Qismat Ullah Vs The state etc

a Judgment Sheet

(Judicial Department)

A

Qismat UIIah v.

The State

JUDGMENT

For appellan(s): Pir Hamid Ullah Shah Advocate For respondent(s): Mr. Muhamr,nad Sadiq Khan Advocate For State:

,A.ddt. Advocate-General

Date of hearing: 20.02.2025

MUHAMMAD TARIO AFRIDI. J.- By this single judgment, we proceed to decide the fate of this criminal appeal and criminal Revision Petition No.53-B/2023, as both involve identical questions of law and facts, and arise out of a judgment dated 18.05.2023 ("the impugned judgment"), passed by the Court of Additional Sessions Judge-III, Bannu ("the trial Court"), whereby, Qismat Ullah (66the appellant") was convicted and sentenced:

i. undcr section 302(b) PPC, to rigorous imprisonment for life as ta'azir, with the payment of Rs.5r00,000/- as compcnsation to thc legal heirs of the deceased in terms of section 544-A Cr.P.C., or in default of its payment, to suffer 06 months of S.I.n and ii. under scction 203 PPC, to 0l year of R.I., with fine of Rs.50,0001-, or in default of its payment, to suffer 03 months of S.I.

n The benefit under section 382-B Cr.P.C. was extended to the appellant, and the sentences were ordered to run concurrently.

2.The brief facts culminating in the filing of this criminal appeal and the revision petition are that on 25.12.2020 at 05:10 AM, the appellant, in injured condition, lodged a report in the Emergency Ward of Civil Hospital, Bannu, to the effect that on the fateful night, he along with his wife Bushra Bibi and children were asleep in their residential room. At about 04:00 AM, someone knocked at the window of their room, on which his wife Bushra Bibi woke up and told him that thieves had entered their house. In the meantime, the assailants with their firearms started firing at them through the closed windows, and resultantly he and his wife were hit and injured. Meanwhile, their relatives attracted to the spot and removed them in injured condition to the hospital. However, his wife Bushra Bibi succumbed to her injuries en route to the hospital. The appellant did not allege any motive, nevertheless he claimed that one year ago, he had caused injury in a road accident to one Muneeb, who had threatened his life and thus he lodged the report against unknown culprits.

3.The report of the appellant was jotted down in the shape <rf murasila Ex.PW-711. The injury sheet of the appellant, as well as that of the deceased, along with her inquest report, were prepared. The appellant was sent to the doctor for medical

n treatment, while the deceased was sent to the mortuary for postmortem examination, under the escort of constable Umer I(hitab No.1613. Similarly, the murasila was sent to the police station through constable Fida Ullah No.2238, leading to the registration of FIR No.336, dated 25.12.2020, under sections 302 t 324PPC at Miryan police station in Bannu.

4.During the course of the investigation, Meena Bibi, the mother of the deceased Bushra Bibi, got her statement recorded under section 164 Cr.P.C. before the Judicial Magistrate on 30.12.2020, where she nominated the appellant for the death of the deceased.

5.Consequently, the appellant was arrested, interrogated, and investigated, and after the completion of the investigation, the report (challan) under section 173 Cr.P.C. was submitted against him. He was produced before the trial Court and was provided with copies of statements and documents within the meaning of section 265-C Cr.P.C. Charges were framed against the appellant, to which he pleaded not guilty and claimed tial.

In order to substantiate the charge against the appellant, the prosecution examined a total of 09 witnesses. After the prosecution closed its evidence, the appellant was examined under section 342 Cr.P.C., wherein he professed his innocence and denied the charges leveled against him. He, however, did not wish to be examined on oath under section 340(2) Cr.P.C.

1 or to produce evidence in his own defence. After the arguments were addressed, the trial Court adjudged the appellant guilty, leading to his conviction and sentence, as aforesaid.

6.Now, the appellant, being aggrieved with his conviction and sentence, stands before this Court in this criminal appeal, seeking his acquittal, while the petitioner Meena Bibi, being aggrieved with the quantum of the awarded sentences, has filed the connected criminal revision petition, seeking their enhancement.

7.We have heard with patience the learned counsel for the parties as well as the learned A.A.G. appearing on behalf of the State, and perused the record in light of the contentions made at the bar.

8.On the fateful night of 25.12.2020, an unfortunate incident took place in which the appellant's wife Bushra Bibi was shot dead while she was sleeping inside her residential room. The details of this ruthless tragedy were revealed by the appellant when he lodged the report a few hours after the incident. The appellant asserted that on the fateful night, they were asleep when, at about 04:00 AM, unidentified assailants knocked at the windows of their residential room, waking them up from their sleep. The deceased, he added, informed him that thieves had entered the house, but in the meantime, the assailants opened fire at them with their firearms through the

n closed windows, and resultantly both of them were seriously injured. Meanwhile, their relatives were attracted to the spot and took them in injured condition to the hospital for medical treatment. However, the appellant's wife Bushra Bibi succumbed to her injuries en routeto hospital'

9.Although, the appellant did not directly charge anyone and lodged the report against unknown culprits, however, on 30.12.2020, Meena Bibi, who is the mother of the deceased Bushra Bibi, got her statement recorded under section 164 Cr.P.C. before the Judicial Magistrate, asserting that her daughter (the deceased) had been married to the appellant tbr about 2 I 3 years, and the couple had been blessed with a baby boy and a girl. She further asserted that on 27.12.2020, the lt engagement ceremony of one Hamid Khan was scheduled, and the deceased was eager to participate in the event, but her husband was not willing to give his consent, which led them having a spat at night and tragically, the situation escalated and the appellant ultimately shot and killed her and caused a firearm injury on himself to justiff the story he narrated in the FIR.

She, thus, charged the appellant for the death of the deceased.

10.No doubt, the mother of the deceased Meena Bibi is not an eyewitness of the occurence, and undeniably, there is no one else who can confirm, who actually fired the shot in question, when the coupled was alone. However, the question

n before this Court is whether the mere fact that she did not personally witness the occulrence would suffice for the acquittal of the appellant, or if the Court, in the attending circumstances, must determine as to whether the prosecution has otherwise been dble to prove the charge against the appellant beyond a reasonable doubt.

11.There is no denial of the fact that the prosecution is required to prove the charge through direct evidence, which remains the primary mode of proof. However, if no such evidence is available, then the charge may be proved through circumstantial evidence, provided that it forms such a continuous chain that its one end touches the dead body of the deceased, ffid other, the neck of the accused, thereby excluding all the hypothesis of his innocence except guilt. Doubtlessly, the instant case lacks direct evidence, but the prosecution has been able to present circumstantial evidence and, therefore, we are to see as to whether its chain is so well knit that one of its ends touches the dead body of the deceased, ffid the other, the neck of the appellant.

12.To determine this significant aspect of the case, we find that after the appellant and the deceased were shifted to the hospital and the FIR was lodged by the appellant against unknown culprits, the I.O. visited the spot. During the spot inspection, the I.O., as per recovery memo Ex.PW-2/3, found

n 02 crime empties in the courtyard and 0l crime empty on the bed, along with 03 spent bullets inside the room at points C and D, respectively. The same were taken into possession and sealed in separate parcels. Similarly, the I.O., as per recovery memo Ex.PW-214, found a cover of a pillow with the deceased's Dupatta on it, having bullet marks. Vide the same recovery memo, the I.O., after observing through and through bullet marks on the pillow, the mattress, and the bed, took the same, along with the cover of the pillow, into his possession.

13.Likewise, the appellant, after being nominated in the instant case, led the I.O. to the spot, where a .30mm bore pistol, without a number, was recovered on his pointation from a ghee tin lying inside the said room, as evinced from the recovery memo Ex.PW-212. The appellant admitted it to be the weapon of the offence. Notably, the pistol was packed and sealed in a separate parcel, as evinced from the recovery memo Ex.PW-

212.Subsequently, the aforesaid parcels were seut to the FSL to ascertain as to whether the crime empties had been fired from one and the same weapon or different weapons, and as to whether the crime empties were fired from the recovered pistol or otherwise. The FSL report Ex.PW-8/4 was received and it reveals that all the three crime empties were of .30 bore and were fired from the aforesaid recovered .30mm bore pistol. It is imperative to state that the recovery of such a weapon, as a

consequence of information disclosed by an accused, being a new fact, constitutes discovery within the meaning of Article 40 of the Qanun-e-Shahadat Order, 1984 ("the Order").

14.The PM report Ex.PW-l/l of the deceased reveals that she sustained a single firearm through and through entry wound on the left ear, r,vith a corresponding exit wound on the right ear. According to the version put forth by the appellant while lodging the report, the deceased woke up upon hearing knocks at the windows of their room, informed the appellant that thieves had entered the house, and soon thereafter, the assailants opened fl-re at them with firearms through the closed windows. In our view, if, as per the version of the appellant, thieves had indeed knocked at the windows during the night, both the appellant and the deceased would have either stood up or sat on the bed. In such a situation, a through and though irjrry on the deceased was possible, however, there was no possibility of through and through bullet marks on the pillow, the mattress, and the bed, as these were in a lying position, whereas, the firing was alleged to have been made from outside through the closed windows, which had a height of 05 feet.

Here, it is noteworthy that the version of the appellant was that the assailants fired only through the closed window and then fled away. The appellant did not claim that he retaliated or fired from inside the room. If this version were true, then there would

a have been no possibility of a crime empty being found inside the room. However, as noted above, the I.O. recovered a crime empty of a .30mm bore pistol from the bed on which the deceased was sleeping, and pertinently, not only this very crime, but also those recovered from the courtyard matched with the pistol recovered on the pointatoin of the appellant' There can be no escaping from the fact that if indeed all the shots were fired by the unidentified assailants, then there would have been no possibility of the crime empties being matched with the pistol recovered on the pointation of the appellant' However, the record speaks otherwise.

15.Similarly, the appellant asserted that after the assailants decamped, his relatives attracted to the spot and took him along with his wife Bushra Bibi to the hospital for medical treatment.

According to the appellant's version, Bushra Bibi succumbed to her injuries on the way to the hospital. If indeed such were the case, then there would have been some probable time between the injury and her death. However, the PM report reveals that the deceased died instantaneously due to the injury caused to her brain.

16.It also does not appeal to a prudent mind that thieves would knock at the closed windows of a room where someone is sleeping instead of knocking at the doors of the room. It was also noted that the windows had two entrance bullet marks with

a corresponding bullet marks on the wall of the room towards the western side, and as noted above, only two crime empties were recovered from the courtyard. It shows that the two shots fired through the closed windows directly exited through the windows and hit the wall inside the room. At this juncture, if we say that indeed out of the two shots fired through the closed windows, one hit the deceased, causing her a single through and through entry and exit wound, then it raises the question of why the deformed bullet, recovered from near the westeln wall, had no blood and how the through and through bullet marks were possible on the pillow, the mattress, and the bed. As these significant questions remained unanswered, it can be inferred from the peculiar facts and circumstances that the shots fired through the closed window did not hit the deceased, rather they directly hit the wall.

17.If we collectively consider the effect of the afore-noted peculiar facts and circumstances of the case, then an opinion could be formed that there is a well knit chain of circumstantial evidence against the appellant, and that the deceased was not shot dead in the manner alleged and presented by the appellant while lodging the report.

18.Furthermore, the prosecution has been able to establish the afbresaid recoveries by examining the I.O. and the marginal witnesses. All of them unanimously and firmly supported the

- ll -

a factum of the recoveries. They were cross-examined by the defence counsel at great length. However, nothing detrimental to the prosecution case could be elicited from their testimonies, rather they remained firm and consistent on each and every material aspect of the case. Moreover, nothing has been brought on the recorcl by the defence that could suggest arty malafide ot

ulterior motive on the part of the police officials to falsely depose against the appellant, especially in a case involving the ruthless murder of his wife. The petitioner Meena Bibi also had her statement recorded as PW-06. She, too, reiterated what she had stated in her statement under section 164 Cr.P.C. She was subjected to a thorough cross-examination by the defence, but her testimony could not be shattered, except for the fact that she is not an eyewitness of the occurrence. However, in our considered view, the mere fact that PW-06 did not herself wifiress the occurrence is no ground to impeach the credibility of the circumstantial evidence, which, in this case, is of such a nature that one end touches the dead body of the deceased, and the other touches the neck of the appellant.

19.The peculiar circumstance in the given facts of the case is that the appellant could offer some explanation, also referred to as 'evidential burden' under Article 122 of the Order as to how, *hy, and at the hands of whom the deceased, while in his sole company, lost her life in a doubtlessly criminal incident.

A Needless to say, the appellant was under no burden to offer such an explanation to prove his innocence, as the burden rests upon the prosecution and the prosecution alone, with all its weight, to prove his guilt beyond a reasonable doubt. The need for such an explanation from him has arisen, because the prosecution has been able to prove the charge against him through the circumstantial evidence. Had the prosecution failed in discharging its heavy burden, no opportunity for his explanation would have arisen. Nevertheless, the appellant faited to discharge the onus he was burdened with under Article 122 of the Order. On the one hand, the material on the record totally contradicts the stance taken by the appellant, while on the other hand, the stance taken by the appellant is found to be self-contradictory for the simple reason that in the FIR, he did not directly charge anyone by name, except merely mentioning that one Muneeb had threatened him a year ago, but in his statement under section 342 Cr.P.C., the appellant explicitly stated that the offence was committed by the said Muneeb, whose nomination was never sought throughout the trial proceedings. The principle of evidential burden on accused was discussed in Rehmat v. The State (PLD 1977 SC 515), holding:

Section 106 of the Evidence Act lays down that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. It seems to me that this section operates as an exception to the general

rule embodied in section 101 0f the Evidence Act read ^ with Illustration (a) to the effect that the burden of proof lies on the prosecution to bring the guilt home to the accused who is presumed to be innocent. Indeed as observed by Best in his Principles of the Law of Evidence (section 277 at page 207 Eighth Edition) the courts have felt difficulties in the application of this principle to criminal charges. However, the purpose of this section is discernible from the two Illustrations below it. In accordance with the first Illustration where a person does an act with some intention other then that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. The second lllustration provides that where A is charged with travelling on a railway without a ticket, the burden of proving that he had a ticket is on him. As observed by M. Munir in his Law of Evidence (page 1041 Pakistan Edition) this section is designed to meet certain exceptional cages in which It would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and whir b he could prove without difficulty or inconvenience.

In explaining the application of the principle underlying this section Best in his Law of Evidence (Eighth Edition) section 275 atpage266 has observed:

"And in R. v. Burdett (4 B & A 95' 140), Holryd' J., states in the most explicit terms that the rule in question "is not allowed to supply the want of necessary proof, whether direct or presumptive, against a defendant of the crime with which he is charged j but when such proof has been giveno it is a rule to be applied in considering the weight of the evidence against him, whether direct or presumptive, when it is unopposed, unrebutted, or not weakened, by contrary evidence which it would be in the defendant's power to produce, if the facts directly or preemptively proved were not true."

20.This ruling has been followed in Raia Khurram Ali Khan and another v. Tayyaba Bibi and another (2019

't2t Islamabad) and Noorul Haq v. The State (1992 SCMR l45l [Shariat Appellate Bench Supreme Court of Pakistanl).

21.For the aforesaid reasons, we are of the considered view that the prosecution has successfully brought home guilt against the appellant through circumstantial evidence. Though, the appellant took plea that the offence was committed by Muneeb, but failed to prove the same. Therefore, it can be safely concluded that the trial Court has properly appreciated the evidence while handing down the conviction to the appellant.

The learned counsel for the appellant was unable to point out any material contradiction or discrepancy that could create a reasonable doubt in the prosecution case.

22.As regards the connected revision petition, we find that the petitioner Meena Bibi, in her statement, explicitly stated that an altercation had taken place between the appellant and the deceased on the night of the occun'ence, which red to the incident. on the one hand, the motive remained unproved, which could be considered a mitigating circumstance for awarding the sentence of life imprisonment under section 302(b) PPC, as per the rulings of the supreme court in Muhammad Akram olius Akrai v. state (2019 scMR 610), Mst. Nazia Anwsr v, state (201g scMR 911), and Ali Bux v.

state (2018 scMR 354). on the other hand, Meena Bibi conceded herself that the appellant committed the offence after

A he had an altercation with the deceased on the night of the occurrence. This aspect of the case, in itself, eliminates any possibility of the appellant having committed the offence in cold blood or in any premeditated manner. In these circumstances, the cluantum of the awarded sentence cloes not lvarrant an'7 intcribrence.

23.In coi'ollary to the above discussion, we do not find any merit in eit[:cr the appeal or the levision petition. Consequently, both being rneriticss, are hereby dismissed.

Aflnounced Judge I Judge II 20.a2.2025 (Ghafoor Zarnan) Judge II

J w:

qc

1 7I{

tJ b5

(D.RJ

llrrnlble Mr. .lustice iianrran IIayat itrliln[:hcl II{rn'hle Mr" JnstiEe B{uhammatl Tariq Afridi