love marriage with Palwasha Nageen about four months prior to the occurrence and parents of Palwasha Nageen were revengeful due to this act and about three days prior to this occurrence, accused Ameer Abdullah Khan s/o Adam Khan, Kaleem Ullah s/o Ameer Abdullah, Sami Ullah s/o Ameer Abdullah and Ghafoor Ullah s/o Adam Khan, all Pathan by Caste, residents of Wandha Adam Khelan Wala (who are family members of accused Palwasha Nageen) were abetting the crime of murdering my brother Fateh Khan at Pull Moharh at the shop of Ghafoor Ullah and delivered their message to Palwasha Nageen and upon their abetment and being revengeful from my brother, Palwasha Nageen committed the murder of my brother Fateh Khan with rifle 44-bore. The occurrence was witnessed by myself alongwith my brothers Abdul Aziz and Beram Khan.”

4.Beram KhanPW-10 (brother of deceased) being eyewitness while appearing before the trial Court has reiterated the same story.

5.Motive of the occurrence was that minor Palwasha Nageen (appellant) had contracted love marriage with Fateh Khan (deceased) about four months prior to the present occurrence without the consent of her parents who had its grudge.

6.It is a matter of record that FIR No.280 dated 22.12.2020 offence under Section 365-B PPC, Police Station Musa Khel, District Mianwali was got registered by Ameer

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Abdullah Khan (father of appellant) against Fateh Khan (deceased) for the abduction of her daughter (appellant) whereafter, Palwasha Nageen (appellant) being wife of Fateh Khan (deceased) had been appearing before the different Courts and stated that she was never abducted by any person, rather had contracted marriage with her own free will and consent with Fateh Khan (deceased) and supported her husband Fateh Khan (deceased) against her parents. Documents in this respect have been produced by the defence i.e Ex.DA to Ex- DC. All this shows that appellant had absolutely no motive to commit murder of her husband Fateh Khan (deceased) with whom she had contracted love marriage and deposed against her parents in different Courts. In these circumstances, the trial Court has rightly discarded this motive against the appellant.

7.In this case, Ameer Abdullah Khan father, Sami Ullah Khan, Kaleem Ullah Khan brothers and Ghafoor Ullah Khan paternal uncle of the appellant with above said motive have also been made accused with the allegation of abetment but they have been acquitted by the trial Court through separate trial by disbelieving the story of the prosecution.

8.Both the eyewitnesses i.e Muhammad Ameer KhanPW-9 and Beram KhanPW-10 (brothers of deceased) have specifically stated in the FIR and in their statements before the trial Court that at the time of occurrence they were present in the courtyard of the house whereas occurrence took place in the residential room of Fateh Khan (deceased), they heard voice of fire shot, went into the room of Fateh Khan (deceased) where appellant was already present, saw her holding rifle 44-bore in her hands, caused injury on left temporal region of Fateh Khan (deceased) with fire shot which made its exit on his right temporal region. If this story is believed, then definitely there would have been two crime empties at the spot i.e first crime

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empty would be of a first fire shot which attracted the witnesses to the place of occurrence i.e residential room of Fateh Khan (deceased), second crime empty should have been present at the spot relating to second fire shot statedly made by the appellant in presence of the eyewitnesses after their entrance in the room. Contrary to this, only one crime empty has been recovered from the place of occurrence i.e residential room of Fateh Khan (deceased), which not only falsifies the story of the eyewitnesses that two fire shots were made, rather creates doubt qua their presence at the time of occurrence at the place of occurrence.

9.Considering the peculiar facts and circumstances of this case, the story of the prosecution is also neither plausible nor believable, rather prosecution while concealing original facts of the case has concocted story only to involve the appellant in the occurrence.

10.The argument of learned counsel for the complainant that the conviction of the appellant can be maintained when her husband was found murdered in his house where appellant was living with him as his wife and she does not satisfactorily explain away the circumstances of the death, has no force because the basic principle of criminal law is that it is the burden of prosecution to prove its case against the accused beyond reasonable doubt. The unnatural death of the appellant’s husband in his house may be a circumstance to be taken into account along with other prosecution evidence. However, this by itself would not be sufficient to establish the appellant’s guilt in absence of any other evidence of the prosecution connecting her to the crime, which is missing in the present case. (2017 SCMR 564) “Arshad Khan Vs. The State”.

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11.Recovery of rifle 44-bore pertaining to Fateh Khan (deceased) on pointing out of the appellant from the open field accessible to everyone is also not believable.

12.In view of the above discussed circumstances, I entertain serious doubt in my mind regarding participation of the appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession but as of right.

13.For the foregoing reasons, instant criminal appeal filed by the appellant (Palwasha Nageen) is accepted, her conviction and sentences awarded by the trial Court vide impugned judgment are hereby set aside. She is acquitted of the charges and directed to be released forthwith if not required in any other case.

(SADAQAT ALI KHAN)

JUDGE

Approved for reporting

JUDGE

Anwaar*