Muhammad Abbas Vs Abdul Qayyum etc

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Criminal Appeal No. 1213-P/2023.

Muhammad Abbas Vs Abdul Qayyum etc.

JUDGMENT

Date of hearing: 07.10.2025.

Appellant by: Mr. Kamran Hussain, Advocate.

The State by: Mr. Abdur Rauf Afridi, AAG.

Respondent by: Mst. Zahida, widow of the deceased in person.

SAHIBZADA ASADULLAH, J.- Appellant, Muhammad Abbas, tried by learned Additional Sessions Judge/Judge, MCTC, Mardan, in case FIR No. 774, dated 07.07.2019, registered under section 302 PPC, Police Station, Saddar, district Mardan, and through the impugned judgment dated 26.06.2023, he was convicted under section 302 (b) PPC, and sentenced to imprisonment for life as Ta’zir with fine of Rs.

5,00,000/- (rupees five hundred thousand), payable to the legal heirs of the deceased as compensation under section 544-A Cr.PC. In

default whereof, to further undergo six (06) months SI. Benefit of section 382-B Cr. PC was extended to the appellant.

2.As per the contents of the FIR, the unfortunate incident occurred on 07.07.2019 at about 03:25 a.m. According to the complainant, Abdul Qayum, father of the deceased, he, alongwith other family members, was asleep in the veranda of his house, while his son, Zahir Khan (the deceased), was resting inside his room with his family. At about that time, the complainant awoke for the preparation of the Fajar prayer. Meanwhile, his grandson, Abbas Khan (the appellant/accused), who was armed with a 30-bore pistol, entered the room of Zahir Khan. The complainant also followed him inside. Without any provocation, the accused Abbas Khan opened fire on Zahir Khan with the intent to kill him, causing multiple firearm injuries to his head and left arm. Due to the severity of the injuries, Zahir Khan succumbed to them while being shifted to MMC Hospital, Mardan. Immediately after the occurrence, the accused managed to escape from the scene. It was further alleged that the accused was of unsound mental condition at the time of the incident. The occurrence was witnessed by other family members present in the house. The

complainant’s statement was reduced into writing in the form of murasila (Ex. PA/1) by Sher Ali, SI (PW-02), on the basis of which the formal FIR was registered against the accused.

3.On conclusion of the investigation, challan was submitted before the learned trial Court, where the appellant/accused was summoned, and in compliance with the provisions of section 265-C Cr. PC, relevant copies of the record were delivered to him.

Thereafter, he was formally charge-sheeted, to which he pleaded not guilty and claimed trial.

The prosecution, to prove the guilt of the appellant/accused, produced and examined as many as Eleven (11) witnesses. Whereafter, the statement of the appellant/accused was recorded under section 342 Cr. PC, wherein he professed innocence; however, neither opted to produce defence evidence nor to be examined u/s 340(2) Cr.PC. On conclusion of the trial, vide impugned judgment dated 26.06.2023, the learned trial Court convicted the appellant, and sentenced him to suffer life imprisonment.

Hence, the instant appeal.

4.The complainant/respondent No.1 had passed away, and today LRs of the deceased/complainant appeared before the Court and apprised that they are unable to

engage counsel, and that the learned Addl. AG will argue the case on their behalf, so the arguments of the learned counsel for the appellant and that of the learned Addl. AG were heard and the available record gone through.

5.What an unfortunate and grievous occurrence this was, which claimed the precious life of the deceased. The dead body was forthwith shifted to the hospital, where the matter was reported to the Police. The injury sheet and inquest report were prepared and thereafter the dead body was dispatched for post-mortem examination. Upon receipt of a copy of the First Information Report, the Investigating Officer visited the place of occurrence in the company of the complainant and prepared the site plan. During spot inspection, he collected blood-stained earth from the point where the deceased had fallen, alongwith one empty of .30-bore, however, the weapon of offence could not be recovered at that initial stage. Subsequently, a .30-bore pistol was recovered from the possession of the accused, in respect of which a separate FIR was registered. The said pistol was also taken into possession in the present case by the Investigating Officer and, alongwith the recovered empty, sent to the Firearms Expert,

whose report was received in positive. During investigation, the accused opted to confess his guilt and was produced before the Court of competent jurisdiction, where his confessional statement was recorded. The accused was then sent up for trial and, upon conclusion of the trial, was convicted and sentenced to rigorous imprisonment for life vide the impugned judgment.

6.The learned trial Court, after applying its judicial mind to the material available on record, took into consideration all essential aspects of the case and found the appellant responsible for the commission of the offence.

This Court is now called upon to examine whether the approach adopted by the learned trial Court was in accordance with law and whether the evidence on record was properly appreciated. It is a settled principle that the presence of a single accused does not absolve the prosecution of its duty to prove the case beyond reasonable doubt, nor does it entitle the learned trial Court to relax the standard of appreciation of evidence. On the contrary, in cases involving a solitary accused, a greater responsibility rests upon both the prosecution and the trial Court to carefully scrutinize the evidence and ensure that the accused before

the Court is indeed the actual perpetrator of the offence. True that substitution in cases involving a single accused is a rare phenomenon, yet, keeping in view the peculiar circumstances in which this unfortunate incident occurred and the inter-se relationship between the parties, this Court deems it appropriate to re-evaluate and re-appreciate the evidence available on record to ensure that the ends of justice are duly met.

7.The points for determination before this Court are as to whether the incident occurred in the mode, manner and at the stated time; as to whether the complainant and the eyewitnesses were present at the spot; whether the matter was promptly reported by the complainant; whether the medical evidence supports the prosecution version; whether the confessional statement of the accused was true and voluntary and whether the prosecution succeeded in proving the guilt of the appellant beyond reasonable doubt.

8.In order to properly appreciate the attending circumstances of the present case and to ascertain the manner in which this unfortunate incident occurred, we deem it essential to examine the statements of the witnesses. It is pertinent to mention that the

complainant could not be examined during trial as he had passed away. In his stead, another witness was produced, namely Abdus Salam, who verified the report of the complainant and affirmed its contents, being the verifier thereof.

The only ocular witness who appeared before the Court is PW-08, the widow of the deceased, hence, this Court considers it necessary to evaluate whether this witness has been able to establish her presence at the spot at the relevant time, and whether her testimony credibly confirms that the incident occurred in the manner alleged by the prosecution. The said witness narrated in detail the circumstances in which the tragic occurrence took place and described the manner in which the deceased was fired upon. According to her statement, the accused entered the room, fired at her husband, and thereafter fled from the scene.

She was subjected to cross-examination on all material aspects of the case, evidently with an effort to extract favorable answers for the defence. It, therefore, falls upon this Court to determine whether the defence succeeded in creating any reasonable doubt in the case of the prosecution. The witness explained how she awoke during the night, how she saw the accused firing at the deceased, and how she

heard the gunshot. She further narrated the circumstances in which the accused immediately absconded from the house after the occurrence. The prosecution evidence establishes that the deceased lost his life inside a house jointly owned by the accused, the deceased, and the complainant. As the incident occurred during the odd hours of the night, so the presence of the witnesses in the house appears both natural and probable, and nothing has been brought on record by the defence to suggest that the complainant or the eye witness was not present in the house on the relevant night. When the widow of the deceased herself stands as an eyewitness to the occurrence, the defence could not successfully challenge her presence in the house nor bring any material to show that the deceased did not meet his death therein. Once it has been established from the record that the house was jointly owned and that the deceased lost his life inside it, nothing remains for this Court to exclude the presence of the eyewitness at the place of occurrence at the relevant time. The circumstances further suggest that the complainant was sleeping in the courtyard at the time of the incident, which appears natural since the occurrence took place in the month of

July, a period when people commonly sleep in open spaces owing to the hot weather. The recovery of blood from the room lends assurance to the prosecution version.

9.The site plan was prepared in the presence and on the pointation of the witnesses. During spot inspection, the Investigating Officer took into possession one empty of .30-bore and also collected blood- stained earth from the place where the deceased had fallen. These recoveries from the spot confirm that the incident occurred inside the house. The Investigating Officer, examined as PW-10, deposed that after receiving copy of the FIR, he proceeded to the place of occurrence and, in the presence of witnesses, prepared the site plan. In corroboration of the recoveries effected from the spot, the marginal witness was also examined, who supported the statement of the Investigating Officer and explained the manner in which the site plan was prepared. The witnesses were thoroughly cross-examined in an attempt to discredit their testimony and undermine the prosecution story, but despite strenuous efforts, the defence could not succeed in creating any reasonable doubt. It is further pertinent to mention that upon the arrest of the accused, the weapon of

offence, a .30-bore pistol, was recovered from his personal possession. The same was sent to the Firearms Expert alongwith the empty recovered from the spot. The expert report was received in positive which confirmed that the recovered empty had been fired from the recovered weapon. The Investigating Officer further stated that during investigation, the accused voluntarily opted to confess his guilt and was produced before the Court of competent jurisdiction, where his confessional statement was recorded in accordance with law.

When these pieces of evidence are considered together, no ambiguity remains regarding the circumstances in which the unfortunate incident took place. The witnesses consistently explained those circumstances, and no malafide motive was established against them. This Court finds no reason to disbelieve their testimony, particularly when the complainant is the real grandfather of the accused. It is highly improbable that a grandfather would falsely implicate his own grandson in place of the real culprit. Though the witnesses are closely related to the deceased, but they are equally related to the accused, who, on one hand, was the nephew of the deceased, and on the other, the grandson of the complainant, so false

implication appears to be wholly unnatural and against normal human conduct. In light of the judgment reported as 2023 SCMR 1568 titled “Maskeen Ullah and another vs The State and another”, the Hon’ble Supreme Court held that when prosecution witnesses are closely related to the victim, their testimony cannot be discarded merely on account of their relationship, unless there is evidence of enmity or motive to falsely implicate the accused. The Court emphasized that in the absence of any such suggestion, the statements of related witnesses should be treated as credible and trustworthy, especially when their evidence appears consistent, confidence-inspiring, and corroborated by the circumstances of the case.

In this case, both the trial and appellate courts had already found the witnesses truthful and reliable, and upon independent evaluation, the Supreme Court affirmed those findings, holding that there was no reason to doubt their veracity or interfere with the concurrent conclusions of the lower courts.

10.The record further reveals that the matter was reported promptly. The dead body was immediately shifted to the hospital after the incident. The sequence of events, from the firing to the shifting of the deceased and the lodging

of the report, occurred in such quick succession that there was no time or occasion for deliberation or fabrication of a false story against the appellant. The identifiers and the verifier of the report also appeared before the Court. They were examined and confirmed that the report was prepared in their presence.

When the place of occurrence is not in dispute, when the incriminating recoveries were effected from inside the same house, and when the weapon of offence and the recovered empty were found to have a ballistic match, nothing remains to doubt the prosecution version or to hold that the accused was not responsible for the commission of the offence. It is true that the witnesses are closely related to the deceased, however, it is equally true that they bear the same relationship to the appellant. Under no circumstances would a real grandfather falsely implicate his real grandson in place of the actual offender, nor has the defence been able to show any mala fide or animosity motivating such false accusation. When the statements of the witnesses inspire confidence, when the eyewitness has substantially established her presence at the place of occurrence at the relevant time, and when the defence has failed to create any dent in the case of the

prosecution, no ambiguity remains that it was the appellant who committed the murder of the deceased. As it stands admitted that the house was jointly owned and occupied by the accused, the deceased, and the complainant, so the presence of the witnesses at the place of occurrence during the relevant night is nothing but natural. The manner in which the unfortunate incident was explained by the eyewitness appeals to reason and accords with the probabilities of the case. The deceased and his family were sleeping in the room, and the eyewitness awoke upon hearing the gunshot and saw the accused holding a pistol in his hand. In these circumstances, nothing remains for this Court to take a contrary view. When the witnesses have confirmed that the incident occurred in the stated manner, and when the eyewitness has satisfactorily established her presence at the scene, her testimony, though that of a related witness, cannot be discarded merely on the ground of relationship, particularly when it is found consistent, confidence-inspiring, and supported by corroborative evidence on record.

11.The appellant, soon after his arrest, was produced before the Court of competent jurisdiction, where his physical remand was

duly sought and accordingly granted. During the course of investigation, he led the police party to various places of relevance and pointed out the spots connected with the occurrence. It was also during investigation that the appellant voluntarily opted to confess his guilt, whereupon he was produced before the learned Judicial Magistrate for the purpose of recording his confessional statement. The learned Judicial Magistrate, examined as PW-7, who deposed that the accused was brought before him by the Police, and that, prior to recording his statement, he was afforded sufficient time to compose himself and to reflect upon his decision. The Magistrate further affirmed that he had satisfied himself as to the voluntariness of the confession and, only thereafter, proceeded to record the same strictly in accordance with law. In order to ascertain whether the confessional statement was genuine, voluntary, and recorded in conformity with the principles laid down by the Superior Courts, we have meticulously examined the statement of the Judicial Magistrate as well as the questionnaire appended thereto. The record reveals that all requisite and relevant questions were put to the accused, and his answers clearly indicate that the legal formalities were

duly observed. Upon perusal of the confessional statement, it transpires that the appellant candidly narrated the circumstances leading to the commission of the offence and explained the motive underlying his act. The narration of events is detailed, coherent, and in complete consonance with the surrounding

circumstances of the case. The statement, by its very tenor, reflects that it was recorded voluntarily, without the slightest trace of coercion, inducement, or pressure. Despite lengthy cross-examination, nothing adverse could be elicited to suggest that the confession was obtained under duress or undue influence.

The confessional statement finds full corroboration from the ocular account and the other prosecution evidence on record and the laboratory report and recoveries further reinforce its authenticity, so the confession appears to be true, voluntary, and worthy of credence. It is a well-settled principle that, while as a general rule a conviction should not ordinarily rest solely upon a confession, there is equally no legal bar to basing a conviction on such confession alone if the Court is satisfied that it is true and voluntary. In the present case, not only does a valid judicial confession exist, but it also stands corroborated by the

independent testimony of the eyewitness, whose presence at the place of occurrence has been firmly established. When the evidence is examined in juxtaposition, no ambiguity remains that the confessional statement is duly supported by the ocular account as well as by the other material evidence on record. The defence has failed to demonstrate that the confession was fabricated or that the occurrence took place otherwise than as narrated therein. In these circumstances, this Court finds that the confessional statement of the appellant was rightly taken into consideration by the learned trial Court, and the reliance placed upon it was both lawful and justified. In light of the judgment reported as PLD 2008 Supreme Court 115 titled “Muhammad Talha Hussain alias Noman and another vs The State”, the Hon’ble Supreme Court held that when an accused person voluntarily and truthfully confesses to committing an offence and even explains the motive behind it, such confession carries strong evidentiary value. The Court observed that merely because there was a delay of several days, in that case, 10 days, in recording the confessional statement does not, by itself, make the confession invalid or unreliable, especially

when the overall circumstances show that it was made without coercion, pressure, or inducement. Therefore, the Court concluded that a confession should not be rejected solely on the ground of delay if it appears voluntary, truthful, and consistent with the facts of the case.

12.It was further argued on behalf of the appellant that when he was produced before the learned trial Court, he had expressed mental disturbance, and that being so, the legality of his trial and conviction was open to question.

The contention was that the appellant, being allegedly of unsound mind, was not competent to comprehend the nature of the proceedings against him and therefore could not have been validly tried or convicted. In order to properly assess the mental capacity of the appellant, the learned trial Court, in its wisdom, constituted a Standing Medical Board comprising experts in the relevant field. The appellant was thoroughly examined by the said Board, and a detailed report was submitted to the Court. The report categorically confirmed that the appellant was not suffering from any mental ailment or psychological disorder that could render him incapable of understanding the nature of the proceedings or the consequences of his actions.

It was conclusively opined that he was in a fit state of mind and competent to face the trial. In support of the report, the relevant doctor was examined as CW-01, who affirmed on oath that the appellant had been medically examined, found mentally sound, and fully capable of comprehending and participating in the trial proceedings. In view of such clear medical findings, this Court is not inclined to accept the contention raised on behalf of the appellant regarding his alleged mental instability. The learned trial Court had duly fulfilled the procedural requirement by constituting a competent Medical Board, and the report so received conclusively established that the appellant was of sound mind and capable of standing trial. Furthermore, there is nothing on record to suggest that at the time of the occurrence, the appellant was suffering from any such mental disorder as could have prevented him from understanding the nature or consequences of his act. Even in his statement recorded under Section 342 Cr.P.C., the appellant did not assert that he was of unsound mind at the time of the incident or that he was unable to comprehend his actions.

When the appellant himself did not take such a plea at the relevant stage, he cannot now be

permitted to raise it at this stage. The record as a whole reflects that he was mentally stable both at the time of the occurrence and during the course of trial, and thus, no exception can be taken to the proceedings conducted by the learned trial Court on this score.

13.The medical evidence is found to be in complete harmony with the ocular account. The manner in which the firing was made and the injuries sustained by the deceased leave no ambiguity that he was fired upon in the manner and at the time alleged. This conclusion is further reinforced by the recovery of blood from the spot where the deceased had fallen. On one hand, the ocular account appears consistent, and the witness has successfully established her presence at the place of occurrence, whereas on the other, the medical evidence fully corroborates the stance of the complainant. The harmony between these two sets of evidence thus confirms the involvement of the appellant in the tragic incident. In light of the judgment reported as 2023 SCMR 831 “Aqil vs The State”, the Hon’ble Supreme Court reaffirmed the principle that when the ocular (eyewitness) evidence is trustworthy and confidence- inspiring, it holds superior evidentiary value and can by itself sustain conviction, even if

there are minor inconsistencies with medical evidence. The Court observed that in that case, the medical evidence fully supported the eyewitness account regarding the nature, time, location, and impact of injuries sustained by the deceased and injured persons, thereby strengthening the prosecution’s version. Thus, the Supreme Court held that credible ocular testimony prevails and is sufficient for conviction when it is found consistent and reliable, with medical evidence serving as a corroborative aid rather than a controlling factor. In light of the judgment reported as 2005 SCMR 272 “Iftikhar Ahmad vs The State”, the Hon’ble Supreme Court held that a plea of insanity or unsoundness of mind under Section 84, P.P.C. must be specifically raised and supported by evidence during trial. The Court observed that since the accused had not taken this plea in his statement under Section 342, Cr.P.C. and no defence evidence was produced to substantiate such a claim, the argument regarding his mental incapacity at the time of the offence was without any basis on record.

14.Another material piece of evidence in the present case was the recovery of the 30- bore pistol from the possession of the accused

at the time of his arrest. The said weapon, alongwith the empties secured from the place of occurrence, was forwarded to the Firearms Expert for examination. The report so received confirmed that the empties had indeed been fired from the recovered weapon. The learned Trial Court took this aspect into consideration, and while evaluating the totality of the evidence produced by the prosecution, also relied upon the said positive report while recording its findings, which ultimately went against the appellant. Now, the question which falls for determination before this Court is whether, once the accused stands acquitted in the case registered under Section 15 of the Arms Act, the same recovery can still be taken into consideration in the connected murder case, and what evidentiary value, if any, the report of the Firearms Expert would retain in such circumstances. In order to appreciate this aspect, it is necessary to recall the sequence of events. At the time of arrest, a 30-bore pistol was allegedly recovered from the possession of the accused. In consequence thereof, a separate case was registered under Section 15 AA. The challans in both matters were placed before the learned Judicial Magistrate, who, in exercise of powers under Section 190 Cr.P.C., transmitted

the murder case to the Court of Sessions for trial, while retaining the case under Section 15 AA within his own jurisdiction. The latter case proceeded to trial and, upon conclusion, the accused earned acquittal thereunder. The question, therefore, is whether, once the recovery has been disbelieved and the possession of the weapon excluded by a competent court, any reliance can still be placed upon the same for the purpose of convicting the accused in the main case. In our humble view, once the recovery stands disbelieved, little remains to sustain the allegation regarding the weapon. Nonetheless, this Court must assess whether, even with that piece of evidence excluded, the remaining prosecution evidence suffices to establish guilt.

As observed earlier, apart from the positive expert report, the prosecution produced an eyewitness and the confessional statement of the accused, both of which were found to be trustworthy and voluntary. Thus, even if the recovery is left out of consideration, the prosecution still succeeded in bringing home the charge against the appellant. Before parting with this aspect, it may be observed that situations of this nature frequently arise, where upon recovery of a weapon, a

separate case under Section 15 AA is registered, and both challans are submitted before the learned Judicial Magistrate. The case triable by the Court of Sessions is rightly transmitted under Section 190 Cr.P.C., yet the case under the Arms Act often remains with the Magistrate. In such circumstances, when it appears to the learned Judicial Magistrate that the recovered weapon is the very weapon of offence in the principal case, judicial propriety would demand that instead of proceeding with the trial under Section 15 AA, the matter be transmitted to the learned Trial Court seized of the main offence. Such a course would not only avoid conflicting findings, but would also enable the trial court, which has the complete picture before it, to properly assess the evidentiary value of the recovered weapon. Failure to adopt such a procedure, as is evident in the instant case, may result in procedural anomalies and evidentiary complications. We are, however, not placing any embargo upon the powers of the learned Judicial Magistrate, whose jurisdiction is statutory and well-defined; we merely observe that while taking cognizance of such matters, it would be desirable for the

learned Magistrate to apply his judicial mind to the surrounding circumstances and, where appropriate, transmit the matter to the competent trial court to ensure the smooth and coherent administration of justice.

15.As regards the motive, the

complainant and the accused have come forward with divergent versions, however, when the confessional statement of the appellant is taken into account, it furnishes a plausible explanation for what prompted him to commit the offence. The statement of the eyewitness regarding the motive, to some extent, lends support to the confession of the appellant. In these circumstances, this Court is inclined to hold that though the motive appears weak, it nonetheless exists on record. It was, indeed, this weakness of motive and the ambiguity surrounding it that persuaded the learned trial Court to award a lesser sentence instead of the normal penalty of death. There can be no cavil to the settled proposition that absence or weakness of motive alone cannot be a ground for acquittal rather, it may only be considered as a mitigating factor while determining the appropriate sentence, keeping in view the peculiar circumstances of each case. In the

present case, the attending circumstances leave no room for doubt that the prosecution has succeeded in proving its case beyond reasonable doubt against the appellant and the learned trial Court has rightly appreciated the evidence available on record, and the impugned judgment is in accordance with law, which calls for no interference. The instant criminal appeal is lacking substance, the same stands dismissed.

Announced

Naqqash Haider

JUDGE

JUDGE

(DB)Hon’ble Mr. Justice Sahibzada Asadullah, J Hon’ble Mr. Justice Muhammad Ijaz Khan, J