Haris Vs State etc

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 1006-P/2024 with Murder Reference No. 25-P/ 2024.

Haris VS the State etc

Date of hearing: 19.06.2025.

Appellant by: Barrister Azam Khan Chamkani.

The State by: Mr. Muhammad Riaz Paindakhel, AAG.

Respondents by: Syed Mubashir Shah 2 Advocate.

JUDGMENT

SAHIBZADA ASADULLAH 2 J .- Through this single judgment, we intend to decide the instant criminal appeal along with Criminal Revision No. 10-P/2025, titled Mst. Bakht Zari vs. The State} etc., as both matters arise out of the same judgment dated 31. 10.2024, passed by the learned Additional Sessions Judge-II, Lahor, District Swabi. The impugned judgment was rendered m connection with FIR No. 519, d ated 0 2 .09.2021, registered under Sections 302, 324, and 452 of the Pakistan Penal Code (PPC) at Police Station Yar Hussain, District Swabi. Through the said judgment, the

learn ed t rial court convicted and s en ten ced the a ppellant as under :

a. Under section 302 (b) PPC for committing Qatl-i-amd of deceased Mst. Bakht Zari, to death-penalty (on two counts) as Tazir, and to be hanged by his neck till death, subject to confirmation of this sentence of death by the Honorable Peshawar High Court, Peshawar. He shall also be liable to pay compensation under section S44-A Cr.P. C. to the tune of Rs. 1, 000, 000/- (ten lac) to the legal heirs of the deceased. The same shall be recoverable as arrears of land revenue and in default of payment of such compensation, he shall suffer further Simple Imprisonment for period of six months.

b. Under section 324-PPC for causing injuries to Mst. Sabat Pari and sentenced to undergo for five (OS) years rigorous imprisonment and to pay a fine of Rs. SO,OOO/- {fifty thousand) to the injured and in default of payment of the same fine, he shall further undergo simple imprisonment for three (03) months.

c. Under section 4S2-PPC for making entering i nto the house of the deceased and was sentenced to undergo for fi ve (OS) years rigorous imprisonment and to pay

a fine of Rs. 50,000/- {fifty thousand) to the injured and in default of payment of the same fine, he shall further undergo simple imprisonment for three (03) months.

All the sentences of imprisonment shall run concurrently and benefit of section 382-B Cr.P.C was extended to the appellant."

2.Brief facts leading to the

registration of the instant FIR are that on 02.09 .2021, th e complainant, Mst. Bakht Zari, while under treatment in the casualty ward of Yar Hussain Hospital alon gwith her injured sister, Mst. Sabat Pari, reported to the local Police that she, alongwith h er sisters Mst. Sabat Pari, Mst. Luqmania, and sister-in-law Mst. Shireena (wife of Noor-ul- Basar), was present at home when someone knocked at the main gate. Upon opening the gate, she found her nephew, Haris, son of Mukhtiar, holding an axe; that Haris forcibly entered the house, demanded his sh are therein, and upon refusal, attacked the complainant and Mst. Sabat Pari with the axe, intending to kill them. Both sustained injuries during the assault. The motive

behind the occurrence was stated to be a family dispute over the ownership of the house. It is pertinent to mention that on 12.09.2021, the complainant succumbed to her injuries, whereupon Section 302 PPC was added to the case.

3.Upon completion of the

investigation, a complete challan was submitted before the Court. Compliance with the provisions of Section 265-C Cr.P.C. was ensured, and the appellant was formally charge-sheeted. He pleaded not guilty and claimed trial. To prove its case, the prosecution examined a total of nine (09) witnesses. Upon closure of the prosecution evidence, the statement of the accused was recorded under Section 342 Cr.P.C., wherein he denied the allegations and claimed innocence. However, he neither opted to be examined on oath under Section 340(2) Cr.P.C. nor chose to produce any evidence in his defence. The learned trial Court, after conducting a full-fledged trial, convicted and sentenced the appellant as detailed in the earlier part of this judgment. Hence, the present appeal.

The incident occurred on the

morning of 02 .09.2021, when both the deceased and the injured sustained grievous injuries. They were immediately shifted to the hospital, where the injured, Mst. Bakht Zari, reported the incident, which was corroborated by an eyewitness. Injury sheets were prepared, and both injured individuals were medically examined, followed b y the

I

issuance of their medico-legal certificates.

The injured remained under treatment, but on 12.09.2021 , Mst. Bakht Zari succumbed to her injuries, whereupon Section 302 PPC was added to the case. Upon receiving a copy of the FIR, the Investigating Officer visited the scene of the occurrence and, on the pointation of an eyewitness, prepared the site plan. During spot inspection, blood was recovered from the place of the deceased, and an axe lying on the ground was also taken into possess10n. The accused initially absconded but was later arrested and produced before the Court of competent jurisdiction, where he was remanded to police custody. During investigation, he led the police to the crime scene and pointed out

vanous locations relevant to the incident.

Subsequently, the appellant was committed to stand trial and, upon conclusion of the proceedings, was convicted and sentenced through the impugned judgment.

5.The learned trial Court found the appellant responsible for causing the death of the deceased and for inflicting injuries upon the injured eyewitness. Consequently, the normal penalty of death was awarded to him.

This Court is now required to examine whether the learned trial Court was justified in reaching such a conclusion and whether the evidence on record was duly considered before holding the appellant liable for the tragic occurrence . It is a settled principle of law that upon proof of an offence under Section 302 PPC, the normal punishment is the death penalty. However, where a conviction is recorded and the Court refrains from awarding the maximum sentence, it must provide cogent reasons for such leniency. Conversely, the imposition of the death penalty must also be well-founded, based on a fair appreciation of the evidence and surrounding circumstances. Since the

appellant has been convicted and sentenced to death, it becomes imperative for this Court to assess whether the learned trial Court properly appreciated the evidence available on record and whether the facts and circumstances warranted the imposition of the extreme penalty. While it is true that only a single accused has been charged and substitution in such cases is indeed rare, but it 1s equally well-established that the presence of a sole accused does not relieve the prosecution of its burden to prove the case beyond a reasonable doubt. Nor does it permit the Court to treat the death penalty as a default sentence without rigorous scrutiny.

In the interest of justice, and 1n order to avoid any miscarriage thereof, we deem it appropriate to re-evaluate the evidence and reassess the testimonies of the witnesses on record.

6.The points for determination

before this Court are as to whether the incident occurred in the mode, manner, and at the time as alleged by the prosecution;

whether the deceased, while still alive and injured, was in a fit state to make a report

and whether she was indeed the one who reported the matter to the police; whether the injured eyewitness sustained injuries during the same transaction and was a natural and credible witness to the occurrence; whether the medical evidence is consistent with and supports the prosecution's version of events and that whether the prosecution has succeeded in proving its case against the appellant beyond reasonable doubt.

7.The occurrence in question took place within the premises of the deceased's house, and the accused is no other than her nephew. It is, therefore, crucial for this Court to determine what may have prompted the accused to commit the act and for what motive. In order to appreciate the peculiar circumstances of this case, it is necessary to first examine the inter se relationship between the parties. The record reveals that the complainant and the injured eyewitness, Mst. Sabat Pari, were real sisters; Mst.

Shireena Bibi was their sister-in-law; and the appellant, Haris, is their nephew, being the son of Mukhtiar, the deceased's brother. This Court must evaluate what led the appellant

to enter the house of the deceased and what transpired thereafter. Notably, following the injuries sustained in the attack, both injured women were promptly shifted to the hospital, where the complainant, despite her condition, reported the matter, later verified by the eyewitness. To ascertain whether the incident occurred In the stated mode, manner, and at the alleged time, it is essential to examine the testimony of the witnesses. The injured eyewitness, Mst.

Sabat Pari (PW-05), testified that the incident occurred around 5:00 AM after t hey had offered morning prayers and begun household chores. At that time, someone knocked at the door, which was answered by the complainant, Mst. Bakht Zari. Upon opening the door, the appellant forcibly entered the house wielding an axe, demanded his share in the property, and then launched an attack, injuring both the complainant and the eyewitness. They were immediately taken to the hospital, where the FIR was lodged .

The prosecution produced two eyewitnesses, Mst. Luqmania (PW-04) and the injured eyewitness. Mst. Luqmania corroborated the

testimony of PW-05 and described the circumstances of the occurrence in detail.

Both witnesses were cross-examined at length on all material aspects, yet the defence failed to elicit anything favorable or to undermine their credibility. There 1s no dispute that the deceased, the injured eyewitness, and Mst. Luqmania resided in the same household. All three were unmarried, elderly, and illiterate women. The incident took place in the early morning, thus their presence at home is both natural and established. Although the witnesses were subjected to rigorous cross-examination, the defence failed to point out any material contradiction in their statements. No specific contradiction has been identified that would warrant departure from the findings of the learned trial Court. The nature and location of lnJunes sustained by the injured eyewitness clearly establish her presence at the scene and link her directly to the incident. A careful reading of the witnesses' statements reveals consistency 1n their accounts, particularly regarding the time and manner of the occurrence and the prompt

lodging of the report. No substantial or damaging questions were raised during cross-examination that could undermine the prosecution's case. While it is true that the witnesses are closely related to the deceased, it is equally true that they share the same degree of relationship with the appellant. On one hand, the deceased was their sister; on the other, the appellant is their real nephew.

Hence, the possibility of false implication merely on account of relationship appears highly unlikely. The injured eyewitness sustained injuries on vital parts of her body, confirming her presence and involvement in the same transaction. While injuries alone do not render a witness truthful, in this case, the surrounding circumstances, social status, and the character of the witnesses, being parda-nasheen, elderly, and illiterate, enhance their credibility. The defence failed to show any motive for false implication or to demonstrate any malice on the part of the witnesses. The Investigating Officer also could not bring on record any evidence to suggest that the incident did not occur in the stated manner, or that the d eceased was

killed by someone else. No motive, external involvement, or contrary narrative has been established. In view of the foregoing, this Court finds no reason to doubt the credibility of the eyewitnesses. The presence of injuries on the body of the injured eyewitness further reinforces her testimony and lends support to the prosecution's case. Despite the searching cross-examination, the defence failed to discredit the witnesses or to extract anything from the record that could create reasonable doubt, as is held by the apex Court in case titled "Khadeia Siddique and another Vs.

Shah Hussain and another (PLD 2019 SC 261), which reads as follows:-

"The ocular account of the said occurrence had been furnished before the trial court by three eye- witnesses namely Riaz Ahmed complainant (PWS), Khadija Siddiqui (PW6) and Sofia Siddiqui (PW7) out of whom the last two witnesses had the stamp of injuries on their bodies vouchsafing their presence at the scene of the crime at the relevant time. The said eye-witnesses had consistently pointed their accusing fingers towards respondent No. 1 as the sole perpetrator of the alleged offences and ostensibly they had no earthly reason to falsely implicate respondent No. 1 in a case of this

• nature or to substitute him for the actual culprit."

8.In addition to the eyewitness account, the prosecution's case 1s also founded upon the dying declaration of the deceased, who, while still injured, reported the matter herself. There is no dispute that the deceased, then injured, was examined by the doctor, her medico-legal certificate was duly prepared, and she remained hospitalized I until her death on 12.09.2021. This Court must determine whether the deceased was in a fit condition to speak and whether she in fact reported the occurrence. The scribe who recorded the report was examined as PW-06.

He confirmed the arrival of the injured at the hospital and stated unequivocally that he obtained the report from her while she was conscious, oriented, and capable of giving a statement. His testimony remained unshaken under cross-examination, and nothing adverse to the prosecution's case could be extracted. He further confrrmed that the report was recorded in the presence of the attending doctor, who did not deny this fact.

It is pertinent to note that while medical

expertise in the area may be limited, such factors alone should not negate the reliability of the report. Courts must evaluate the broader context In which an injured individual is received and examined, and whether a statement was obtained promptly.

In the present case, the deceased was brought to the hospital within a short time of the incident, further supporting the inference that she was in a state to speak and understand her circumstances. Although the deceased suffered injuries on vital parts of her body, the record and testimonies of the witnesses affirm that she remained conscious and oriented In time and space. No substantial challenge was raised during cross-examination to dispute her ability to give a statement. The consistency between the statements of the scribe and the doctor lends credibility to the dying declaration, and this Court finds no justification to exclude it from consideration. In addition to the dying declaration, the prosecution presented two eyewitnesses namely, the injured eyewitness and Mst. Luqmania, both of whom r esided in the same household. Their presence at the

time of occurrence is undisputed. The close familial relationship among the deceased, the eyewitnesses, and the appellant further minimizes the possibility of substitution. It is implausible that the deceased would falsely implicate her own nephew while shielding the real perpetrator. The record is devoid of any evidence suggesting malice, enmity, or motive for false implication on the part of the deceased or the eyewitnesses. The deceased remained hospitalized from 02.09.2021 until her death on 12.09.2021, which supports the conclusion that she had sufficient opportunity and capacity to report the incident. The eyewitnesses, particularly the injured eyewitness, corroborated the deceased's version of events and verified her statement. While it is true that a dying declaration is generally considered a weaker form of evidence and must be corroborated by independent testimony, this requirement stands fulfilled in the present case. The Court must assess whether the declarant was in a fit state of mind and whether the declaration was duly recorded. In light of the m edical and eyewitness evidence, this Court finds that the

deceased was indeed conscious and oriented at the time her statement was recorded. The defence failed to discredit either the scribe or the doctor, and no questions were put to challenge the medical condition of the deceased at the relevant time . Nothing has been brought on record to suggest that she was unconscious or incapable of speaking.

Accordingly, this Court 1s confident in holding that the d ying declaration was voluntarily made by the deceased while in a fit mental state, and that it was recorded properly in the presence of a medical professional. The dying declaration stands fully supported by the consistent and credible testimony of the prosecution witnesses.

Despite thorough cross-examination, their statements could not be shaken. Therefore, this Court finds the dying declaration to be duly proved and in harmony with the medical and ocular evidence. It was rightly relied upon by the learned trial Court in convicting the appellant. Reliance is placed on judgment of Apex Court reported as 2024 S C M R 1421 titled "Muhammad Saeed and

another Vs. The State and another" wh erein, it h a s b een h eld as under:

" 13. On reappraisal of the evidence available on record and after considering the circumstances of the instant case, we have no reason to discard/disbelieve the dying declaration of deceased Nagina Bibi which is supported by the confidence inspiring testimony of PW-8, PW-10 and PW-13 and is also corroborated by the inquest report, MLC, postmortem report and report of the chemical expert."

9.The m edical evidence lends

subst antial support to t h e prosecu tion 's case .

At the time of the inciden t's reporting, t h e appellant was described as wielding an axe, an assertion that align s seamlessly with t he m edical fin dings, which con firm that the inju ries sustained by both the deceased and the injured eyewit n ess were inflicted by a sharp -edged weapon. Th e subsequent recovery of the said axe from the cou r tyard of the very h ou se where th e t r agedy unfolded furth er reinfor ces th e prosecution's n arrative.

This convergence of medical evidence with th e ocular accoun t fortifies the credibility of the prosecution's version . Moreover, when the medical findings stand m perfect

consonance with the testimony of eyewitnesses who remained unwavermg on all material particulars, no uncertainty remruns as to the involvement of the appellant. The cohesion between these pieces of evidence has deepened the legal and moral culpability of the appellant, conclusively strengthening the prosecution's case and casting an indelible shadow over the defence.

In similar circumstances, we derive wisdom from the judgment of the apex Court reported as "Aqil Versus The State", (2023 SCMR 831), which reads as follows: - "The medical evidence available on the record further corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and injured is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused."

10.The motive, as attributed by the prosecution, revolved around a familial dispute concerning the appellant's alleged demand for a share in the residential

property. Though no documentary proof was adduced in support thereof, the defence remained unable to effectively controvert the claim, particularly in view of the admitted relationship between the parties, as the deceased and the eyewitnesses were the paternal aunts of the appellant and real c sisters of his father. These women, being parda-nasheen and long-time residents of the house in question, had no known history of discord or enmity within the locality that could suggest a motive for falsely implicating the appellant. In a case where a real aunt, grievously injured, unequivocally accuses her own nephew, and where other eyewitnesses, being close blood relatives, corroborate the sequence of events without deviation, the presumption of truth gains considerable strength. It is implausible that such close kin would fabricate a false narrative to substitute the appellant for another assailant.

Furthermore, in the peculiar facts of the present case, any purported weakness or absence of motive pales in significance, especially when the prosecution has succeeded 1n marshaling credible,

independent, and consistent eyewitness testimony. The familial relationship itself serves to illuminate the appellant's vested interest in the property and confirms his connection to the crime. Thus, the absence of documentary motive cannot be construed as a basis for acquittal, where the prosecution's case otherwise stands reinforced by unimpeached and coherent evidence.

11.This Court is also seized of Murder Reference No. 25-P /2024, forwarded by the learned trial Court under Section 374 of the Code of Criminal Procedure, 1898, for confrrmation of the sentence awarded to the appellant. In undertaking this solemn task, it becomes our bounden duty to examine whether the trial Court was justified in awarding the ultimate punishment and whether the circumstances of the case genuinely demanded the imposition of such an extreme measure. Undoubtedly, the parties are bound by close blood ties, and it is equally undisputed that the appellant is a young man of merely 24 years. But the question remains that can the veil of kinship or the cloak of youth shield one from the

consequences of a cnme so monstrous in nature. In our considered view, neither the sanctity of blood relations nor the tender age of the appellant can serve as a sanctuary from justice. To extend leniency on these grounds alone would amount to a betrayal of the victims, a mockery of the law, and a miscarriage of justice that this Court cannot, and must not, permit. Justice, after all, must not only be done but must also be seen to be done, not selectively, not sentimentally, but in accordance with the gravity of the act committed. A perusal of the record unveils a scene marked by horror and helplessn ess.

The victims, elderly, parda-nasheen ladies, frail in stature but dignified in their quiet domesticity, stood no chance against the fury of the appellant. Armed with an axe, he did not m erely visit their home; he invaded their sanctuary. The choice of weapon, the distance travelled, and the sheer ferocity of the assault together paint a grim picture of premeditation and unrelenting cruelty. The appellant struck without remorse, without restraint, targeting the most vital parts of their bodies, leaving one dead and another

grievously wounded. The third sister, by providence alone, escaped the same fate. This was not a crime born of sudden rage or mistaken identity, but it was a deliberate, calculated, and cold-blooded attempt to eliminate those who stood in the way of his claim over a piece of property. A claim that, had it been legitimate, could have been peacefully resolved before a court of law.

Instead, he chose the path of bloodshed over the rule of law. The home, which shoul<;l have been a haven of familial love, became a theatre of unimaginable violence. It is in this chilling context that we find ourselves unable to take a lenient view. The brutal nature of the offence, the vulnerability of the victims, and the betrayal of familial bonds collectively mark the appellant as one whose actions are not merely criminal but morally abhorrent.

He showed no mercy to those who had once held him as a child, no restraint even in the face of their pleas. Accordingly, this Court finds no infirmity in the conclusion reached by the learned trial Court. The judgment reflects a sound appreciation of the evidence, a just application of the law, and a deep

understanding of the anguish inflicted upon the victims. The like circumstances were taken into consideration by the Supreme Court of India 1n its judgment titled "Dhananjoy Chatterjee v. State of West Bengal" (1994) 2 SCC 220), wherein it was held that ''When the crime is committed with extreme depravity and the brutality is such that it shocks the collective conscience of the society, then the death sentence is the only appropriate punishment", which confirms the Supreme Court's commitment to upholding the "rarest of the rare" doctrine in death penalty cases. The instant criminal appeal, being devoid of merit, stands dismissed.

However, this Court deems it appropriate to clarify that the learned trial Court fell in to error by awarding the death sentence to the appellant on two counts, as only one person lost her life in the instant case, and for the murder of a single deceased, the death sentence cannot be awarded on more than one count, therefore, to that extent, interference is warranted. Accordingly, the findings of the learned trial Court are modified to this extent, and the appellant is

convicted and sentenced to the penalty of death. As for Murder Reference No. 25- P /2024, this Court answers it 1n the affirmative and confirms the awarded sentence.

12.Now adverting to the connected Criminal Revision No. 10-P/2025, which has been filed seeking enhancement of the sentence, it may suffice to observe that the appellant has already been awarded the maximum statutory punishment, i.e., the sentence of death, by the learned trial Court, and the same stands confrrmed by this Court. In such circumstances, no case for further enhancement of the sentence is made out. Consequently, the instant Criminal Revision is hereby dismissed.

Announced

Naqqash Haider

JUDGE

JUDGE

yl Division Bench.

Hon'ble Mr. Justice Sahibzada AsaduUah , J. Hon'ble Mr. J u stice Abdul Fayaz, J .