Inamullah Vs The State etc

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JUDGMENT SITEET

IN THE PESHAWARIIIGH COURT,

BAI\NUBENCH.

(ludicial Departmenf Cr.A. No. 144-812024 with M.R No.03-B/2024.

Inamullah.

Vs:

The State etc.

JUDGMENT

Date of hearing 06.05.2025.

For appellant: Mr. Farooq Khan Sokari, advocate. For the State: Mr. Muhammad Asghar Khan Ahamdzai, Addl: A.G.

For Respondent: Mr. Sawal Nazir Khan, advocate.

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ABDUL FAYAZ.J.-

1.At a trial held by the learned Additional Sessions Judge- II, Bannu, appellant Inamullah s/o Samimullah alias Samiullah rloTaji Killa, Distxict Bannu, was convicted by the leamed ibid court u/s 302 (b) P.P.C for the murder of deceased Farman Khan and sentenced to normal penalty of death with further burden ofRs.500,000/- (five lacs) payable to the legal heirs of the deceased in terms of section 544-ACr.P.C and in default of payment the amount referred to above shall be recoverable as

arreaxs of land revenue. He was also convicted for the murderous assault on complainant uls 324 P.P'C and sentenced to 05 years RI with a fine of Rs.20,000/- in default of payment to further 02 months SI, with extension of benefit tt/s 382-8 Cr.P.C.

2.As per contents of F.I.R, Jehangir Khan (complainant) on 04.10.2022 at about 07:10 a.m, in the civil hospital Bannu while accompanying the dead body of his brother Farman Khan apprised the police with regard to the incident that on the eventful day he alongwith his deceased brother started from the petrol pump of Shah Zaman on foot to their house. On reaching the spot at about 06:15 hours, accused Inamullah armed with Kalashnikov and Samiullah empty handed emerged and on the of Samimullah, accused Inam Ullah launched murderous assault by firing at complainant party with intention to kill, resultantly, Farman Khan got hit and fell down while complainant remained unhurt luckily. On attending his brother, he succumbed to his injuries. Forbidding the people from use of thoroughfare served as motive for the offence. On the shength of murasila report, F.I.R No.788 dated 04.10.2022 was registered dsl 3021324134 P.P.C at Police Station, Mira Khel, District, Bannu.

3.After the arrest of accused, challan was submitted to the court and on the conclusion of the trial, the appellant was convicted and sentenced as mentioned above vide impugned judgment dated 10.07.2024, while co-accused Samimullah was by extending him benefit of doubt. The appellant assailed his conviction and sentence through the instant criminal appeal.

4.The prosecution in this case has examined as many as 08 witnesses. Thereafter, on 15.01.2024, the leamed Additional Public Prosecutor closed the evidence of prosecution and the accused were examined uls 342 Cr.P.C, however, they wished to be examined as his own witness and opted to produce defence as well. The leamed trial court announced the impugned judgment on 10.07 .2024.

5.In this case, the star witress of the occurrence is Jehangir Khan Complainant aged about 42 years s/o Y:hair-Uz-Zaman who appeared as PW-7 before the trial court. Another witness in the instant case is the medical offrcer Dr. Jabbar Ahmad appeared as PW-5, who conducted the PM examination of the deceased Farman Khan on the same day at about 06:45 a.m. For ready reference and perusal, both the statements are hereby respectively reproduced as under:-

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"On the day of occurrence, I alongwith my deceased brother Farman was going frotn petrol pump of one Shah Zaman to our house on foot. When we reached to Kacha Rosta, near fields of Rasool Zaman, it was 06:15 hours, that accused Inamullah son of Samiullah duly armed with Kalashnikov and Samimullah alias Samiullah son of Molil was empty handed came there. Inamullah started Jiring with his Kalashnikov on the command of his fother Samiullah, at us. Resultantly, my brother Farmanullah got hit and fall on the ground while I escaped unhurt luckily. Accused Jled away from spot afier commission of offence' When I attended my brother he succumbed to his iniuries on the spot. Motive for the occurrence wos, preventing us as well as others to use the thoroughfare. I shified dead body of my brother to civil hospital andreported the matter to the police at about 07:10 hours. The report was read over to me whtch I correctly thumb impressed as a token of its correctness. I correctly identified the dead body of my deceased brother. I was called by investigating fficer to come to the spot. On this I left the hospital for spot where investigating fficer was present and he collected blood- stained earth from place of deceased Farman Khan, 06 crime empties of 7.62 bore freshly discharged from the place of accused Inamullah. During relevant time police constable brought blood-stained garments belonging to deceased alongwith relevant documents, in my presence on the spot. I also pointed-out the crime scene to the investigating fficer and prepared site-plan on my pointation. My supplementary statement was also recorded. I charged the accusedfor the commission of offence. )A(. The occurrence tookplace about 06:15 hours. Some of the people was busy in offering prayers while some people have come out from the Masjid. Accused Inamullah and Samiullah used to reside in separate house. Witness added that at the time of occurrence they were present together. I am q tractor driver while deceased was watchman in petrol punp in Shah Zaman pump. He was performing his duty tn said pump alone. I parked my tractor tn the said petrol pu*p prior to the occurrence, thereafter; we started walking towards our house. It is correct that I have not stated to the police about the fact pertaining to the parking of tractor in the said petrol pump. It is incorrect to suggest today I have made dishonest improvement in this regard. It is incorrect to suggest there ts no thoroughfare situated near the place of occurrence. It

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is correct that there are so many thoroughfares leading to our house/village. It is incorrect to suggest that we were not using this thoroughfare leading to our house. The distance between accused Inamullah and Samiullah would be 07 paces. Accused made burst fire at us, however, I had not counted number offire shots which were lasted because it was stress moment. The distance between accused Inamullah and deceased Farmanullah would be 06 paces while distance between me and deceased (Farmanullah) would be 05 to 06 paces. When I attended my brother, the blood was oozing from his body. I took him in my hand/laps. My clothes besmeared with the blood of my brother. As it was tense tnoment, therefore, I do not remember that whether I handed over my blood'stained clothes to the police or not ttll date. I lucHly escaped unhurt. It is incorrect to suggest that I was not present with my deceased brother at the tirne of occurrence, therefore, I had not handed over my blood stained clothes to the police. I had not taken any shelter from the firing of accused Inamullah. I was so scared due to fear. It is incorrect to suggest that accused Samiullah was not present at the time ,/' of occurrence. The distance between our house and accused house would be 02 or 03 fields. In those days fields were ready for cultivation. The distance between place of occurrence and Bannu - D.I.Khan road would be 50 to 60 paces. The co-villagers attracted to the spot and we shified deceased to the hospital. Cot was arranged by co-vilalger, however, I do not remember his name. lk shified the dead body in open Suzuki vane to civil hospital. The deceased was succumbed to the injuries when I attended him. While proceeding to the hospital from the spot, police station Mira Khel falls on the wry. I made report at about 07:10 hours in civil hospital Bannu of the occurrence. The distance between the place of occurrence and D.H.Q hospital is coverable within i5 minutes, however, I cannot tell the exact distance in term of KMs. It is incorrect to suggest thot the dead body was shified by the co-villagers and then I was rushed to the hospital. The occurrence took place at 06:15 a.m, and no darkness. I observed watch time and it was about 06:15 hours. It is incorrect to suggest that I have given factitious timtng of the occurrence in my report. It is further incorrect to suggest that the occurrence took place in dark time. It is further incorrect to suggest that I was procured much later afier the occurrence. It is further incorrect to suggest that I have reported the matter

in hospital rather than Police Station Mtra Khel for above stated reason. It is further incorrect to suggest that I have falsely implicated accused on trial. (The whole suggestions are incorrect). "

"On 04.10.2022 at obout 06:45 a.m, I conducted autopsy on the dead body of deceased Farman Khan identified by Jahangir Khan and Saeed l(han brought by constable Nusrat Ali No. i08 andfoundfollowings:

Mark olligature on neck and dissection, etc. Nil.

Condition of the subiect: Stout, clothed. No PM Rigor & lividity developed.

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t. One FAI entry wound on t/t x t/t on frontol bone laterally on right side.

2.One FAI exit wound % x % on lefi ear.

3.One FAI entry wound % x % on lefi side head in temporal bone.

4.One FAI exit wound I/z x % on right tetnporal mandibalar joint.

5.One FAI entry wound t/t x t/t in medial side of anterio medial thigh.

6.One FAI exit wound % x t/z on postero lateral aspect of lelt thigh.

7.One FAI entry % x % in parietal bone.

8.One FAI exit wound % x r/z on occipital bone.

9.One graze wound in right orm (7 inch deltoid muscle).

Cranium and Soinal Cord: Scalp, Sfull injured, fractured bone temporal bone occipital bonefractured, membrane, brain injured.

Thorax Blood vessels injured at the site of injury; rest healthy.

Abdomen:

Healthy.

Muscles. bones & ioints: Injury to scalp, Skull, membranes, Brain, Paritieal bone, frontal bone, occipital bone ; mandible bone fractured, bain.

Remarhs:

In my opinion deceased died due tofire-arm iniuries that causes injury to brain, scalp and shill. The iniury brain cause bleeding that lead to hypovolemic shock and ultimately lead to death.

Probable timc between inium & death: within 30 minutes.

Probable time between death & PM: 40 minutes to 0l hour.

The PMreport Ex.PW 5fi consisting of 06 sheets including the pictorial are in my han*writing and correctly bears my stgnature. The inquest report and iniury sheet are also endorsed by me. I had handed over PM documents along with blood-stained Shalwar to the escorting constable afier the autopsy.

)A(.. The dead body was brought to the hospital at about 07:10 hours. The deceased died within j0 minutes afier injury. It is incorrect to suggest that time between iniury and deathwould be more than 30 minutes. The rigor mortis was not fully developed at the time of autopsy. It is incorrect to suggest that the rigor mortis was fully developed. The time between death and PM would be 40 minutes to 0l hour. It is incorrect to suggest that I hne given factious timing in my report. The sizes of iniuries which I mentioned in PM is actual one and not the approximate. The deceased died due to tnjury to the brain and shil. No foreign body was found at the time for PM examination. No charring marks were found. All the { injuries may be from one weapon. It is incorrect to suggest that I am concealing the actualfacts."

6, In this case, the alleged occurrence hasi taken place on 04.10.2022 at about 06:15 a.m (early in the morning) and the matter was reported to the local police at the civil hospital Bannu at 07:10 a.m. We are conscious of the fact that in this part of the country the sun rises at 06:13 a.m (on 04.10.2022).

There is no cavil to the fact that the deceased Farman Khan son of Khair-Uz-Zaman was a watchman in the petrol pump as recorded by the complainant in his statement recorded before the trial court as PW-7, but in this case as we have earlier stated that the prosecution is to prove its case beyond shadow of

doubt. The first thing, which too is a cardinal rule of criminal law, that the prosecution is to prove its case meaning to establish the presence of the eye-witness at the alleged time of incident. We have also gone through the entire record with the able assistance of both the parties. We have noticed in the inquest report Ex.PW-4/3 wherein its column No.3, the time of death of the deceased as recorded from the mouth of complainant examined as PW-7, is 06:45 a'm, while the time of occurrence is 06:15 a.m.

7.No coming to the murasila-cum-FlR wherein it has been stated by the complainant in his report that when they reached near the Kacha Rasta in the fields of Rasool Khan it was 06:15 &.r, in the meanwhile, accused/appellant Inamullah s/o Samiullah armed with Kalashnikov and Samiullah Vo Malil who was empty handed came and at the command of Samiullah (acquitted co-accused), Inamullah /appellant started firing with his Kalashnikov at them with intention to commit thefu Qatl-e- Amd, as a result of the firing his deceased brother was hit and severely injured while he luckily escaped unhurt. When He came towards his brother, he succumbed to the injuries on the spot. Now if, at all the incident has taken place at 06:15 a'm, and according to the inquest report, the time of death is 06:45

a.m, now as has stated by the complainant in his murasila report that after the receip of fire-a::n injuries, the deceased died at the spot than if at all, he the deceased has succumbed to the injuries within 05 minutes, as has stated by the complainant " h..1+ ot"ry ri r-Jtr;f or,.rlt €yOu+ while on the other hand as per the information collected from the complainant by the police, Muhammad Noor Khan (PW-4) who drafted the murasila and prepared inquest report, according to him, the time of death of the deceased is 06:45 a.m which suggest that the incident was not witnessed by anyone including the complainant (PW-7).

8.The second question which rises before the court is that it is in the evidence of PW-7 and confirmed from the statement of I.O (PW-S) that while going from the spot to the hospital, PS, Mira Khel falls on the way. If it was the case that the deceased succumbed to the injuries on the spot then there was no need to have taken his dead body to the hospital rather it was supposed to have been shifted to the PS directly and the report should have been recorded there in the PS, which is not the case of prosecution as the report has been recorded in the civil hospital Bannu, which is suggestive of ttre fact that the dead body was

brought to the hospitat by the co-villagers and thereafter, the attendance of complainant Jehangir Khan the brother of deceased was procured and his report was recorded.

9.Another question before the court is that in this case, it is in the murasila-cum-FlR that they were going to their house through the Kacha Rasta tn the fields of Rasool Khan, meanwhile, the appellant along with his father emerged, we have noticed the site-plan, according to which the deceased was going ahead and leading towards Northem side from the Southem side while the appellant and acquitted co-accused Samiullah have been shown to the left side then in that case almost all the fire-arm entry wounds on tlre person of the deceased must have been on the left side, while we have observed from the PM report there is One FAI entry wound on Y+xYq on frontal bone laterally on right side, while another FAI entry wound Yq x Y+ on left side head in temporal bone, the 3d FAI entry wound %x% n medial side of anterio medial thigh, while another FAI entry YrxYqinparietal bone. However, the doctor has also found one graze wound in right arm (7 inch deltoid muscle), which has not been explained by the complainant as the same is not a FA graze wound, if it was so than the complainant was not suppose to have explain the same

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and if at all the same is other than a fire-arm grme wound than for that matter the complainant has to show the receipt of this wound as to how it was caused to the deceased. This is another aspect of the case which adversely effects the presence of the complainant on the spot at the relevant time of event.

10.Another vital aspect of the case is the presence of complainant at the alleged time of incident, he has stated in his report that " LxJt Jx'i/gu,0gtl4,Jr,ie& $)put-vit/t!' Now in his cross-examination he improved his statement that he parked his tractor in the pekol pump and started with his deceased brother towards their home, if it was the case then at least the owner of the pump or any other servant should have been examined in support of the fact that the complainant had parked his tractor on the morning of the occwrence in the said petol pump which fact has not been supported or investigated by the investigating officer (PW-8). There must be some physical circumstances regarding presence of the complainant at the time of incident with the deceased, but no independent corroborative piece of evidence has been collected in this respect by the investigating officer, which was his foremost duty. Even, other-wise, the complainant in his examination-in-chief as well as in his cross-examination has not explained as to for what purpose he has taken the fractor over the entire night for ploughing

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or taking some Bairi or any other item etc by using the tractor trolley, but that is not the case ofprosecution.

11.It has been admitted bY the (PW-7) that the distance between the spot and the house of deceased is 2/3 fields, but on perusal of the site-plan, nowhere has been shown the house of the complainant. If, it was the case of the prosecution that the house of the deceased is situated at the nearby place of the incident than this should have been explained firstly that as to what early in the moming the deceased was doing in the fields of Rasool Khan as the same fact has not been proved that in fact he was a watchman in the petrol pump. Secondly, if at alt he was watchman in the petrol pump and was coming behind the house of the appellant in the fields of Rasool Khan than how the appellant came to know that Farman Khan s/o Y:hair-ru-Zaman is coming behind his house in the fields of Rasool Khan which suggest that the occwrence has not taken place in the mode and manner as narrated by the 12, Another intriguing aspect regarding non-presence ofthe complainant is that it has been admitted in the cross- examination of the complainant that when he came after his brother after receipt of fire-arm injuries, he has succumbed to

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the injuries there and then and he took his brother in his lap and his hands and his clothes were besmeared with the blood of the deceased, if it was so the case, than as has been admitted by the investigating officer that he has not taken into possession the blood stained garment of the complainant into possession which could have easily proved the presence of the complainant at the time of occurrence with the deceased brother. Mere this fact that the deceased has received almost all the enty wounds of tlre same dimension coupled with the FSL report of the 06 empties to have been fired from one and the same weapon, this is not sufficient to prove the presence of the complainant. The complainant himself has to prove his presence at the spot through some physical circumstance. We have also observed that the deceased was aged about 34135 years while the complainant is aged about42143 years old as is evident from his statement when examined as PW-7 before the court. This is not out tradition that a brother ofyounger age will go ahead from his elder brother. We have also observed that the murasila and the inquest report was recorded by one and the same police offrcer, but another fact creating a serious doubt regarding detail of the injuries recorded in the inquest report which has been recorded with some other ink which suggest that the

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inquest report was not prepared by the one and the same police offrcer and other-wise, reflects that the has concealed certain real facts from court. We have also observed from the site-plan that the deceased has been shown at Point No.l while the complainant at Point No.2 and appellant at Point No.3 and the acquitted co-accused at Point No'4' This is the case ofprosecution that ifboth were fired at by the accused as a result of which the deceased Farman Khan was hit while complainant luckily escaped unhurt which fact is not supporting by the Ex.PW-812, i.e, site-plan, as the distance between Point No.l and 2 is hardly 5/6 paces, it means that the was also in the firing range of the appellant and he was at the mercy of the appellant at the relevant time and there was no place for him to have taken shelter, thus, it reflect that the complainant if at all would have been present he would have never been spared by the assailant, as he was elder brother of the deceased.

13.We have also thoroughly readout the statements of complainant (PW-7) and investigating Officer (PW-8), it is in the murasila report that "eg3 s1J t+.4 a5.l.l # P "S u We have observed today, that in the site-plan, the deceased and the complainant were not shown going sn ths "&b €S"rather they

were going in the vacant fields of Rasool Khan which totally negate the story of prosecution, thus, by going through the overall record, we have reached to the conclusion that the presence of the complainant has not been established beyond any shadow ofdoubt.

14.The cumulative effect of what has been stated above, leads this Court to hold that the occurence was not wifiressed by the PW-7, reliance in this respect is placed on the case "Mst.

Saddan Bibi v. Muhammad Amir and others" reported as 2005 SCMR ll2S,wherein it was held that:- "5. Simtlarly 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 ofoccurrence but the respondents never attempted to cause any harm to him. Such an alleged conduct of the respondents does not inspire confidence and it was; therefore, rightly held by the High Court that the presence of Shah Nau,az P.W. at the place of occunence at the relevant time was also open to serious doubts. "

15.Similarly, in another case "Muhammad Ali v. The State" (2015 SCMR 137), it was held:-

"5. According to the prosecution the F.I.R. has been registered on 10-30 a.m. on the same day "for the incident which has tal@n 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 an 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 gdve a hatchet blow on the head of the deceased from the sharp side whereas the said iniury was declared by the doctor as caused by a blunt weapon. The medical evidence also does not suryort the ocular account qua the number of injuries as according to the Doctor P.W.6 the deceased had received as many as 8 injuries. Injuries Nos. 6 and 8 were tncised wounds, iniuries Nos. 1, 2 and 7 were caused by blunt weapon while injuries Nos. J, 4 and 5 were caused by firearms. Only one tnjury on thigh has been attributed to the appellant. The doctor has also found blaclcening on the injuries which ,neans that the injuries could have been caused from a distance ofthree feet or less. But according to site plan, the distance between the assailants and the deceased was about 2 lrarams 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. "

16.The above view of un-witressed occulrence was also held by the august Supreme Court in another case Ali Sher and others v. The State (2003 SCMR 707), the relevant portion is reproduced as under:-

"17. Tlre two eye-witnesses not being independent and natural witnesses of the occurT ence; infirmities having been found in the prosecution case and doubts hoving crept into the prosecutionverston oftlu occurrence; the possibility of occurrence having gone tm-witnessed otd no independent corroboration being woilable in support of the oculm testimony, it cannot be soid that the prosecution had succeeded in proving the guilt of the two convicts beyond all reasonable doubts."

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17.In the light of above referred circumstances, we find that the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. The impugned judgment is suffering from inherent defect which calls for interference. Therefore, the instant criminal appeal is allowed and impugned judgment of conviction and sentence dated t0.07.2024 passed by the learned Additional Sessions Judge-II, Bannu, is hereby set-aside. Consequently the appellant/convict namely-Inamullah is acquitted of the charges leveled against him in the case vide FIR No 788 dated 04.10.2022 registered U/Ss.

302/324/34 PPC, P.S, Mira Khel, District Bannu. The appellant being in custody, be set at liberty, if not required to be detained in any other case.

18.As we have allowed the instant appeal, therefore, the Murder Reference sent by the trial court is hereby answered in negative.

lg. The above are the detailed reasons of the short order of the even date.

Announced -Sd- Judge Dt:06.05.2025 *Imranullah*PS -Sd- JUDGE Judge

pfr

JUDGE

@.B) Hon'ble Mr. Justice Muhammad Tariq Afridi & Ilon'ble Mr. Justice Abdul Fayaz 1 'l t t.