Said Raheem Vs The State etc.

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Judgment Sheet

(Judicial Department)

Cr. A No.402-B of 2023

Said Raheem Vs.

The State etc

TADGMENT

Date of hearing: 10.04.2025.

For appellant: Mr. Farooq Khan Sokari, advocate. For respondent: Mr. Salamat Shah Masood, Advocate.

For the State: Mr. Abdul Waheed Khan Khattak Asstt: A.G.

ABDUL FAYAZ, J.- The appellant, Said Rahim & Ibrahim Shah, has called in question the judgment dated 11.11.2023, rendered by leamed Additional Sessions Judge, Karak, whereby the appellants were convicted under section 302 (b) P.P.C, for the murder of Noor Ali Shah and sentenced to imprisonment for life as Ta'zir and to pay Rs.500,000/- (Five lacs) as compensation to the legal heirs of the deceased in terms of section 544 (A) cr.P.c. Both the appellants were also convicted uls 324134 PPC and upon conviction are sentenced to suffer five years simple imprisonment and they were furttrer directed to pay compensation to the tune of Rs.1,00,000/- to the *Sher Qadullah Steno+ (D.B) Hon'ble Mr. tustice MuhommadToriq Afridi & Hon'ble Mr. tustice Abdul Fayoz

a complainant and legal heirs of the deceased. In default thereof to further undergo six (06) months simple imprisonment.

Benefit of section 382-8 Cr.P.C was awarded to the appellants and both the sentences were ordered to run concurrently.

2.Brief facts of the case as per contents of F.I.R are that, on 22.07.2021, complainant Farooq Shah brought the dead body of his brother namely Noor Ali Shah to police station Shah Salim and lodged report to the effect that on the day of occurrence he alonwith his brother was present in the baitak of his cousin Hazrat Ali, when at about 18:45 hours, accused Said Rahim Shah and Ibrahim Shah duly armed with Kalashnikovs entered into the said baitak from Southern side; that accused Ibrahim Shah commanded co-accused Said Rahim to kill and not to spare, the accused Said Rahim while obeying the command, accused Said Rahim started firing upon Noor Ali Shah with the intention to commit his Qatl-e-Amd and due to said firing Noor Ali Shah got hit and succumbed to the injuries on the spot. The accused Ibrahim Shah also made firing at the complainant but he luckily escaped unhurt and ran towards the *Sher Qadullah Steno* (D,B) Hon'ble Mr. tustice Muhammod Toriq Alridi & Hon'ble Mr. tustice Abdul Foyaz

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room of the baitak for the purpose of taking shelter; that accused after the occurrence decamped from the spot towards their house. Motive behind the occulrence was attempt to commit murder of accused Said Rahim Shah. He charged both the accused for the commission of offence His report was reduced into writing and after being read over and explained, was signed by him and the same is verified by Muhammad Zafran (PW-02).

3.After completion of investigation, appellant Said Rahim was arrested, whose supplementary challan was submitted. Learned trial Court after compliance of section 265- C Cr.P.C framed the charge against him to which he pleaded not guilty and claimed trial.

4.The accused Ibrahim Shah was gone into hiding;

therefore, proceedings u/s 512 Cr.PC was initiated against him.

During the course of evidence accused Ibrahim Shah appeared on bail, therefore, his supplementary challan was sought which was submitted accordingly. After compliance with the provision of section 265-C Cr.PC, formal charge on two heads *Sher Qadullah Steno* (D.B) Hon'ble Mr. tustice Muhammad Toriq Afridi & Hon'ble Mr. lustice Abdul Foyoz

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was framed against both the accused on 04-01-2023, wherein they denied the charges and opted to face the trial. At the commencement of trial of accused/appellants, the prosecution produced and examined as many as eleven (11) witnesses. On close of prosecution evidence, accused was examined under section 342 Cr.P.C, wherein they professed innocence and false implication, however, neither they opted to be examined on oath as provided under section 340 (2) Cr.P.C, nor wished to produce defence evidence.

5.After hearing arguments, the learned tial Court vide impugned judgment dated 1 I . 1 I .2023, sentenced the accused/appellant as mentioned above, hence, the instant appeal against the judgment of conviction.

6.We have heard learned counsel for the appellants and the leamed Assistant Advocate General for the State at length and with their valuable assistance, the record was gone through.

7.In this case the alleged occurrence has taken place on 22-07-202I at about 18:45 hours while the report was *Sher Qadullah Steno* (D.B) Hon'ble Mr. lustice Muhammad Toriq Afridi & Hon'ble Mr. tustice Abdul Fayaz

recorded on the same date allegedly at 19:35 hours. The occurrence alleged to have been shown at the baitak of Hazrat Ali Shah, the cosine of the deceased Noor Ali Shah. It is an admitted fact as has been brought out from the mouth of complainant Farooq Shah (brother of the deceased) Noor Ali Shah that the house of deceased is situated at a distance of 4001350 paces away from the house of the accused baitak. It has also been brought from the mouth of complainant/PW-7 thatthe complainant owns baitak is situated 20 paces away from the house of the accused. It is also an admitted fact that the deceased said Rahim was a proclaimed offender in case Fir No.35 dated 17-02-2021 uls 324134 PPC PS Latamber which is evident from the record from overleaf of the FIR ExPA and ExPW-9i9. It has also been admitted by the complainant statement recorded as PW-7 before the learned trial Court that he and his brother are laborers in a coalmine. It has also been brought from the mouth of the complainant that they remained for five long hours and their own baitak prior to the time of occuffence and thereafter when they spent five long hours in *Sher Qadullah Steno* (D.B) Hon'ble Mr, tustice Muhommod Tariq Afridi & Hon'ble Mr. tustice Abdul Fayoz

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their baitak, they came to the baitak of their cousin Hazrat Ali Shah. When the complainant and the deceased has their own baitak and they remained there for five hours then they have to show those special reasons which prompted them to visit the baitak of Hazrat Ati Shah examined as PW-8. So there is no explanation in the statement of PW-7 regarding the special reason for which he came to the baitak of Hazrat Ali Shah. We have thoroughly seen the site plan of the present occurrence which has been prepared at the instance of PW-7. When we perused the site plan, towords the southern side of the site plan an enterance has been shown which is not covered by any gate, however, there is a small gate towards the southern side. On further perusal of site plan there are two room towards the westem side attached with the bathroom, At point No.l deceased has been shown while at point No.2 the complainantfPW-7 while point No.3 is the place of appellant Said Rahim and point-4 shows that place of appellant Ibrahim shah. Now it is in the evidence that the appellant entered through the entrance which has no proper gat. No doubt when *Sher Qadullah Stens* (D.B) Hon'ble Mr. lustice Muhommod Toriq Afridi & Hon'ble Mr. tustice Abdul Fayoz

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the firing was made allegedly by the appellant from point No.3 and appellant at point No.4, there are no bullet marks behind the wall at point No.l & 2. It has also be reported from the mouth of complainant that his life was also attempted but ineffectivety it means that he was also in the firing of appellant Said Rahim and Ibrahim. It is also in the evidence of P\M-7 complainant that he took shelter from the volley of shots in the old baitak of Hazrat Ali Shah which is attached with the baitak in which the alleged occurrence has taken place. The place which has been shown as old baitak of Hazrat Ali Shah its gate opened towards the Northern side and this old baitak has no gate towards the new baitaik in which the alleged occurrence has taken place, which fact falsiff the version of the complainant/PW-7 that he took shelter from the volley of shots in the old baitak. Moreover, nor the complainant has shown a specific place in the old baitak nor the investigating officer had tried or asked the complainant to show the place specifically where he took shelter. Even otherwise it does not appealable to the prudent mind that from a distances of almo st 1,2 feet and 20 *Sher Qadullah Steno* (D.B) Hon'ble Mr. tustice Muhqmmad Tariq Alridi & Hon'ble Mr. lustice AMul Foyoz

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feet when two persons are firing the person who is at similar distances i.e. the deceased as received 03 firearm entry wound on the same direction while complainant who is more close to the appellants has even not received a single scratch which fact proves nothing more but the absence of the complainant at the alleged time of occuffence with the deceased. We have also examined the statement of PW-5 recorded before the trial court, his statement and cross examination is hereby reproduced as under:-

On 22.7.2021, Muhammad Zafran PASI handed over to me the dead body of Noor Ali Shah s/o Habib Shah alongwith inquest report and injury sheet which I escorted to Civil Hospital TakhLe-Nasrati and handed over to the Medical Offrcer for postmortem examination. After P.M examination, the M.O handed over to me P.M report alongwith blood stained garments of the deceased which I brought back to the P.S and handed over to the investigation ol/icer. My statement was recorded by the I.O n/s 161 Cn.PC.

fl( The distance in-between P.S Shah Salim and Civil Hospital Takht-e-Nasrati is of 25/30 minutes' drive. I was in my own room at P.S when the dead body was brought. I was called on from my room thereafter, I was ulone in my room. Self stated that there is none else with me in the room. I was called after some time of 08:00 pm. The dead body was entrusted to me at 08:05pm. There were two male, two female and a driver with the dead body. Self stated that I was not *Sher Qadullah Steno* (D.B) Hon'ble Mr. lustice Muhammod Toriq Alridi & Hon'ble Mr. lustice Abdul Fayoz

a knowing theme. I met the doctor in emergency room of the Hospilal. The police personnel composed of Incharge casualty $,as present with the doctor. The doctor started proceeding immediately on my handing over to him the tnjury sheet and inquest documents. He took the dead body in emergency room. The doctor might have consumed one and half or two hours on postmortem proceedings. The doctor might have come out from emergenq) room at about 11:00 pm. I am resident of Takht-e-Nasrati. My home is at a distance of 15 minutes pedestrion walk from hospital It is incorrect to suggest that I was at home and had not accompanied the dead body from Police Station to Hospital. I had handed over the Postmortem report alongwith garments of deceased to Investigating Officer in Police Station at about 11:30 pm" I alone returned to Police Station at my own by getting a lift through motorcycle. The motorcycle rider was not known to me rather he was on his way and I got a ffi from him, I had not stated to the Investigating Offrcer regarding the meons of my return to Police Station. It is incorrect to suggest that I have deposed in Court falselyfor the success of prosecution case.

8.When he was questioned that who was accompany the dead body when brought to the hospital of Takht-e-Nusrati he stated "there were two male, two female and driver with the dead body" "He further stated that he was not knowing them,'.

This facts alone is sufficient that the dead body was brought by women folk of the deceased family and the two male members as stated by PW-5. It has also been brought from the mouth of PW-8 Hazrat Ali Shah in whose baitak the alleged occurrence *Sher Qadullah Steno* (D.B) Hon'ble Mn tustice Muhommad Toriq Afridi & Hon'ble Mr. tustice Abdul Fayaz

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has taken place who has stated that they are 07 brothers residing in the same vicinity and they all the brothers have got a joint baitak and this is not the version of the complainant they came to the baitak of Hazrat Ali Shah to meet either Haztat Ali Shah or any of his brother amongst the seven. In the absence of such a statement we are of view that complainant has not proved /established his presence at the time of occulrence with the deceased. Reliance in this context is placed on the case of "MIR I/UT KHAN alias MATOKAI--Appellant Vs. THE STASTE--- Respondent reported as 2002 PCT.LJ l9l4 Peshawar, The relevant para is reproduced as under:-

Having considered the contentions of learned consel for the parties in the light of the material on file we are convinced that the claim of complainant khbiat Shah Gul and Nishad Gul P.Ws. having seen the occurrence, stands belied by a host of circumstances and they were not present at the spot at relevant time and had not seen the occurrence. Had they been present they might not have been spared in order to create evidence. The appellant seems to have been charged on suspicion which cannot take the place of the legal proof. The eye witnesses are not only closely related to the deceased and inimically disposed towaqrSds appellant but are chance witnesses. It is diflicult to believe that four assailants duly armed with Kalashnikovs resort to indiscriminate liring from a close range and the firing continues for 415 minutes but only one of the members of the complainant party a little ahead of his companions namely Khyal Shah Gul and Nishad Gul P.Ws. is hit fatally but the remaining sustain no injury and escape unhurt and they also survive during the second round of firing on them when they are stated to have approached the dead body to remove the same from the spot.

*Sher Qadullah Steno+ (D.B) Hon'ble Mr. tustice Muhammod Tariq Alridi & Hon'ble Mr. tustice Abdul Foyoz

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It is undoubtedly true that interested evidence is not necessarily unreliable evidence and relationship, by itself, is not a valid ground for rejecting sworn testimony, nor can it be laid down as an invariable rule equally true that in cases where the rival parties are found to have deep rooted enmity and they have reasons for false implication the Court insists for independent corroboration. In the instant case no such corroboration is available. A specific motive has been attributed to the appellant but the prosecution has not been able to establish the same. Motive is double-edged weapon. It cuts both the ways. So far as the abscondance is concerned, it is not denied that abscondence alone cannot be a substitute for real evidence because people do abscond though falsely charged in order to save themselves from agony of protected trial. In the instant case abscondence is meaningless because it can neither remove the defects of the oral evidence nor is by itself suflicient to bring guilt home to the accused respondent as held by this court State v. Iftikhar 2002}il.ILD 347 (Peshawar).

9.Another reliance is placed on the case fuht SADDAN BIBI--- Petitioner Vs. MUHAMMAD AMIR and others---Respondenfs, reported 2005 SCMR 1128. The relevant para is reproduced as under:- The other eye witness, namely, F'ateh Sher (P.W.10) claimd to be resident of the place of occurrence but then admitted in cross examination that during the days of occurrence, he used to live in Chak No.8- Rakh Haiderabad.

Similarly was the position of Shah Nawaz (P.W.12). He was the one with whom the accused party was allegedly in litigation about the land in question and thus he was the one against whom the respondents had the alleged motive. He claimed to have been present at the place of occurrence and it was, therefore, rightly held by the High Court that the presence of Shah Nawaz P.W. at the place of occurrence at the relevant time was also open to serious doubts.

*Sher Qadullah Steno* (D.B) Hon'ble Mr, tustice Muhammad Tariq Afridi & Hon'ble Mr. tustice Abdul Foyaz

10.Another reliance is placed on the case Muhammad Ali ---Appellant Vs. The State*-Respondent, reported 2015 SCMR 137. The relevant para is reproduced as under:-

According to the prosecution the ['.I.R has been registered on 10 to 30 am on the same day for the incident which has taken place at 9-15 a.m. According to P.W.3 Amjad Ali and P.W.4 Manzoor Ahmed, who allegedly had seen the occurrence, the incident has taken place at at open place which was not surrounded by the houses. Admittedly both the P.Ws. are not residents of the locality where the occurrence took place and they are chance witnesses. The role ascribed to Noor Muhammad and Riaz is in contradiction with the medical evidence, as the complainant in his supplementary statement has mentioned that Noor Muhammad gave a hatchet blow on the head of the deceased from the sharp side whereas the said injury was declared by the doctor as caused by a blunt weapon. The medical evidence also does not support the ocular account qua the number of injuries as according to the Doctor P.W.6 the deceased had f received as many as 8 injuries. Injuries Nos. 6 and 8 t/ were incised wounds, injures Nos, 1, 2 and 7 were caused by blunt weapon while injuries Nosr3, 4 and 5 were caused by firea4rms. Only one injury on thigh has been attributed to the appellant. The doctor has also found blackening on the injuries which means that the injuries could have been caused from a distance of three feet or less. But according to site plan, the distance between the assailants and the deceased was about 2 karams which is equal to 11 feet. In such circumstances, the presence of the eye-witnesses at the spot is doubtful. Had they been present at the spot and had witnessed the occurrence, they could have ascribed the correct role to the accused and explain all the injuries on the person of the deceased.

*Sher Qadullah Steno* (D.B) Hon'ble Mr. lustice Muhsmmod Toriq Alridi & Hon'ble Mr. tustice Abdul Foyaz

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Another reliance is placed on the case Muhammad Khan and

reported in 1999 another---Appellants Vs. THE STATE---Respondent' SCMR l220.The relevant portion is reproduced as under:- This laxity on the part of the eye witnesses without any convincing justification creates doubt in their presence at the relevant time.

Hence by accepting this criminal appeal we set-aside the judgment and order passed by the learned trial court and acquit the appellants from the charges leveled against them. They be released forthwith if not required in any other case. As we have allowed the criminal appeal No.402-B of 2023, therefore, the criminal revision No.02-B of 2024 titled Farooq Shah vs Said Rahim etc being the least of merit is hereby dismissed.

Announced

tlL *Sher Qad Ullah steno* Wq

JUDGE

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f'

JUDGE

-Sd- ) ( Judge

-Sd- Judge

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*Sher Qadullah Steno* (D.B) Hon'ble Mr. lustice Muhammad Tariq Afridi & Hon'ble Mr. tustice Abdul Foyoz