Muhamamd Faheem Vs The state etc.

JUDGMENT SHEET

PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

Cr.A.No.48-D/2024.

Muhammad Faheem Vs.

The State etc.

JUDGMENT

For Appellant: M/S Ghulam Hur Khan Baloch, Muhammad Yousaf Khan and Saif-ur- Rehman Khan, Advocates.

For State: Mr. Ghulam Muhammad Sappal, Addl:

A.G.

For Respondent: Muhammad Waheed Anjum, Advocate.

Date of hearing: 24.6.2025.

FARAH JAMSHED, J.- This appeal has been filed against the judgment dated 23.5.2024, passed by learned Additional Sessions Judge-II, D.I.Khan, in case F.I.R No.278 dated 26.11.2022, under Sections 302/324 PPC of Police Station Parova, District D.I.Khan, whereby the appellant Muhammad Faheem son of Kaloo Khan, was convicted under Section 302(b) PPC for committing qatl-i-amd of Abdul Qadeer and sentenced to life imprisonment and to pay compensation of Rs.20,00,000/- to the legal heirs of deceased in terms of Section 544-A, Cr.P.C, or in default thereof to suffer six months simple imprisonment. He was further convicted under Section 324 PPC for attempting at the life of PW Muhammad Abid and sentenced to two years rigorous

imprisonment along with fine of Rs.50,000/- or in default thereof, to undergo six months simple imprisonment. Benefit under Section 382-B, Cr.P.C. was extended to the convict/appellant.

Muhammad Akram (father of the deceased) has filed the connected revision petition, bearing Cr.R.No.08-D/2024, seeking enhancement of sentence awarded to the appellant. Since both the appeal as well as the revision petition are the outcome of one and the same judgment, therefore, same are to be decided through this single judgment.

2.Brief resume of the facts of prosecution case as divulged from the FIR, registered on the strength of a murasila, are that on 26.11.2022, at about 16:35 hours, the complainant Abdul Qadeer, in injured condition, accompanied by PW Muhammad Abid, reported the occurrence at Emergency Room of Civil Hospital, Parova, to the effect that on the eventful day, he and Muhammad Abid (PW-9), while riding a motorcycle from Parova to their home, when they reached on the spot at about 04:00 p.m (Asar Wela), accused/appellant Faheem son of Kalo Khan was already present there, who signaled them to stop. As soon, the complainant alighted from the motorcycle, the accused drew his pistol and started firing at him with the intention to commit his qatl-i-amd. As a result of firing,

the complainant sustained an abdominal injury, while PW Muhammad Abid fortunately escaped unheard.

After commission of the occurrence, the accused fled from the crime scene. Motive for the offence was disclosed to be sending of immoral messages on WhatsApp. The report of the complainant was verified by PW Muhammad Abid. Initially, case was registered under Section 324, however, the injured complainant was referred to civil hospital, D.I.Khan where he succumbed to his injuries on 28.11.2022, hence, Section 302 PPC was added in the FIR.

It is worth mentioning that on 17.12.2022, statement of PW Muhammad Abid (PW-9) was recorded under Section 164/364, Cr.P.C., before the Judicial Magistrate, Parova, wherein he charged the accused for effective firing at the deceased and ineffective firing at him.

3.On 04.12.2022, the accused was arrested and after completion of investigation, challan was submitted against him before the trial Court. At the commencement of trial, the prosecution produced and examined as many as eleven (11) witnesses, whereafter, accused was examined under section 342, Cr.P.C., wherein he professed innocence and false implication.

However, neither he opted to be examined on oath in terms of Section 340(2), Cr.P.C., nor produced defence

evidence. The learned trial Court, after hearing arguments, vide judgment impugned herein, convicted the appellant and sentenced him, as mentioned above, hence, the instant appeal, while the connected criminal revision has been filed for enhancement of the awarded sentence.

4.We have heard the arguments of learned counsel for the appellant and the learned AAG assisted by learned counsel for the complainant. Record was gone through with their able assistance.

5.There is no denial to this fact that the appellant was singularly charged by the deceased then injured, which, as held by the superior Court, is a rare phenomenon and that the matter was reported with promptitude. However, this would not be sufficient to absolve the prosecution of its liability to bring home guilt of the accused beyond any reasonable doubt. In Mst. Sughra Begum’s case1, the apex Court held that it is cardinal principle of justice that ocular account in cases of capital punishment plays a decisive and vital role and once its intrinsic worth is accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution. To the contrary, once the ocular account is disbelieved then no other evidence, Mst. Sughra Begum and another vs. Qaiser Pervez and others (2015 SCMR 1142)

even of a high degree and value, would be sufficient for recording conviction on a capital charge therefore, we have to see the probative value of the ocular account in light of the facts and circumstances of the case. As per prosecution version, the deceased was accompanied by Muhammad Abid PW-9, at the time of incident and the report lodged by the deceased then injured was verified by him inasmuch as his statement under section 164/364, Cr.P.C. was also recorded before the Judicial Magistrate, Parova on 17.12.2022, wherein he charged the accused for ineffective firing at him as well as effective firing at the deceased. Site plan was also prepared on his pointation and in his presence, the concerned Investigating Officer took into possession blood through cotton from the place of deceased and also recovered one empty of .30 bore from the crime scene. At first instance, we would like to discuss the ocular account furnished by Muhammad Abid PW-9.

He reiterated same story as narrated in the FIR. It is, however, noteworthy that according to the report, at the time of occurrence, only the deceased had deboarded from the motorcycle, whereas the alleged eyewitness stated in his statements recorded under sections 161 as well as statement under section 164/364, Cr.P.C coupled with the Court statement, that at the time of incident, only he deboarded from the motorcycle.

During cross-examination, PW-9 was confronted with his statements recorded under sections 161 as well as 164, Cr.P.C, wherein he admitted that in both the statements neither he mentioned the time of their departure to village Parova, nor the purpose of their visit to said village. Similarly, he admitted that he did not mention the fact that who was driving the motorbike at the time of incident. The motorcycle was never taken into possession by the local police. He did not know about the ownership of the said motorcycle. According to him, no driving license was produced to police. He admitted that he had never stated in his ibid statements that the accused had sent some messages through WhatsApp to women of his family. He admitted that the said messages and mobile phone were not produced to the local police. By improving his earlier version, he stated that he took the injured to the hospital on motorcycle, which was not recorded in his statement u/s 164, Cr.P.C. According to him, although his clothes were besmeared with blood of the injured at the time of shifting to the hospital, however, he had not produced the same to the local police. Similarly, he admitted that he did not hand over the shawl to the local police.

According to him, the accused made 2/3 fire-shots and fled away. According to him, the accused made firing at distance of 4/5 paces from them. He stated that the

Police Station as well as the hospital would be at a distance of 15/16 kilometer from the place of occurrence, which are adjacent. After the occurrence, he informed father of deceased then injured through his cell phone, who along with other relatives reached the hospital. According to him, no one attracted to the spot at the time of occurrence. According to him, he did not accompany the injured to DHQ Hospital D.I.Khan and went back to the spot. He stated that after 20/25 minutes of lodging the report of the occurrence, he left Paroa civil hospital for the spot where he reached after 5:30 p.m. He stated that his father or brothers did not attract to the spot at the time of occurrence nor did they come there at the time of his arrival to the spot from the hospital. Deceased Qadeer was his friend for 8/10 years.

He admitted that there was cutting over the time of occurrence mentioned in his statement u/s 164, Cr.P.C.

He was unaware about recording the statement of father of deceased in the hospital. In view of the glaring infirmities, highlighted above, it can safely be concluded that the alleged eyewitness was not present on the spot at the time of occurrence.

6.Now coming to the report lodged by the deceased then injured. In this respect, statement of Dr.

Muhammad Hanan Khan would be helpful to arrive at a just conclusion. He was examined before the trial Court

as PW-3. According to him, on 26.11.2022, the local police produced to him the then injured and he medically examined him at 4:20 p.m. It is noteworthy that as per prosecution version, the occurrence allegedly took place at 04:00 p.m, whereas the matter was reported at about 4:35 p.m, meaning thereby that the injured was examined 15 minutes before lodging the report. This aspect creates serious dent regarding mode and manner of the occurrence and shifting of the deceased then injured to the hospital.

PW-3 observed an entry wound of size 0.5x0.5 c.m about 3 cm above the umbilicus with exit wound of size 1x1 cm on left flank area. After giving first aid, the then injured was referred to DHQ Hospital, D.I.Khan for further treatment. According to PW-3, probable duration of injury and examination was 30 minutes to one hour. During cross-examination, PW-3 admitted that the injured was brought by the local police. He admitted cutting/overwriting over the date and hour of arrival. He admitted that he did not know as to whom he handed over the MLC. He admitted that no time and hour etc was mentioned in the injury sheet Ex. PW 1/1 by the concerned police officer. However, he stated that the name of the constable was mentioned in Ex.PW 1/1, who brought the injured for examination and initial of

the police official were available to whom MLC report was handed over.

On 28.10.2022, Dr. Jawad Salim (PW-4)

conducted autopsy on the dead body of deceased and observed a midline laparotomy wound; a transverse wound (approximately) 5 cm in length 2 cm above and 4 cm lateral to left side of umbilicus. (Post-operative injuries). An entry wound 0.5 cmx 0.5 cm approximately about 3 cm above the umbilicus. An exit wound 1x1 cm approximately on the left flank area.

Walls, peritoneum, small and large intestines and their contents were found injured. During cross-examination, he admitted that column meant for name of the person who brought dead body was left blank. Similar is the position with second column. He admitted that time of death is also not mentioned. Time of death and the time of examination of dead body was also not mentioned in the postmortem report. According to him, the deceased was passed through operation/surgery process. He had taken papers of operation and handed over to the police which were not available on judicial file.

There is no denial to this fact that the supplementary statement of the deceased then injured was recorded on following day of the occurrence i.e.

27.11.2022 and the only inference which could be drawn therefrom is that if the deceased then injured was

in senses and capable to talk, then why his statement was not recorded on 26.11.2022.

In Mst. Ghulam Zohra’s case2, it was held by the apex Court that:-

“Police Officer had not obtained certificate from the Doctor before recording the statement of the deceased in an injured condition that he was in a fit condition to give the statement, nor he had given a plausible explanation for such omission and fitness of the deceased to make the statement, thus, remained doubtful.”

In Mst. Zahid Bibi’s case3 it was held that:- “This is an admitted fact that the statement of the deceased was not recorded by the Sub-Inspector of police in hospital in presence of the doctor and further neither any member of the hospital staff was associated at the time of recording the statement nor it was got verified by any official of the hospital that the statement was actually made by the deceased. Be that as it may, the status of such a statement would be hardly a statement under section 161, Cr.P.C. and not a dying declaration of the deceased. This may be seen that the dying declaration or a statement of a person without the test of cross-examination is a weak kind of evidence and its credibility certainly depends upon the authenticity of the record and the circumstances under which it is recorded, therefore, believing or disbelieving the evidence of dying declaration is a matter of judgment but it is dangerous to accept such statement without careful scrutiny of the evidence and the surrounding circumstances, to draw a correct conclusion regarding its .truthfulness. The rule of criminal administration of justice is that the dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell lie. This is a matter of common knowledge that in such circumstances in 2 Mst. Ghulam Zohra and another Vs. Malik Muhammad Sadiq and another (1997 SCMR 449) 3 Mst. Zahid Bibi vs. The State (PLD 2006 SC 255)

preference to any other person, a doctor is most trustworthy and reliable person for a patient to depose confidence in him with the expectation of sympathy and better treatment to disclose the true facts. In the present case, in the manner in which the statement of deceased was recorded by the Sub-Inspector, would seriously reflect upon its correctness and consequently, could not be considered worthy of any credit to be relied upon as dying declaration”.

7.The case was investigated by Mukhtiar Akhtar SI. He was examined as PW-5. During cross examination, he stated that on getting information from Moharrir of the Police Station, he proceeded to the spot, however, nothing was available in black and white in this respect. He stated that according to Zimini, they left Police Station at 16:20 hours and reached the spot at 17:05 hours. He stated that FIR was received by him through constable Ghulam Ullah No.8283 at 17:40 hours. He admitted that the FIR was not signed by him.

He was unaware that who had brought the eyewitness on the spot. He admitted that he had not mentioned the name of driver or number of official vehicle through which he went to the spot. He had not recorded the statement of driver. He admitted that he had neither mentioned the name of person in search memo who allegedly pointed out the house of accused to him, nor he had recorded statement of anyone in this respect. He admitted that at the time of recording the supplementary statement, the complainant was not checked through

doctor with regard to his capability to talk as the then injured was in senses and able to talk. He, however, admitted that there was no signature of the deceased then injured over the supplementary statement. He admitted that he had not verified the supplementary statement from any doctor. He was unable to produce the documents of surgery. He admitted that the documents of surgery were not handed over to him by Medical Officer of Paroa. He had not applied to Incharge of any hospital for obtaining the documents of surgery. He admitted that he had not recorded the statement of Surgeon who conducted surgery of deceased then injured. According to him, no pistol etc were recovered form the accused. He clearly admitted that the complainant had not disclosed to him the registration number of the motorcycle through which they were proceeding at the time of occurrence.

Similarly, the company of the motorcycle and original owner was not disclosed to him. He admitted that the motorcycle was not recovered. He admitted that the eye witness had not shown to him any blood-stained clothes or hands besmeared with blood. He admitted that he had not mentioned anything about the fact that the deceased then injured was shifted by the eyewitness from the spot nor had mentioned the source through which the injured was shifted. He admitted that he had not recorded

statement of any of the legal heirs of the deceased before his death. He disclosed that the accused had attempted to commit sodomy with the deceased which was the previous enmity between the parties. However, the deceased then injured had not disclosed this fact during recording of statement u/s 161, Cr.P.C. He admitted that he had not recorded statement of anyone regarding previous ill-will/enmity between the accused and the deceased.

8.Yet another aspect of the case is the communication of information with respect to the occurrence. In this respect, Mani Khan SI was examined before the Court as PW-1. He stated that on 26.11.2022, after receiving information regarding taking of injured to Paroa hospital, he alongwith constable Ghulam Ullah and Anwar Shah proceeded to the hospital where the deceased then injured in the company of PW Muhammad Abid made report of the occurrence. He drafted murasila and prepared injury sheet and referred the injured to the doctor for treatment through constable Awnar Shah, while murasila was sent to Police Station through constable Ghulam Ullah No.8283. During cross-examination, he admitted that he had not mentioned in the murasila that, “I received information from PS regarding brought of injured to Paroa hospital”.

Similarly, he admitted that he had not mentioned in the

murasila that, “I alongwith constable Ghulam Ullah and Anwar Shah accompanied me to the hospital”. He admitted that he had not mentioned in the murasila that who informed him regarding the occurrence. He stated that Muharrir had informed him about the occurrence.

He was unaware that whether said information was entered in the daily diary or not. He admitted that he did not obtain opinion of the Medical Officer regarding the fact that the injured was capable to talk or not. He admitted that CNIC number of PW Muhammad Abid was not available on murasila. He further admitted that he had not given the time of entry of injured and the time at which the same was prepared. Similar is the position with Ex. PW 1/1.

9.Insofar as recovery of blood and one empty of .30 bore is concerned, suffice it say that the same being corroboratory in nature would not be sufficient for recording conviction on a capital charge, once the ocular account was disbelieved, as held by the apex Court in Mst. Sughra Begum and another case (supra).

10.The prosecution alleged motive to be sending of WhatsApp messages to the women of Muhammad Abid PW-9, however, it did not succeed in establishing the alleged motive and even no independent witness was produced in that respect. When the prosecution did not succeed in establishing the motive,

then it is for the prosecution to suffer, as is held in case of Hakim Ali’s case4, that the prosecution though not called upon to establish motive in every case, yet once it has setup a motive and failed to establish, the prosecution must suffer consequences and not the defence. Similar view was reiterated in the Amin Ullah’s case5, wherein it was observed that motive is an important constituent and if found by the Court to be untrue, the Court should be on guard to accept the prosecution story. It was again re-enforced by the august Supreme Court in the case of Muhammad Sadiq’s case6. Again, on the same principle, reference can be made to Noor Muhammad7 and Amin Ali’s cases8.

11.There is no two opinion about the fact that the cardinal principle of justice always laid emphasis on the quality of evidence which must be of first degree and sufficient enough to dispel the apprehension of the Court with regard to the implication of innocent persons alongwith guilty one by the prosecution, otherwise, the golden principle of justice would come into play that even a single doubt if found reasonable would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts are not required to Hakim Ali Vs. The State (1971 SCMR-432)

Amin Ullah Vs. The State (PLD 1976 SC 629) Muhammad Sadiq Vs. Muhammad Sarwar (1979 SCMR 214) Noor Muhammad Vs. The State and another (2010 SCMR 97) Amin Ali and another Vs. The State (2011 SCMR 323)

extend the legal benefit to the accused. Rel: Riaz Masih alias Mithoo vs. State9. In a recent judgment, the Honourable Supreme Court of Pakistan in Ahmad Ali and another’s case10 it was held by the apex Court that:

“Even otherwise, it is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the cases reported as Tajamal Hussain v. The State (2022 SCMR 1567), Sajjad Hussain v. The State (2022 SCMR 1540), Abdul Ghafoor v. The State (2022 SCMR 1527 SC), Kashif Ali v. The State (2022 SCMR 1515), Muhammad Ashraf v. The State (2022 SCMR 1328), Khalid Mehmood v. The State (2022 SCMR 1148), Muhammad Sami Ullah v. The State (2022 SCMR 998), Bashir Muhammad Khan v. The State (2022 SCMR 986), The State v. Ahmed Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. The State (2021 SCMR 736), Muhammad Imran v. The State (2020 SCMR 857), Abdul Jabbar v. The State (2019 SCMR 129), Mst. Asia Bibi v. The State (PLD 2019 SC 64), Hashim Qasim v. The State (2017 SCMR 986), Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Zaman v. The State (2014 SCMR 749 SC), Khalid Mehmood v. The State (2011 SCMR 664), Muhammad Akram v. The State (2009 SCMR 230), Faheem Ahmed Farooqui v. The State (2008 SCMR 1572), Ghulam Qadir v. The State (2008 SCMR 1221) and Tariq Pervaiz v. The State (1995 SCMR 1345).”

Riaz Masih alias Mithoo Vs. State” (NLR 1995 Cr.SC 694) Ahmad Ali and another Vs. The State” (2023 SCMR 781)

12.For the aforesaid reasons, we have come to an irresistible conclusion that the prosecution has failed to prove its case against the accused beyond any reasonable shadow of doubt, benefit of which, as stated above, is extended to the accused as matter of right and not as a matter of grace. The instant criminal appeal is allowed, the impugned judgment is set aside, resultantly, the appellant is acquitted of the charges levelled against him. He shall be released forthwith, if not required to be detained in connection with any other case. Since we have set aside the impugned conviction awarded to the appellant, hence, the connected revision petition, bearing Cr.R.No.08-D/2024, has become infructuous, which stands dismissed accordingly.

13.Above are the reasons for our short order of even date.

Announced.

Dt: 24.6.2025. Sd/-

JUDGE

Sd/-

JUDGE

(D.B)

Hon’ble Justice Farah Jamshed Hon’ble Justice Inam Ullah Khan