Zardad Vs The State

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Cr. Appeal No. 3 66-A/202 3

JUDGMEIYT

Date of hearing. .. ....11.03.2025...

Appellants (Zardad & another) By Mr. Mazhar Khan Jadoon, Advocate.

Respondents. (State) By Arbab Ifrahim, Additional Advocate Gencral and (Complainant) By Malik Haider AIi Awan, Advocate. ******************>k

SADIO ALI, J.- This criminal appeal has been filed against the judgment dated 23)2.2023 delivered by learncd Additional Sessions Judge Abbottabad at Ifavelian in case FIR No. 536 dated 28.05.2021 registered under Sections 302 I 324 I 34 PPC read with Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Havelian District Abbottabad, whereby the appellants namely, (l) Zardad alias Layya son of Khan Bahadar and (2) Sheraz son of Taj Muhammad, have been convicted and sentenced as below: -

0l/ "Under Section 302 (b) PPC to life term imprisonment with a .fin, of Rs.5,00,000/- or in default to suffer further six (06) months S.I each.

Under Section 324 PPC to ten (10) years imprisonment with a fine of

Rs.5,00,000/- or in default to suffir six

(06)months S.l each.

Under Section 15 of the Khyber Pakhtunkhwo Arms Act, 2013 to two

(02)years simple imprisonment each.

All the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C."

2.According to prosecution story, as elucidated in FIR (Ex.PA), on 28.05.2021 at 1 1 :40 hours complainant namely, Shah Nawaz (PW-05) while reporting the crime to Saeed Shah Incharge Reporting Cell (PW-19) in the Emergency Ward of TDH Havelian alleged that on the fateful day at 08:30 hours he alongwith his brother Hashirn (deceased then alive) had left the house fbr Abbottabad to deliver milk (as routine) on their motorbike (driven by the deceased then alive c Hashim) and when they reached at the crime spot (Narian Batangi) they noticed the appellants while standing on the road duly armed. As per crime report, appellant (Zardad alias Layya) had statedly stopped their bike and given pistol butt blow on the nose of his deceased brother Hashim whereas appellant (Sheraz) had opened firing with his pistol upon his brother Hashim, as a result of

which, hc (Hashim) sustained injuries on his chest, stomach and thigh. The complainant alleged to have taken shelter in the nearby bushes, however, meanwhile his brother namely, Nazakat Ali (PW-

07)also reached at the crime spot, thus, thc appellants by making aerial firing had statedly fled away from the scene towards the nearby hill. The complainant further alleged in the report that his brother, after sustaining l'rrearm injuries, had dicd at the spot. The occuffence was stated to have also been witnessed by his brother Nazakat Ali (PW- 07), besides him. Motive for the crime was that the appellants were doubting that his deceased brother (I-Iashim) had disclosed to Gulfam about theft of his cow by them (appellants). Report of the complainant was reduced into murasila (Ex.PW- l9ll), on the basis of which the abovementioned d/ FIR (Ex.PA) was registered by ASI Muhammad Zubair Khan (PW-12) in the Police Station

3.Upon conclusion of investigation, challan was submitted before the learned trial court. Formal charge was framed against the appellants, to which they pleaded not guilty and claimed trial. In ordcr to prove its case, prosecution produced nineteen

(19)witnesses, whereafter accused were examined under Section 342 CrP.C, wherein they denied the

allegations and professed innocence, however, they neither opted to be examined on oath nor produced evidence in their defence. At the conclusion of trial, learned trial Judge convicted and sentenced the appellants vide impugncd judgment as mentioned above. Aggrieved frorn judgment of learned trial court, the appellants have filed the instant appeal.

4.Felt aggrieved from the same judgment, complainant namely, Shah Nawaz has also filcd Cr.Revision No. 0l-A/2024 for enhancement of sentences of the appellants from life imprisonment to normal penalty of death, therefore, in order to avoid repetition of facts and findings, we deem it appropriate to decide both these matters through this single judgment.

5.We have heard arguments of learned c counsel for the parties as well as learned Additional Advocate General and gone through the record with their valuable assistance.

6.Though the learned trial court passed a guilty verdict, yet this being the appellate court is under the bounden duty to assess and re-assess the available evidence on the f,rle and to appreoiate as to whether the learned trial court was correct in its approach by convicting thc appellants. In order to

ascertain as to whether the impugned judgment is based on proper reasoning and that the learned trial court correctly applied its judicial mind to the facts and circumstances of the case keeping in view the evidence available on the file, so we deem it essential to thrash out the evidence so as to avoid miscarriage ofjustice.

7 Perusal of the case record reveals that prosecution has been relying upon ocular account furnished by complainant Shah Nawaz (PW-05) and his brother Nazakat Ali (PW-07), medical evidence, recovery of crime empties from the spot as well as motive for commission of the offence.

bcsides recovery of crime pistols from thc appellants. We would like to dilate upon the ocular account firrnished by complainant (PW-05) and his brother (PW-07). The complainant while appearing in the witness box as PW-05 has no o^/ doubt disclosed almost the same story as described in his initial report, however, in respect of place of lodging report, he stated that police had reached the place of occurrence within one and ahalf (lYz) hours and then he lodged the report at the crime spot; whereas the FIR depicted otherwise by narrating therein that report was lodged in the Emergency Ward of TDII Havelian. The ibid

discrepancy in the statement of star witness of the crime creates dent in prosecution because how one could believe that out of the two versions, which one was correct. This witness during the course of his cross-examination in the very first line stated that the matter of theft of cow was two (02) days prior to the occurrence; whereas the mentioning of commission of theft of cow, two (02) days prior to the occurrence, could not be mentioned in the FIR while narrating motive for commission of the offence. The witness also admitted lodging of FIR No. 327 dated 28.05.2021 under Section 380 qua theft of cow, however, intriguing aspect of the matter is that complainant therein was one Mubashir Iqbal and not Gulfam, about whom the complainant narrated motive for the crime, moreso, when questioned no record of the cow thefl was found available on record. The 0l complainant during the course of his cross- examination had failed to point out the bushes where he was hiding after commission of the offence. It is also important to be noted that as per contents of FIR the complainant alleged to have been delivering milk, however, when asked about the pots / bottles of the milk, his reply was; "I do not know about the pots / bottles of the milk which

was present with us, after the occurrence I do not know about these articles". Therefore, the mode and manner as well as sequence of events did not appeal to reason. This witness also stated that police reached at the crime spot at 10:30 am soon after the occuffence, however, astonishingly report was shown to have been lodged at 11:40 hours in the hospital, which creates doubt about presence of this witness at the crime spot. During his cross- examination the complainant admitted that many people of the locality were present at the crime spot but no independent person could be made as a witness in the case. Also admitted that when his brother Nazakat Ali (PW-07) reached at the crime spot, the appellants decamped towards the hill and they did not fire upon his brother (Nazakat Ali).

Leaving aside the ibid discussed discrepancies in thc prosecution case, another most significant d/ aspect of the matter is that the story narrated in the FIR is not appealing to a prudent mind as how it is possible that two (02) brothers, coming on rnotorbike, stopped by the appellants, and after cornmitting murder of the dcceased (who was driving the bike) his another brother, seated on rear seat, i.e. the complainant had taken shelter in thc nearby bushes. Besides, the narration of

complainant mentioned in the FIR that soon aflcr committing murder of his brother (Hashim), his another brother i.e. Nazakat Ali (PW-07) also arrived at the crime spot and the appellants, duly armed with firearm, decamped from the scene by not even causing any harm to either complainant or his brother i.e. PW-07. Besides, how it is possible that the appellants had allegedly committed murder of brother of I'}Ws but both the PWs had not even taken a little pain to overt aot.

8.Similarly, the other eyewitness namely, Nazakat Ali, while appearing in the witness box as PW-07 had also narrated almost the same facts as disclosed by the complainant in his report. During the course of his cross-examination while trying to prove his presence at the crime spot he stated to have left the house for Abbottabad after three or four minutes of leaving the complainant and 0/ deceased. When questioned about involvement of the appellants in another case wherein his deceased brother (Hashim) was injured, this witness admitted as correct that both the appellants were absconding in the referred case prior to cornmission of the offence. It is strange to note that the ibid factum of involving the appellants in an earlier commission of offence had been kept

secret by the complainant for the reason best known to him and instead he disclosed altogether a different motive. While answering to a question, put by thc defence, this witness deposed that the police had started initial investigation from him and the complainant, besides other people present at the spot, and then lodged the report. Meaning thereby that other people were also present at the crime spot but in the report the complainant had stated nothing in this respcct that either the commission of offence had been seen by anyone else except them.

g. Otherwise too, the story narrated in the FIR if taken in juxtaposition with the evidence, furnished by both the alleged eyewitnesses, create reasonable doubt because it was hard to believe that life of the brother of eyewitnesses was in danger but they did not react immediately. Had the d/ complainant and eyewitness Nazakat Ali been present at the time and place of occurrence, the appellants could have been chased even if not apprehended.

10.From the ibid discussed scenario it has become clearer than crystal that both thc abovementioned witnesses were chance witnesses and had not actually accorrpanied the deceased at

the time of occurrence, therefore, it is well settled that if testimony of the witnesses of ocular account, who were chance witnesses, remained uncorroborated, then it is highly unsafe to rely upon their testimony. The Hon'ble Supreme Court of Pakistan while delivering its verdict in the case of "Mst. Besum & others Saiiod &

others" reported as 2017 SCMR 596 has held as under: -

"A single doubt reasonablY showing that a witness/witnesses' presence on the crime sPot was doubtful when a tragedy takes place would be sfficient to discard his/their testimony as a whole. This principle may be pressed into service in cases where such witness/witnesses are seriouslY inimical or aPPears to be a chance witness because judicial mind would remain disturbed about the truthfulness M of the testimonY of such witnesses provided in a mw"der case, /s a fundamental principle of our criminal jr.tstice sYstem, "

I 1. In this case occurrence had allegedly been taken place at 08:30 hours while report thereof was lodged at 11:40 hours i'e' with a dclay of more than three (03) hours while distance between the place of occurrence and police station

l1

rvas hardly l7ll8 kilometers, as per FIR, which could easily be covered within 20 I 25 minutes.

Nowhere in the entire evidence, the prosecution had explained the reason for the delay in reporting the matter to the police, thus, delayed registration of FIR shows dishonesly on the part of complainant rather the result of deliberation and consultation. In this respect for advantageous purpose reliance may here by placed on the judgments delivered by Ilon'ble Supreme Court of Pakistan in the case of "Amir W

Vs. The Stute" reported as 2023 SCMR 566 and in the case of "Muhammad Hossan & another Vs. State & an CF,, reportcd as 2024

SCMR 1427.

12.So far as recovery of crime etnpties at the spot coupled with recovery of crime weapons i.e. 3O-bore pistols from possession of the .d appellants are concerned, suffice it to say that no doubt as pcr recovery memo (Ex'PW-11/1) nine

(09)empties of 3O-bore pistol have statedly been recovered from the places where the appellants were found present at the time of commission of the offence and thereafter allegedly fiom their personal possession at the timc of thoir arrest thc police had statedly recovered 30-bore pistol from

each appellant and when these empties and weapons were sent to FSL, report thereof was received in affirmative, however, intriguing aspect of the matter is that the crime empties were allegedly recovered from the spot on 28.05.2021 and the weapon of offence was recovered from appellant Zardad on the same day 1.e. on 28.05.2021 and sent to FSL on 02.06.2021 i.e.

with a delay of five (05) days while from appellant Sheraz Ahmad the crime weapon was recovered on 10.06.2021 and sent to FSL on 14.06.2021 i.e with delay of four (04) days respectively. In such eventuality a question of safe custody of the case property would also arise that where the same were lying during the intervening period. It appears from the report of FSL that parcels have been received in the laboratory on 02.06.2021 and od 14.06.2021 with a delay of five (05) days and four

(04)days respectively, for which no explanation whatsoever is forthcoming on record. In support, case law reoorted as "Muhommad Younus Khan Vs. Tlte State" 1992 SCMR 545, "lehansir Vs.

Nazer Farid d unother" 2002 SCMR 1986 and "Ghulam Akbar and other Vs. The Stute" 2008 SCMR 1064 can well be referred

l3

It is also well settled that delayed sending of case property to FSL would depreciate the evidentiary value of such piece of evidence and unsafe to be relied upon, therefore, no reliance can be placed on the positive FSL report as the possibility of substitution of the empties as well as crime weapon cannot be ruled out. Delay of five

(05)days in sending the empties and weapon of offence to FSL definitely destroyed the evidentiary value of the recoveries. In such like situation the Hon'ble Supreme Court of Pakistan while delivering its judgment in the case of "Ali Sher & others Vs. The State" reported as 2008 SCMR 707 has held: -

"The crime-empties having been allegedly found at the place of occurrence and having been retained od for so long the police station and having been sent to the F.S.L. along with the crime weapons ond that also l2 days after the alleged weapons of offince had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony. "

Further reliance in this respect may also be placed on the judgment delivered in the case of uMir Ahmad Shah Vs. The State & another" reported as 2013 YLR 982.

13.Although the prosecution has tried to prove the motive by even relying on registration of FIR No. 327 dated 28.05.2021 registered under Section 380, which was stated to have been registered against the appellants for stealing cow of one Gulfam, which culminated into commission of the offence, however, the so-called eyewitness namely, Nazakat Ali (PW-07) while referring to registration of another FIR for injuring the deceased by the appellants, prior to the present incident, has crumbled down the motive set up by prosecution as there appears two versions of the inoident either naming the appellants in the cow dJl theft case or earlier inuring the deceased by the appellants, thus, in such a scenario we feel no hesitation to hold that the prosccution has miserably failed to prove thc motive through cogent and confidence inspiring evidence. Iteliance in this respect may here be placed on the judgrnent delivered by Hon'ble Supreme Court of Pakistan in the case of "Muhammud Hassun &

onother Vs. The e & another" AS

2024 SCMR 1427 where it was held: - "Motive was a double edged weapon, which could be used either way and by either side i.e for real or false involvement. So, the motive asserted by the prosecution indicated that there was an enmity of murder between the parties and the said motive, being double edge could be the reason for the false implication of the petitioner."

14.So far as medical evidence is concerned, the complainant alleged that soon after stoppage of motorbike by his deceased brother (IJashim), one of the appellants namely, Zardad, had given him butt blow on his nose, however, no such injury could be found by the doctor while conducting autopsy, except firearm injury which was shown to have been entered on the upper part of nasal o^/ bone with coresponding exit from the upper right side of scalp with dried blood from nose and right ear. Besides, as per site plan position distance between the places of deceased and that 01' assailants had been shown to be 2 & 5 feet respectively, however, the medical officer while oonducting autopsy had not shown any charring marks on the injuries sustained by the deceased,

which is otherwise not appealable to a prudent mind as if in reality the deceased would have received the injuries at the hands of appellants from such a close range, then there must have been charring marks, which are not available on the person ofdeceased.

15.From the above discusscd evidence, it has become clearer than crystal that case of the prosecution is full of doubts and while acquitting an accused even a single reasonable doubt is sufficient. Reliance in this respect may be placed on the judgments delivered by the lfon'ble Supreme Court of Pakistan in the cases reported as 1997 SCMR 449 and2007 SCMR 1825.

Further reliance in this respect may also be placed on the judgment delivered by I{on'ble Supreme Court of Pakistan in the case of o^/ "Muhammsd Akrsm Vs. The Stote" reported as 2009 SCMR 230 where it has been held;

"The nutshell of the whole discussion is that the prosecution case is not free fro* doubt. It ls an axiomatic principle of law thal in case of doubt, the benefit thereof must accrlte in favour of the accrtsed as matter of right anrl not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345

that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a rnatter of grace and concession bul as a matter of right. "

16.In view of what has been discussed above, it has been established that thc prosecution has miserably failed to prove its oase against the appellants beyond any shadow of cloubt, therefore, the learned trial has not attended to rnaterial glaring contradictions in the statements of prosecution, thus, while ertending the beneJit of doubt to them we feel no hesitation to hold that the prosecution has failed to prove its case against them. Resultantly, we, while allowing the instant o^/ appeal set aside their convictions and sentences recorded by learned trial court and acquit them of the charges levelled against them. They be set at liberty forthwith, if not required in any other case.

17.So far as Cr.Revision No. 20-A/2022 fied by complainant (Muhammad Nawaz) for enhancemcnt of sentence of the appellants from life imprisonment to normal penalty of death is

concerned, as we have disbelieved the prosecution evidence against the appellants, hence, the criminal revision, having becomc infructuous, is hereby dismissed.

These are detailed reasons for our short order of cven clate.

Announced: ,

tt.03.2025.

v{r

tu#n IIon'hla Mr. Jttslice itluirummatl l:aheam lt/oli Iton'hlc l'lr' Justicc Socliq Ali

/rStif. SC,l*/