Naeem Ullah Vs The State etc

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JUDGMENT SHEET

IN TITE PESHAWAR IIIGII COURT'

BAI\INU BENCII.

(ladicial DePattmen) Cr.d No. lE6-8n024 with M.R No.05-B/2024.

Naeem Ullah.

Vs:

The State etc.

JUDG NT

Date of hearing 29.04.2025.

For appellant: Messrs. Farooq Khan Marwat and Muhammad Rashid Khan Dirma Khel, advocate.

For the State: Mr. Muhammad Asghar Khan Ahamdzai, Addl: A.G.

For Respondents: Mr. Ashiq Hussain, advocate. {.+'t***f*'i

ABDUL FAYAZ,T..

I At a ftial held by the learned Additional Sessions Judge- V, Lakki Marwat, appellant Naeem Ullah Vo Moeen Khan alias Hamayun r/o Land Ahmad Khel, Tehsil and District Lakki Marwat, was convicted by the learned ibid court u/s 302 (b) P.P.C for the murder of deceased Mst. Zeb-un-Nisa and sentenced to normal penalty of death with further burden of compensation amounting to Rs.500,000/- (Five lacs) payable to the legal heirs of the deceased or in default whereof he shall undergo six (06) months SL He was also convicted uls 452 P.P.C and sentenced 07 years RI with fine of Rs.100,000/- in

default of payment to further six (06) months SI, with of benefit u/s 382-B Cr.P.C.

2.Zxtila(complainant) ot 12.01.2023 while accompanying the dead body of her daughter Mst. Zeb-un-Nisa in the city hospital Lakki Marwat apprised the police with regard to the incident that on the eventful day she was present with her deceased daughter in house while no male member of the family was present. At about l2:00hours, accused Naeem Khan armed with Kalashnikov while trespassing into their house caught hold of Zeb-un-Nisa in order to take her for the commission of Zina, on this the deceased raised hue and cry and complainant told the accused to leave her, as such accused let her free and after getting back a bit at once launched / murderous assault by firing at the deceased with intention to commit her murder. As a result of firing of accused, the deceased got hit and fell down. Refusal of deceased to the desire of accused to keep illicit liaison with him served as motive for the crime.

3.After the arrest of appellant, supplementary challan was submitted to the court of Sessions Judge, Lakki Marwat, who entrusted the same to the leamed Additional Sessions Judge-V, Lakki Marwat and on the conclusion of the trial, the appellant was convicted and sentenced as mentioned above vide

impugned judgment dated 29.10.2024. The appellant assailed his conviction and sentence through the instant criminal appeal.

4.The prosecution in this case has examined as many as 09 wifiresses. Thereafter, on 23.10.2024, the learned Public Prosecutor closed the evidence of prosecution and the accused was examined u/s 342 Cr.P.C, however, he refused to be examined as his own witness or to produce defence and the learned trial court announced the impugned judgment on

5.In this case, no doubt the occurrence is that of the murder committed inside the house and the natural wibress, i.e, women folk of the incident. The deceased was the sister of six brothers and only one brother is residing in separate house while rest are the residents of the same house. Now, the question is that whether the FIR has been recorded by the mother of the deceased l\[st. Zxtila wife of Abdul Wahid. Her examination- in-chief is hereby reproduced:-

"statement of Mst. Zartila wfe of Abdul Wahid r/o Land Ahmad l{hel District Lakki Marwat aged about 53 years on oath:- Stated that on the day ofoccurrence

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i.e 12.01.2023 along with my daughter Mst. Zeb un Nisa were present in our house while other male members of our "fanily were not present in the house. At about 12:00 (noon time) accused Naeem Khan s/o Haji Hamayun (co-vtllager armed with Kalashnilav entered tnto our house and caught hold the hands of Zeb-un-Nisa for

the purpose of taking her with him to commit Zina with her, on this my daughter raised hue and cry. I also asked the accused to leove her. On this accused lefi hold of my daughter, get back a little and started firing at my daughter through his Kalashnilav with intent to commtt her murder. Resultantly due to the firing of accused my daughter got hit and fell down on the ground. Afier the occurrence accused decamped from the spot. I was empty handed and could not do anything. Occurrence w(N witnessed by ma Motive behind the occurTence was that accused Naeem Khan wished to keep illicit relation with my daughter and my daughter was not willing for that. Arter the occurrence while we were shirting the injured to the LakH city hospital but in the way she succumbed to the injuries. In the city hospital Lakki Marwat, police also arrived and I reported the matter to the local police at 13:45 hours, my report was written down, the same was read over to me and I thumb impressed the same as a tolren of its correctness, while my son Dil Nau,az signed the same being rider.

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Thereafier on the very day came to my house and police/I.O came to my house who prepared site-plan on my pointation, which is correct. DurW preporation of site-plan and spot inspection, police recovered blood stained earthfrom the place of rny deceased daughter and also secured five empty shells of 7.62 bore from the place of accused Naeern Khan, which were sealed into separate parcels. To this effect recovery rnetno was prepared and I thumb impressed the same as one of the marginal witness to the recovery memo. During spot inspection one constable Abdul Rashid FC # 27 brought blood stained Qamis and Shalwar of blue color belonging to the deceased Zeb' un-Nisa sent by the doctor and handed over to the I.O on the spot in my presence, I.O took the same into possession and sealed it into parcel. I am also margtnal witness to the recovery memo of the above mentioned garments, whtch is correctly thumb

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impressed by me. was examined under section 161 Cr.P.C by the I.O on the spot. I charge the accused fo, the commission of offence.

6.In her cross-examination, she has admitted that "I am illiterate Neither I carry watch nor I can tell time lrom the watch. Nobo@ told me the time of occunence rather I rnyself guessed the same from the sun position as the sun was in the mid of the s/c/". She was specifically questioned that from the location/position of the sun can she determine the time? She got recorded her answer "As I arn nol use to watch being not understandqble to nu then how from mere position of sun I can determine the lime." Thus, the time of occurrence recorded by the PW-7 in her initial report in shape of tnurasila Ex.PW- 3/2 is incorrect which confirms that the incident has not taken place at the time as alleged by her.

7.The next question before this Court is that whether the report was recorded at the hospital or at the PS' We have perused the entire record where we have observed that Ex.PW-3/2 available on the file which is murasila report recorded allegedly from the mouth of Zartila, the mother of the deceased, who was examined as PW-7 and we have also noticed which fact has been admitted by this PW-7, the complainant of the case, who is the star witness of the prosecution, in her cross-examination thal "I had gone to the police station for report aficr the occurrence, wherein I had todged the report regarding the mutdet of tny daughter.

Besides the PS I had not reported the matter anywhere-else" .

She further went on say that "at the time of repott I was all alone, however, my son Dil Nawaz came later and he asked the police olft.cials in the PS that the report of my mother is correct and it should be taken down." Thus, from the statement of this PW-7, who is key witress of the incident, has denied the report to have been recorded from her mouth in the hospital rather she was affirmed on same that she had recorded her report in the PS. Hence, the very report vide murasila has not been proved which was recorded in the hospital. This significant infirmity has rendered the ocular account unworthy of reliance. In this context, reliance is place on the case "Ahmad Shah and another v. State and. another" 12022 { P.Cr.L.J l260l,the pertinent para of the judgment is as under:- "23. h is an admitted principle of crirninal administration of justice that for dtsbelieving the statements of witnesses it is not necessary that there should be numerous infirmities, contradictions. If there is one which impeaches the credibility of the witness, the entire statement of the witness would be doubtful. The conviction in capital punishment cannot be sustained without unimpeachable, trustworthy and reliable evidence. The prosecution should prove the criminal liability by strong and consistent evidence."

8.Another intriguing aspect of the case is FIR of the case which is EX.PW-5ll,the same is hereby reproduced:-

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9.Regarding the FI& it is on the record that the deceased was the sister of six brothers and the appellant Naeem lIllah Vo Ilamayun Khan was no doubt is hailing from the village of the complainant party but not from the same Mohallah and the reason advanced by the complainant PW-7 does not apPeal to a prudent mind as she had recorded that the appellant Naeem Ullah entered their house and caught hold ofher daughter from her hand and was taking her for the purpose of adultery but when her deceased daughter started hue and cry and complainant called upon the appellant, he left the deceased Zeb-

un-Nisa and when went to a certain distance, he started firing at the deceased as a result of which she succumbed to the injuries and died on the spot and the accused fled away from the spot.

Now, if we peruse the site plan, the deceased has been shown at Point No.2 while complainant at Point No.l and vice versa the appellant at Point No.3, whereas from Point-A five empties of 7.62bore has been shown recovered and when we see the inter- se distance between Points No.2 & 3, i.e, 09 feet while in between Point No.l & 3,i.e,09 feet and Point No.l & 2 there is a distance of 18 feet. This is a natural conduct of human being when a stranger enter the house where the women-folk are present how could he dare to caught hold ofa young lady aged about 16117 years and her mother would be standing as silent spectator. At least when he caught hold ofthe deceased from her hand than she was supposed to have come to the place where the deceased has been shown at Point No.2. Conduct played by the complainant/PW-7, is beyond of our comprehension and does not appeal to prudent mind which fact alone is sufficient that the occurence has not been committed by the appellant rather it might have been committed by any one amongst the brothers of the deceased. This fact we have derived from the statement of accused recorded uls 342 Cr.P.C

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in reply to question No.11 when he was asked that what is your statement and why are you charged, his reply was as under:- "I am innocent and have falsely been charged in the instant case. During the days of occurrence I was deputed in Polio Department and in the meanwhile we, I and deceased, developed love affair with each

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other. In this respect wanted to marry deceased but the fomily members of the deceased were not ready. One day when the brother of deceased namely Wali Wah saw the deceased talking with me on a mobile phone then he committed her murder by making firing upon her with his Kalashnilrov. Resultantly fro* the firing of brother of deceased, the deceased got hit and succumbed to the injuries. Thereafier, I was falsely charged for the murder of deceased. During investtgation it was also opined by the investigating fficer that the brother of the deceased Wali Ullah is responsible for the murder of deceased and in this respect he was also suspected but Wali Ulah was not produced before police despite the fact that police issued documentary process for appearance against Wali Ullah and directions were tssued to their fo*ily members. When I surrendered before police I moved my innocence application and produced number of witnesses and they also tendered their ffidavits and recorded their statements under section 161 Cr.P.C but now my witnesses are not ready to come with me to the court for the reason that they had been threaten by the family of the deceased ."

10.Moreover, apart from this fact we have also perused minutely the site plan of the occurrence where almost 13 rooms are available which fact supports that the deceased was the sister of about 5/6 brothers and some of them were married.

Now, if we take into consideration this aspect of the case than we come to the conclusion that there were other women-folk of

the house but they have deliberately not bee,n produced asa witness to the occurrence,

11.Another significant aspect of the case is that when a stranger enters the house and caught hold ofdeceased lady and when he was called upon loudly by the complainant and he left there and then the hand of the deceased and went to certain distance and from Point No.3 he fired. If we see the Point No.2, i.e, close to the room towards the Eastem side. Now if a person leaving her hand and went about most to 09 feet she could have easily taken shelter in the room situated towards the Eastem side ofthe house.

12.No tuming to another aspect of the case that one of the sons of complainant by the name of Dil Nawaz Khan who has seconded the report of the complainant did not appear before P,f, the hial court meaning thereby that whatever she recorded in the shape of murasila/IlR, he was not supporting the same. At least he could have been appeared to have supported the report of the complainant which in the case in hand is not so. Mere this fact that a single accused has been charged and that 05 empties has been shown recovered from the place of accused and the report whereof is that, the same were fired from one and the same weapon would not be sufficient to connect the accused with the crime and proving of prosecution verslon

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13.It has also been admitted in the cross examination by the I.O examined as PW-8 before the leamed trial court that I s

came to know dwing the coutse of investigation and it was also the defense version ofthe accused and the statement of the DWs that being SHO I tried to find oul the tealfacB and trdh of the instant case behind the murder. I camc to know through my secret inquiry and investigation thal deceased Zeb-un-Nisa was talking to someone on mobile phone and on seeing lhis, her brother Woli llllah killed her through his Kaloshnikov byliring ot her." This witness further went on say " I could not find any wilness in this respect for the teasons that the occwrence had taken place inside the premises of their house". The I.O (PW-S) has also confirmed the fact "Hoteve4 in the light of defense witnesses the accused was lold innocent and in this respect I W the innocence or otherwise of accused on the metqt of the Courtt Thus, from the statement of the I.O, it is crystal clear that the offence has not been committed by the appellanUaccused rather by someone else. Even, otler-wise, the story put forth by the prosecution in the shape of FIR does not appeal to a prudent mind, hence, in support of innocence of the accused certain DWs has swom affidavits. It is also in the statement of accused recorded u/s 342 Cr.P.C, that he is Hafiz-e-Quran and even he cannot think

about such a gruesome offence. He has clearly recorded his version to question No.12 when he was asked that why the PWs has deposed against you, he stated as Under:- "It is incorrect. I never had or desired to haw illicit relationship with deceased In fact I was in love with her and when I requested the Wrents of the lady for gtutng hir in tty Niluh then they tlared up and the brother of deceased committed the murder ofdeceased."

14.Thus, from the above discussion, it is evident as prevailing in our Society that she might have been in love with the appellant and that she has been killed by her brother which fact has been supported by the investigating officer in his cross- examination. Thus, from the above discussion, we have reached to the conclusion that the prosecution did not prove its case against the appellant beyond a reasonable doubt. It is well settled that for giving the benefit of doubt it is not necessary { that there should be many circumstances creating doubts, rather a single circumstance that reasonably prix the judicial mind as to the guilt of the accused is suffrcient to benefit the accused, not as a matter of grace and concession but as a matter of right' Reliance in this respect is placed on the case. "Muhsmmad Akram v. The Stale" [2009 SCMR 2301, wherein it was held that-

"Ii. The nutshell of the whole discussion is thot the prosecution case is not free from doubt. It is an

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axiomatic principle of tau' that in case of doubt, the- benefit thireof rnust accrue infavour of the accused as matter of right and not of grace. It was observed by this Ciurt-in the case of Tartq Pervez v' The itate 1995 SCMR 1345 thatfor givingthe benefit of doubt, it was not necessary that there should be many circumstances creating doubts' If there is circumstance which created reasonable doubt in a prudent 'the mind about the guilt of the accused, then accusedwould be entitled to the benefit of doubt not as a matter of grace and concession but as a matter ofright.

14.In the above noted circumstances' we convert these petitions to appeals which are allowed' The judgments passed by the learned Courts below are 'set-aside.

The appellants are acquitted of all the charges and would be released fortlwith if not required tn any other criminal case."

15.Similarly, in another case "Maqsood Alam and another t). The State and others' 12024 SCMR 156), it was held:- " g. It ,s settled principle of lau' that the conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour -on of the accused and burden of proof is always proseciution to prove its case beyond reasonable aoibt. It is also an established principle of law and equity that it is better that 100 guilty persons should lit off but one innocent person should not suffer' The peculiar facts and circumstances of the present orc sfficient to cast a shadow of doubt on the "ori prosecution case, which entitles the petitioner -benefit of the doubt not os a matter of grace and concession but as of right. For the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be mony circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused. Reltance is placed on Mst. Asta Bibi v. The State (PLD 2019 SC 64), Tariq Perttaiz v. The State (1995 SCMR /,345), Aytb Masih v. The State (PLD 2002 SC 1048) and Abdul Jabbar v. State (201e scMR 12e).

10.For what has been discussed above, this petition is converted into appeal, allowed and the impugned judgruent is set aside. The petitioner is

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acquitted of the charge. He shall be released from iail unless detained/required in any other case'"

16.In the 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. The instant criminal appeal is accepted, the impugned judgment of conviction and sentence dated 29.10.2024 in case F.I.R No.01 dated 12.01.2023 ulss 3021452 P.P.C, Police Station, Saddar, District Lal&i Marwat, rendered by the learned trial court is, therefore, set-aside and consequently the appellant is acquitted of the charges leveled against him. He shall be set at liberty forthwith, if not required to be detained in connection with any other case'

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

t/tL Announced -Sd- Dt: I1.03.2025 Judge UKI *Imranullah*PS -Sd- JUDGE

r Judge

JUDGE

(D.B) Hon'ble Mr. Justicc Muhemmad Teriq Afridi & Hon'ble Mr. Justicc Abdul Fayaz I+t