Shafqat Ullah Vs The State

Judgment Sheet

PESHAWAR HIGH COURT, BANNU BENCH

(Judicial Department)

Cr. A No.223-B of 2019

Shafqatullah Vs.

The State.

JUDGMENT

For appellant: Muhammad Anwar Khan Maidad Khel, Advocate.

For State: Muhammad Asghar Khan Ahmadzai, Addl: A.G.

For Respondent: Nemo (motion case).

Date of hearing: 13.03.2025

ABDUL FAYAZ, J.- The subject single judgment shall dispose of the instant criminal appeal coupled with Cr.A No. 413-B/2019 (State vs Kaleemullah) as both the appeals find their origin in Sessions trial No.25/2019, in respect of the trials, outcome of one and the same incident, registered vide F.I.R No. 64 dated 24.02.2015 u/s 302/324 P.P.C, Police Station, Tajori Lakki Marwat.

2.Appellant, the then complainant Shafqatullah, has called in question the acquittal of the accused/respondent Kalimullah alias Papu vide judgment dated 16.07.2019, as well as of state against the above named accused/respondent vide the said judgment, rendered by the then learned Additional Sessions Judge-III/MCTC, Lakki Marwat, whereby, the respondent/accused namely, Kalimullah was acquitted of the charge leveled against him in the ibid FIR.

3.Facts in small compass so reflected in the F.I.R are that on the fateful day (24.02.2015) at 09:30 hours, the complainant, (Sher Qadullah steno) (D.B) Hon’ble Mr. Justice Muhammad Tariq Afridi and Hon’ble Mr. Justice Abdul Fayaz

Shafqatullah brought the dead body of his brother Inamullah to the Civil Hospital Naurang and reported the event in terms that today he, his brother Inamullah and his minor nephew Hafizullah were going to Civil Hospital Naurang for medical checkup of minor Hafizullah on motorcycle, driven by his brother Inamullah. When they reached near village Rozi Khan it was about 07:20 hours where their co-villager Kalimullah alias Papu was present armed with 12 bore. That when they reached near the accused, he started firing at them with intention to commit their Qatl-e-Amd. As a result of firing his brother namely Inamullah got hit and they all fell on the ground from motorcycle.

That complainant took the minor in his lap and being empty handed ranaway from the spot to save their lives and escaped unhurt. The accused Kalimullah after the commission of offence decamped from the spot. That he then shifted the injured to a private hospital Naurang from where the injured was referred to KGN Hospital Bannu. That they were on the way to Bannu that injured succumbed to the injuries and he got back the dead body to Civil Hospital Naurang where he came to know that two other passerby Abdul Aziz and minor Farhadza Bibi also sustained injuries due to the firing of accused.

Motive behind the occurrence was previous blood feud between the parties. Thus, the ibid FIR was registered against the accused.

4.After completion of investigation, complete challan u/s 512 Cr.PC was submitted, however, in the meanwhile accused was arrested and after completion of investigation and interrogation, supplementary challan against the accused was submitted.

(Sher Qadullah steno) (D.B) Hon’ble Mr. Justice Muhammad Tariq Afridi and Hon’ble Mr. Justice Abdul Fayaz

5.The learned trial court confronted the accused Kalimullah with the allegations against him through charge sheet, whereof, the accused/respondent denied the allegations against him and pleaded not guilty.

6.The learned trial court after recording the prosecution’s evidence consists of the statements of 11 witnesses, confronted the accused under section 342 Cr.P.C with the set of allegations and the evidence so recorded against him, wherein the accused denied the allegations and professed innocence, however, he does not wished to be examined on oath but he wanted to produce defense provided under section 340 (2) Cr.P.C and in support of his stance accused produced DWs Ghulam Raza constable and Zahid Khan IHC and recorded their statements as DW-1 & DW-2 respectively.

7.The learned trial court after hearing arguments of the learned counsel for the parties and learned prosecutor coupled with scanning of evidence with their due assistance, arrived at the conclusion that the accused/respondent was not guilty, as such vide impugned judgment dated 16.07.2019 recorded his acquittal, hence, the instant appeal against the judgment of acquittal.

8.Learned defense counsel and learned learned A.A.G for the State assisted by the learned counsel for the complainant, heard at length and with their valuable assistance, the record has been gone through.

9.Close perusal of the record would transpire that the prosecution could not be able to substantiate presence of the (Sher Qadullah steno) (D.B) Hon’ble Mr. Justice Muhammad Tariq Afridi and Hon’ble Mr. Justice Abdul Fayaz

complainant on the spot in view of the non-collection of the circumstantial evidence. The statement of complainant Shafqatullah (PW-9) has got much importance in the instant case being the real brother of the deceased and a sole eye-witness of the occurrence produced by the prosecution. He alleged that he alongwith his deceased brother and minor nephew were on motorcycle when the accused started firing by 12 repeater but the story is totally unbelievable because that the complainant party consisting three persons were on one and the same motorcycle, however, from the firing of 12 bore repeater how the complainant and the minor escaped unhurt as they did not receive a fire shot even a single scratch when they fell down from the motorcycle.

10.As per report and statement of complainant (PW-9) when he brought back his deceased brother to Naurang Hospital he came to know that with the firing of accused two other persons namely Abdul Aziz and Farhada Bibi (minor) also got injured, but interestingly he did not notice those injured at the time of incident and the reason was obvious that he was not present where at the time of occurrence.

11.In his report as well as his statement the time of occurrence has been mentioned as 07:20 AM while the injured Abdul Aziz and father of minor injured Farhada Bibi mentioned the time of firing/occurrence as 08:20 AM. Moreover as per the site plan and statement of PW-9 as well, the occurrence took place at metal road from where blood was secured alongwith cotton but as per the statement of medical officer (PW-1) clothes of deceased was smeared (Sher Qadullah steno) (D.B) Hon’ble Mr. Justice Muhammad Tariq Afridi and Hon’ble Mr. Justice Abdul Fayaz

with mud and dust, hence this contraction in the above two statement and site plan negates the presence of complainant (PW-9) on the spot.

So the presence of complainant at the spot being eyewitness of the occurrence is not true being a planted witness.

12.It is important to note that in the instant occurrence two other persons have also sustained injuries but neither they charge the accused for the commission of offence nor they made witnesses in the instant case to support the stance of the complainant. As per version of complainant, he and his minor nephew were seated in the rear seat of the motorcycle and at the time of firing they fell down from the motorcycle but in the site plan no subsequent places of complainant and minor were shown and the minor was altogether disappeared from the scene and his whereabouts were not described. Hence the case of the prosecution is full of contradiction and dishonest improvements, as such, neither he can be termed as reliable witnesses nor the same could be made basis for conviction particularly in case the offence carries capital punishment because it is well settled by now that when a witness improves his statement and the moment it is observed that the said improvements were made dishonestly to strengthen the prosecution case, such portion of the statement is to be discarded out of consideration. Muhammad Arif V. The State (2019 SCMR 631).

"----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Improvement made by witness in his previous statement---Effect---When a witness improved his statement dishonestly to strengthen the prosecution case, such portion of his statement was to be discarded---Testimony of such witness could not be safely relied upon to maintain conviction and sentence of an accused on a capital charge. [p. 636] " (Sher Qadullah steno) (D.B) Hon’ble Mr. Justice Muhammad Tariq Afridi and Hon’ble Mr. Justice Abdul Fayaz

13.True that recoveries were made by the investigating agency during spot inspection but equally true that he failed to recover the weapon of offence so as to prove this fact through alleged recoveries, as such, this is also negates the version of prosecution.

14.Like wise, the alleged motive as blood feud against the accused is no way attributed to the deceased alone rather to the entire family and on this score alone it is unbelievable that accused caused fire-arm injuries to the deceased while complainant and minor nephew co-seated with the deceased on one motorcycle escaped unhurt at the relevant time, conscious enough to have deposed against him in the changed circumstances, have been spared. The subject circumstance prima-facie supports the contention of the defense and presence of the PWs at the relevant time at the place of occurrence is tainted with reasonable doubt.

15.After scanning the entire record, the Court is of the considered view that the evidence of complainant being eye witness is not plausible, improbable, unreasonable and there are inherent defects in their evidence, therefore, the case does not fall within any exception where the statements of interested witness can be accepted without any corroboration which is also lacking in the instant case.

Rohtas Khan V The State (2010 SCMR 566).

"----S. 302(b)/34---Qatl-i-amd---Appreciation of evidence---Interested witness---Corroboration---Rule of corroboration in case of interested witnesses is not an inflexible rule---Such rule can be dispensed with in appropriate cases---In order to bring the case out of the scope of general rule` the evidence. of an interested witness is to be scrutinized very carefully---Firstly truthfulness of such (Sher Qadullah steno) (D.B) Hon’ble Mr. Justice Muhammad Tariq Afridi and Hon’ble Mr. Justice Abdul Fayaz

witness is to be tested on the touchstone of the inherit merit of his statement, and secondly, if his statement is found reasonable, probable or plausible, and reliable then the same can be accepted and relied upon without corroboration, even if he is a worst enemy of the, accused."

16.The court is conscious of the abscondence of accused/respondent namely, Kalimullah, no doubt it is a relevant fact but it can be used as a corroborative piece of evidence, which cannot be considered in isolation but it has to be read along with substantive piece of evidence, as the Hon'ble Supreme Court of Pakistan in the case of Asadullah V. Muhamad Ali (PLD 1971 SC 541) observed that both corroborative and ocular evidence are to be read together and not in isolation. In the case of Rasool Muhamad V. Asal Muhammad ( 1995 SCMR 1373) the Hon'ble Supreme Court observed that abscondence is only a suspicion circumstance while in the case of Muhammad Sadiq V. Najeeb Ali (1995 SCMR 1632), has observed that abscondence itself has no value in the absence of any other evidence.

17.Keeping in view the material contradictions in the statements of the witnesses and dishonest improvements on their part leads the Court to an inevitable conclusion that the occurrence has not taken place in the mode and manner so alleged and the evidence so furnished contradict not only the mode and manner of the occurrence but also makes doubtful the very presence of the PWs on the spot at the time of occurrence, as such the prosecution could not succeed in bringing home guilt against the accused/respondents.

(Sher Qadullah steno) (D.B) Hon’ble Mr. Justice Muhammad Tariq Afridi and Hon’ble Mr. Justice Abdul Fayaz

18.There is no cavil to the proposition that parameters provided for appeal against acquittal are totally different from that of conviction, as once an accused is acquitted of the charges by the Court of competent jurisdiction then presumption of double innocence is credited to his account and to upset the findings of the trial court extra ordinary circumstances are needed.

19.The cumulative effect of what has been stated above, leads this Court nowhere but to hold that the appellant could not succeed to invite the attention of this Court to set-aside the impugned acquittal orders, as the impugned judgments in both the appeals against acquittal being well reasoned, based on proper appreciation of evidence and this Court see no perversity and illegality in the impugned judgments of the learned trial court, as such feel no hesitation to refuse interference that too when accused have attained double presumption of innocence in their favour. This Court is also conscious of the fact that to upset an order of acquittal extra ordinary circumstances are the requirement of law on the subject which in the case in hand is lacking, resultantly, the instant criminal appeal as well as the connected Cr.A No. 413-B/2019 (State Vs Kaleemullah) stands dismissed.

Announced 13.03.2025. -Sd- *Sher Qadullah steno*

JUDGE

-Sd-

JUDGE

(Sher Qadullah steno) (D.B) Hon’ble Mr. Justice Muhammad Tariq Afridi and Hon’ble Mr. Justice Abdul Fayaz