Dildar Vs The State

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Cr. Appeal ltto. 3 I 5-A/2 02 2

TUDGME]YT

[)atc ollrcaring.... .......22.04.2025...

z\ppellant (Dildar) By Mr. Yasir Mustafa Khan Swati, Advocate.

l{cspondcnts. (Statc) I}y \,1r. Shoaib Ali. Assistant Advocalc Gcncral and (Cornplainant) lly Mr. Shad Muhamrnad I(han, Advocatc.

SADIO ALI, J.- Ilanded down to lif'e imprisonmcnt with a fine ol'I1s.5,00,000/- or in default 1o suffer one (01) year simple imprisonrrcnt rvith benefit of Scction 382-B Cr.P.C by the lcarned z\dditional Sessions Judgc- VI, Mansehra irr case FII{ No. 338 datcd lL).05.2020 registercd under Scction 302 PPC at Policc Station Shinkiari l)istrict Mansehra. alIcr having bcen found guilty for comnritting murdcr of lris real brother (Abdul Sattar), thc appellant (Dildar son of Daud Khan) has filed the instant df appeal undor Seotion 410 Cr.P.C against his conviction and sentcncc

2 C)n 19.05.2020 at 19:30 hours complainarlt namcly, Mst. Yasmeen Bibi (PW-07) while reporting the crimo to Sycd l{ehman Sha}r, ASIIO (PW-05) in thc Iimcrgcncy Ward of ltllC

Shinkiari alleged that her husband Abdul Sattar (deceased then alive) and brother-in-law Dildar (appellant) used to quarrel frequently in the house owing to land dispute. On the fateful day at 18:45 hours she and her husband were present in the house r,vhen in the meanwhile appellant had knocked at the door and asked her husband to come out. The complainant alleged that both the appellant and deceased had gone towards link road, situated at the back of her house, thus, she alongwith her son also went after them. According to complainant, the appellant had abusing her husband rvhen in the meanwhile her another brother-in-larn, (Iftikhar) had also arrived at the spot. During oonversation, the appellant had statedly took out his pistol and started firing upon her husband, as a result of which, he sustained J injuries on different parts of his body and died at the spot. 'fhe occurrence was stated to have also been rvitnessed by her son (Hasnain) and her brother-in-law (Iftikhar) besides her. Motive for the crime was dispute over the landecl property.

Iteport of the complainant was reduced into murasila (Irx.PW-5/1), on the basis of which thc abovementioned FIR. (Ex.PA) was registered

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3.After conclusion of investigaticln, challan was submitted before the learned trial court, fbrmal charge was framed against the appellant, to rvhich he pleaded not guilty and clairned trial. In order to prove its case, prosecution produced nine

(09)witnesses, whereafter accused was examined under Section 342 Cr.l>.C, wherein he denied the allegations and profbssed innocence, however, he neither opted to be examined on oath nor produced evidence in his defence. At the conclusion of trial, the l<larned trial Judge convicted and sentenced the appellant vide impugned judgment as mentioned above. Aggrieved from the judgmcnt of learned trial oourt, the appellant has filed the instant appeal.

4.Dissatisfied with the findings delivered d$ by learned trial court vide salre impugned judgrnent, complainant namely, lylst. Yasmeen Bibi, has also filed Cr.Revision No. 08-A/2023 for enhanoement of sentence of the appellant from lif-e imprisonment to normal penalty of death, therefore, in order to avoid repetition of facts and findings, we deem it appropriate to decide both these inatters through this single judgrnent.

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

6.Perusal of' rccord reveals that the appellant stands accused of the heinous offence of committing the nrurder of his real brother, namcly Abdul Sattar. The alleged motive behind the occurrence, as brought on record by the prosecution, appears to be a dispute pertaining to thc ownership and possession of landed property.

'fhe complainant, who happens to be a close rclative of both the appellant and dcceased, has stateci in her first information report that she d witnessed the incident with her own eyes and has reiterated the same story before the learned trial court during the course of her examination-in- chiof. I'[ou,ever, it is a well-scttled principle of law that while exercising powers under appellate jurisdiction, this Court is duty-bound to reappraisc ancl re-evaluate the entire evidence available on the record with utmost care and caution. This duty assumes even greater importauce in the instant case where, on the one hand, a precious human life has been lost, and on the othcr hand, the

flundamental rights to lifc and libcrty of the appellant are at stake. It is, therefore, incurnbent upon this Court to strike a delicate balance bctween the two competing considerations and to ensurc that justice is not only be done but manifestly seen to have been done.

7.First, r,ve would like to debate upon the eyewitrress account furnished by complainant (PW-07). Stre while recording first inlormation report (Bx.PA) purported to have seen the occrlrrence with her own eyes as to how the appellant had called her husband lrom the house and took him towards thc link road and how in presence of her son (l{asnain) and brother-in-law (Iftikhar) appellant had opened firing with his $$ pistol upon her husband, who sustained injuries on different parts of his body and died at the spot.

Surprisingly, rvhile appearing in the witness box as PW-07 the complainant twisted the story by deposing that after receiving injuries by the ileceased then alive he died after half an hour.

Siurilarly, during the course of her cross- examination the complainant (PW-07) deposed that w'hile going from thc placc of clccurrencc to RIIC Shinkiari, Police Station u'as falling on the

way but neither she nor any other relative had gone to Police Station for lodging report. In her report, the complainant stated that after receipt of injuries her husband had died at the spot while during her examination-in-chief she deposed that her husband died after half an hour of receiving injuries, howevcr, when confronted rvith the ibicl discrepancy she admitted to have not disclosed in her initial report about aliveness of her husband for half an hour. T'he contradiction in the statement of star witness raising finger towards his presence at the crimc spot. Besides, during the course of her cross-examination when questioned, she admitted to have in knorvledge that during the life time of her husband, he lodged a report in police station dt' qua dispute over the piece of land, but neither she oould produce copy of said report or investigation to the police nor before the coult in order to substantiate her version. So far as aliveness of the cleccased lbr half an hour at the crime spot is concerncd, suffice it to note that duritg the course of her cross-examination the complainant admitted that hcr brother-in-law (Iftikhar) was having a vehicle with him at the time of comrnission of the of'lbnce, if so then what for they remained at the

crime spot for such a long time i.e. half an hour and did not opt to shift the injured to the hospital within time instead of waiting till last breath of thc deceased at the crime spot, is a question looking askanoc. Furthermore, the cornplainant also admitted that place of occurrence was situaled on link road, which was a public place, however, astonishingly except her and thc two allegcd PWs none else was present at the spot, tnoreso, lvhcn the occurrence was stated to have bcen taken placc in the broad day light. Besides, she herself had negated her ibid stance in the next line of her cross-examination by deposing that many peoplc had gathered at the crime spot after the occurrencc and r,vhcn questioned she admitted as correct that nonc: of thcm could be producod at the trial, thus, dt' possibility of her being a chance witness cannot bc ruled out of consideration. I'his witness furthcr stated to havc shifted the dead bodl' of deceased to hospital in a taxi cab, which was driven by one Abclul Manan. At this juncture, a qucstion would arise that how in presence of'persottal vchicle ol' Il'tikhar PW, the dead body was shifled to hospital in a taxi cab also creal.es reasonable doubt. liurthermore, the cornplainant admittod as correct

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that she had not specified the locales of injuries in her report and even in the court while recording her statement. All the ibid discrepancies and contradictions in the statement of' cornplainant crcates reasonable doubt in the prosecution case rathcr certainty of her bcing not witnessed thc occurrencc cannot be ruled out. lirom the ibid discussed scenario it has become crystal clear that the abovementioned witncss was ohance witnoss and had not actually accompanied the deceased at tht- lime of occumence, therefore, it is well settlcd that if testirrony of the witncsscs of ocular account, who were chance witncss, remaincd unoorroborated, then it is highly unsafe to rcly -['he upon their testimony. llon'ble Supreme Court of Pakistan while delivering its verdict in the casc of ufu{st. Rukh,sana Besum & others Soiiad & df Alllgltreported as 2Al7 SCMR 596 has held as undcr

"A single doubt reasonablY showing that a witness/witnesses' pt'esence on the crime spot was doubtful when a tr,agedy takes place woulcl be sfficient to discard his/their testimony as a whole. This principle may be pre.ssed into service in cases where such witness/witnesses are seriottsly

inimical or appears to be a chance vtitness because judicial mind would remain disturbed about lhe truthfulness of the testimony of strch vt,itnesses provided in a murder case, /s a fundamental principle o/' our criminal justice system. "

8.Apart from the above, the complainant alleged in her initial report rather reiterated in her court statement that the occulrence was also r,vitnessed by her son (Hasltain) and brother-in-law (Iftikhar) but astonishingly the former was abandoned rvhile the latter was woll-over by thc prosecution, thus, presurnption under Article 129

(g)of the Qanun-e-Shahadat Order, 1984 was to be drawn to the effect that had these two witnesses been produced at the trial, thcy would have not supported the prosecution version. Roliance in this dl respect may here be placed on thc judgment delivercd by Hon'ble Supremc Court of Pakistan in ttre case of "Muhamntad Akhtar" & others Vs.

The State & others " reported as 2025 SCMR 45.

9.Now, we would like to discuss the rnedical evidence. According to initial report thc deceased alleged to have received multiple injurics on difl-erent parts of his bocly without specifying that on which parts of his body he had rcceivcd

injuries, however, the doctor while conducting autopsy on the dead body of the deceased had found seven (07) firearm entry wounds with six

(06)conesponding exits; while the Investigating Officer had statedly recovered live (05) empties from the spot. According to site plan position thc distance between the deceased and the appellant was sho'w to have been five (05) feet away from each other, however, a glance over the postmortem report divulges that no charring marks rvere found on none of the injuries, r,vhich aspect of the case creatcs reasonable doubt about commission of the offence. Besides, the medical olficer (Dr. Walecd I(han) r,vhile appearing in thc witness as PW-04 admitted as correct that blackening could be fbund within the range of six (06) feet. Besides, there is also inconsistency between the inquest report dt' (Ex.PW-512) and the postrnortem report (Ex.PW- 4ll) as according to the inquest repoft, duly endorsed by the medical off'rcer, total nine (09) injuries u'ere fbund on tho body of deceased whilc according to postmortem reporl, conducted by Dr.

Waleed Khan, Mcdical Oflicer, thirtccn (13) injuries were lbund on the body of deceased. All the ibid discrepancies when taken in juxtapositicln

rvith the contents of first inlorrnation report creatcs reasonable doubt, benefit of which shall have to be extended to the appellant.

10.According to Invcstigating O1fiocr, llvc

(05)empties of 30-bore pistol were statedly recovcred from the crime spot on 19.05.2020 and the appellant was arrested on 20.05.202f) alongrvith crime weapon i.e. 30-bore pistol, rvhereaftcr both the recovered empties and weapon were sent to FSL for forensic analysis on 21.05.2020. A glance over the FSL report divulges that no doubt report in respect of the recovered crime empties and weapon of offence i.e. 3O-bore pistol was lbrind in positive, holever, intriguing aspect of the matter is that the crirne empties werc sho'lvn to have been recovered from the spot on 19.05.2A20, fbllowed by weapon of offence from CIt' possession of the appellant on 20.05.2020, rvhereafter the I.O drafted application for sending the same to FSI. on 21.05.2A2A, however, interestingly the crime empties and u,eapon were shown to have been receivcd in the IrSt, on 29.07.2020 i.e. after cousiderable dolay of morc than two (02) months. In such cvcntuality a qu.cstion of safe custody of thc oasc property

would also arise that wherc the samc were lying during the intervcning period, lor r,vhich no cxplanation whatsoever could be offcred by thc prosccution. In support, oase lar,v reported as "Muhammad Younus Kh an Vs. The Stste" 1992 SCMR 545, "lehangir Vs. ozer Farid und unother" 2002 SCMR 1986 and "Ghulam Akbur and another Vs. The State" 2008 scMR 1064 can rvell bc referred

It is also well settled that delayed scnding of case property to IrSL rvould dcprecialc the cvidentiary value of such piece of evidcncc and unsafe to be relied upon, therefore, no reliance can be placed on the positive FSL report as the possibility of substitution of the emptics as well as crimc wcapon cannot be ruled out. Dclay of morc than two (02) months in sending thc empties and d,f weapon of off-ence to FSL definitely dcstroyed the c'videntiary value of the recoveries. In such likc situation the Ilon'ble Supreme Court of Pakistan rvhile dclivering its judgrncnt in thc case of "Ali Shcr & others .s. The Stste" rcporterd as 2008 SCMR 7A7 has held: -

"The crime-empties having beert allegedly found al the Place of occurrence and liaving been reluined

.fttr so long the police statiort and having been sent to the F.S.L. along vtith the crime weapons and that also 12 days after the allegecl weapons o/' offence had been allegedly recot,ered destroys and evidentiary value o.f the said piece of evidence. T'hese recoveries, therefore, cannot offer any corrohoration to the ocular testimony. "

i,'urther reliance in this respect may also be placed on the judgment delivered in the case of uMir Ahmud Shuh Vs. Tlte Stale & another" reported as 2013 YLR 982.

1 1. So far as motive for the crime is concerned, suffice it to say that no doubt the complainant while lodging report alleged that motirre for the crime was constitrlted duc to dispute over landed property but the same cannot d tre proved at the trial despite giving her opportunity of producing evcn the copy of report or investigated conducted in the matter, thus, the prr:secution has also miserably failed to establish the rnotivc through confidcnce inspiring evidcncc.

Reliance in this respect may here be placed on the .judgment delivered by l{on'blo Suprcme Court of Pakistan in the case of "fuIr.tharnmael llussan &

arothetvs. fhe State & an -reported as 2424 SCMR 1427 where it was held: - "Motive was e double edged weapon, which could be used either waTt srd 6, either side i.e /b, real or false invcslvement. So, the motive asserted by the prosecution indicated that there w,as an enmity of mtrcler behyeen the parties and the said mothle, heing double edge could be the reason for the false implication of the petitioner."

12.From the above discussed scenario. it has bccome crystal clear that case of the prosecution is full of doubts and while aoquittiirg an accused even a single reasonable doutrt is sufficient R.eliancc in this respect may here be placed on the judgrnents delivered by thc l{on'ble Suprerne Court of Pakistan in the cases reported as 7997 SCNIR 449 and2007 SCMR 1825.

Further reliance in this respcct may also .d tle placed on the judgment deliverecl by Hon'ble Supreme Court of Pakistan in the case of "Nluhommad Akrom Vs. 'I'he State" reporl.ed as 2A09 SCMR 230 where it has been held;

"The nutsltell of the whoie discttssion is that the prosecution c'ose is not Jree from doubt. Il is an axioncatic principle of law that in case of doubl,

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the benefit thereof must accrue in favour of the accused as matter of right and 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 nxany circumstances creating doubts. lf there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused v,ould be entitled to the benefit of doubt not as a matter of grace and concession but as ct matter of right. "

In this respect further guidance may also be taken from the recent judgments delivered by Hon'ble Supreme Court of Pakistan in the cases of t'Koshif Ali alias Kalu Vs. The Stute & unother" reported as 2022 SCMR 1515, "Saehir Ahmod Vs_. Tlte Stote & others" reported as 2A23 SCMR 241 and uMst. Haiira Bibi alios Seema & otherc N Vs. . reported as 2023

SCMR 870.

13.Judge considered from all angles, we feel no hesitation to hold that the prosecution has failed to bring home charge against the appellant beyond any shadow of doubt, thus, the instant appeal is allowed. Conviction and sentence of the

appellant recorded by the learned trial Judge vide impugned judgment dated 06J22022 are set-aside and he is acquitted of the charges, levelled against him. I-Ie be set at liberty fbrthwith, if not required iir any other case.

l.i. So far as Cr.Revisiort No. 08-A/2023 filed b1, complainant (Mst. Yasmeen Bibi) for enhanccment of scnternce o1- the appellant fiom iife irirprisonrnent to nonnal penalty of death is corrr-:orncd. as \1/e have disbclieved thc prosecution r:vitt:ltc<; agairrst the appellant, henoe, the crirninal rcvisicn, having become infructuous, is hereby disriiissed.

'llhese arc detailcd reasons lbr clur shorl order ofeveu date.

Zt'unOiinCetl:

U GE

,,#ou Iiu bla ldr. Ju,sttcc MuluumdC l,'qhacn Wali Ihn'ble ],,1r. Justice Sad@ Ali

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