Abdullah Mir & another Vs The State etc

(Judicial Department)

Abdullah Mir & another.

Vs.

The State etc.

For Appellant:

For State:

For Respondents:

Date of hearing:

*r.**

This judgment

shall dispose of Criminal Appeal No.142-812023 titled 'Abdullah Mir & another Vs. The State etc' and connected Criminal Revision No.32-B/2023, being the outcome of one and the same judgment dated 28.3.2023, handed down by learned Additional Sessions Judge-I, North Waziristan at Bannu, whereby the appellants were convicted under Section 302(b) PPC for qatl-i-amd of Hamood Khan, and sentenced to imprisonment for life and also to pay of Rs.5,00,000/- (five lac) to legal heirs of the deceased in terms of section 544-4', Cr.P.C. or in default thereof, to undergo six months simple imprisonment. Benefit of Section 382-B, Cr.P.C.

was also extended to the convicts/appellants.

V 2. Brief resume of the facts of prosecution case, as narrated in the F.I.& registered on the strength of a murasila, is that on 22.8.2020 at 12:20 hours, complainant Kamil Khan, reported the occurrence at Emergency Ward of D.H.Q Hospital, Miranshah, to the effect that on the fateful day, he along with his son Khamood Khan, were busy in their fields situated near their house, in the meanwhile, at about 07:30 hours, their co-villagers i.e. accused Abdullatr Mir and Gul Raif sons of Saldri Jan, duly armed with Kalashnikovs, came there where accused Abdullah Mir commanded his sons that they shall not be spared, upon which both the accused started firing at them. As a result of firing, Hamood Khan, son of the complainant got hit, fell to the ground and succumbed to his injuries on the spot, whereas he (the comptainant) fortunately escaped unhurt. After commission of the occurrence, the accused fled away. A dispute over the property was stated to be served as motive.

3.It is worth mentioning that on said date i.e.

22.8.2020 at about 10:20 hours, Abdullah Mir (appellant herein), along with his injured brother Gul Raif Khan (appellant), made report at Emergency Ward of civil Hospital, North Waziristan to the effect that on the same day, they were busy in their fields situated near their house. At about 07:30 hours, accused Kamil Khan,

Dizertai, Gudi, Umer Ayar, Hamood, Khanullah and Khairullah, duly armed with Kalashnikovs, came there and made firing at them with murderous intention, as a result thereof, Gul Raif Khan was hit and got injured, whereas he escaped unhurt, and in this regard case F.I.R No.56, dated 22.8.2020, under Section 324134 P.P.C was registered at Police Station Razmak, District North Waziristan.

4.On completion of the investigation, complete challan was submiued before the trial Court where at the commencement of ffial, the prosecution produced and examined as many as 07 wifinesses, whereafter, statements of accused under Section 342, Cr.P.C. were recorded w-here they professed innocence and false implication. They, however, neither opted to be examined on oath in terms of Section 340(2), Cr.P.C.

nor produced evidence in their defence. The learned trial Court after hearing both the sides, vide impugned judgment dated 28.3.2023, convicted the appellants and sentenced them, as mentioned above, which has been assailed through the instant appeal, whereas connected revision petition has been filed for enhancement of the awarded sentence.

5.Arguments of learned counsel for the appeltants and that of the learned State counsel assisted

by learned counsel for the complainant were heard.

Record was gone through.

6.Before proceeding further, it would be convenient to mention here that there are two reports of the incident, one made by complainant Kamil Nawaz, charging the appellants for the murder of his son Hamood Khan. The said report was made at about 12:20 hours, mentioning the time of occurrence as 07:30 hours.

However, prior to the above report of Kamil Nawaz, appellant Abdullah Mir reported the matter at about 10:20 hours, charging Kamil Khan and co-accused for effective firing at his brother Gul Raif Khan. Although, the report of appellant is prior in time as to the report of Kamil Nawaz complainant, however, time of occurrence in both the reports is one and the same.

7.In this case, complainant Kamil Khan was examined before the trial Court as PW-6. Undeniably, deceased Hamood Khan was his son. No doubt, testimony of related could be relied upon for sustaining conviction on a capital charge, however, it is well settled that testimony of related witness is to be scrutinized with great care and caution and to believe the testimony of related witness, strong corroboration is needed. According to the complainant, on the day of occuffence, he alongwith his son Hamood Khan were busy in their field, in the meanwhile, two persons

came there and accused Abdullah Mir ordered his co- accused whose name is not known to him, however, the same may be Abdul Raeef or Gul Raeef to shoot them, upon which the accused started firing upon them; resultantly, his son Hamood Khan was hit, injured and fell to the ground. He further stated that many co-villagers came to them and the accused decamped from the spot and entered their house.

According to him, the police came to the spot and they collected empties from the spot. The dead body was shifted to the hospital at Miran Shah and by then the other party had lodged the report with the local police.

That he lodged the report at about 07:00/07:30 a.m. He pointed out the spot to the Iuvestigating Officer.

During cross-examination, he stated that the distance between his house and the place of occurrence would be about 50 to 80 paces and the house of accused party is situated flearer to the place of occurrence than his house. He admitted that there are Morcha constructed at the house of accused and his house on the roof.

According to him, he had a dispute over landed property with the accused party as well as another person namely Sanobar. Surprisingly, he stated that the accused had come to the spot at 07:00 a.m and made firing at them. He further stated that both the accused made firing at about 50/60 paces upon him.

He stated that firstly, the accused party made firing, whereafter, he also made firing in retaliation at them.

It is astonishing, when to a question, he answered that his son was standing in between him and the accused party at the time of firing. The cross-examination of this wifiress further reveals that he came to know about l200ll2:30 noon that his son had also sustained injuries. According to him, the firing was made from a distance of 50 paces. He stated that firstly both the accused made simultaneous firing and first volley of shots went astray, whereafter one of the accused again made two fire shots which hit his son at chest. By contradicting his own statement, he stated that he was not having any arms at this moment and was empty handed and that he had personally made no firing at the accused, however, his kith and kin made firing who were,five or six in number who were at a distance of 80/100 meters. In our considered view, the above deposition was sufficient to conclude that the complainant was neither present on the spot, nor the occurrence took place in the mode and manner as narcated by the complainant. Needless to mention that deposition of complainant, referred to above, was sufficient to vitiate the prosecution case, hence, no conviction could be based by relying upon his

testimony. In case reported as "Irfan Ali Vs. the State' (2015 SCMR 840), it was held by the apex Court that:- To a'ryard a capttal punishrnent tn a murder crime, it is imperative for the prosecution to lead unimpeachable evidence of a lirst degree, which ordinarily must get strong corroboration from other independent evidence if the witnesses are interested or inimical towards the accused. In a criminal trial no presumption can be drann against the accwed person as it is a cardinal principle ofjustice that no one should be construpd into a crime without legal proof/evidence, sttficient to be acted upon. No care and caution was observed in the present case in light ofthis principle.

8.Another intriguing aspect of the case is delay in reporting the matter. As stated above, firstly, appellant Abdullah Mir had reported the matter at about 10:20 hours, wherein appettant Gul Raif Khan was injured, whereas the complainant reported the occuffence at about 12:20 hours, which allegedly took place at about 07:30 hours. In the relevant column, time of arrival of the dead body is mentioned as 12:30 hours.

In this respect, PW.3 Loye Daraz Khan S.H.O, who recorded report of the complainant, stated that the distance between spot and D.H.Q Hospital Miranshah would be 60165 kilometers, which could be covered through vehicle within I Yz or 02 hours. On the face of it, there is unexplained delay of five hours in reporting the matter to the police, hence, element of consultation and deliberations could not be ruled out. In this respect,

reliance is placed on case laws reported in (AIR 1993 State of Maharashtrar. tAllahvar Vs. The Stater (1990 SCMR-1134). 'Mahmood Ahmad and 3 others Vs.

The State and another' (1995 SCMR-127). 'Imran Hussain Vs. Amir Arshad and 2 others' (1997 (2014 SCMR-1698). In the case of Mst. Asia Bibi Vs.

The State and others (PLD 2019 S.C. 64), it was held by the apex Court that *In absence of any plausible explanation, the Supreme Court had always considered the delay in lodging of FIR to be fatal and it casted a suspicion on the prosecution story, extending the benefit of doubt to the accused--=If there was any deloy in lodging of FIR and commencement of investigation, it gave rise to a doubt, which, could not be extended to anyone else except to the accused".

9.Yet another intriguing aspect of the case is the contradiction between the time of occurrence, as alleged by the prosecution and the time of death of the deceased, in view of the statement of Dr. Sher Muhammad (PW-2). As per the prosecution, the occturence allegedly took place at about 07:30 hours, white the autopsy on the dead body of deceased was conducted at about 12:30 hours. According to the doctor PW-2, time between death and postmortem was sne and

half hour. [n this view of the matter, if the time between death and postnortem is taken back from the time of postmortem, it comes to I l:00 hours, which means that the occurrence had not taken place at about 07:30 hours, as alleged by the prosecution. This aspect ofthe case has casted a serious doubt regarding the mode and manner of the occurrence.

10.So far as recovery of crime empties and a positive report of F.S.L is concemed, suflice it to say that such type of evidence i.e. recoveries and the medical evidence are supportive pieces of evidence, hence, could not overweigh the ocular account, which has been disbelieved in the present case. The august Supreme Court of Pakistan in the case of t' ll has

enunciated the following principle of law:

The medical evidence l's only contirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit.

11.The prosecution alleged motive to be a dispute over landed property, however, it did not succeed in establishing the alleged motive and even no independent witness was produced in that respect. The prosecution, in all circumstances was to prove the same.

When the prosecution did not succeed in establishing the motive, then it is for the prosecution to suffer, as is held in case reported as

v SCMR43?, that the prosecution though not called upon to establish motive in every case, yet once it has sefup a motive and failed to establish, the prosecution must suffer consequences and not the defence. The above view has been reiterated in the case of "Mfiah Vs..

The Statett OLD 1976 SC 6291, wherein, it has been observed by their lordships, 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 Sadio Vs.

Again, on the

same principle, case laws titled "W (a

can

also be referred.

12.Accumulative effect of the whole aspects taken into consideration, leads us to only conclusion that the prosecution has miserably failed to establish the case against the appellants, otherwise to extend benefit of doubt so many circumstances are not required to be brought forth. The instant criminal appeal is allowed, the impugned judgment is set aside, resultantly, the appellants are acquitted of the charges levelled against them. They shall be released forthwith, if not required to be detained in connection with any

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other case. Since we have set aside the conviction and sentence awarded to the appellants, therefore, the connected criminal revision for enhancement of sentence has become infructuous which stands dismissed accordingly.

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

Announced.

Dt: 19.02.2025.

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