Mst. Mukhtiar Bibi Vs The State

JUDGMENT SHEET

PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

(Judicial Department)

Cr.A No. 320-A/2019

Mst. Mukhtiar Bibi (Appellant)

Versus

1.The State.

2.Gul Nawaz son of Safdar Khan, Caste Pathan, 3. Akhtar Nawaz son of Gulistan, Caste Pathan, 4. Shareen son of Gulistan, Caste Pathan, residents of Dheri Kehal, Tehsil & District Abbottabad.

(Respondents)

Present: Qazi Muhammad Arshad, Advocate for the appellant.

Mr. Muhammad Shoaib, Assistant Advocate General for the state.

Mr. Asif Masood Tanoli, Advocate for the accused/respondents.

Date of hearing: 11.03.2026

JUDGMENT

ABDUL FAYAZ, J.- This order is directed to dispose of the appeal filed by appellant namely Mst. Mukhtiar Bibi against judgment of acquittal dated 03.08.2019 passed by learned Additional Sessions Judge/Judge Model Criminal Trial Court (MCTC), Abbottabad, whereby the learned trial Court acquitted the accused/ respondents No. 2 to 4 of the charges, in case FIR No. 519 dated 25.05.2015 under

Section 302/452/34 PPC of Police Station Havelian, District Abbottabad.

2.Briefly stated, the prosecution case is that on 25.05.2015 at about 09:00 p.m., complainant Mst. Mukhtiar Bibi reported the matter to the local police while accompanying the dead body of her deceased daughter Mst.

Saiqa Khatoon and alleged that at about 08:15 p.m. she, along with the deceased and minors namely Amina Eman, Wasif, Sarim Khan and Usama, was taking dinner in the veranda of her house when respondents Gul Nawaz, Shereen and Akhtar Nawaz trespassed into the house armed with 30-bore pistols. It was alleged that Shereen and Akhtar Nawaz exhorted Gul Nawaz to kill the deceased, whereupon Gul Nawaz fired at Mst. Saiqa Khatoon, which hit her on the back and ribs, as a result whereof she fell down.

Thereafter, the accused fled from the spot. On hue and cry raised by the complainant, people from the locality gathered and shifted the injured to hospital, however, she succumbed to the injuries on the way. Motive was stated to be that the deceased had obtained divorce from respondent Gul Nawaz through Court about six to seven months prior to the occurrence. The report of the complainant was recorded by PW-7 Ghulam Murtaza, SI, in the shape of murasila Ex.PA/1, on the basis whereof formal FIR Ex.PA was registered by PW-3 Muhammad Rafique, SHO.

3.In order to substantiate the charge, the prosecution examined as many as twenty witnesses. The complainant herself appeared as PW-1 and reiterated the facts narrated in the murasila with regard to the manner of occurrence and the role of the accused persons. PW-2 Muhammad Tariq, SHO, deposed regarding submission of challan under Section 512 Cr.P.C. against the accused. PW-3 Muhammad Rafique, SHO, deposed in respect of the formal registration of FIR Ex.PA. PW-4 Jehanzeb No.55 stated that he took the empties to the Forensic Science Laboratory through memo Ex.PW-4/1. PW-5 Muhammad Tariq No.1407 deposed that he handed over three empties to PW-4. PW-6A Astam, SI, was examined as marginal witness of memo Ex.PW-6/1 through which the garments of the deceased were taken into possession. PW-6 Dr. Rubina, who conducted postmortem examination of the deceased, supported the medical evidence. PW-7 Ghulam Murtaza, SI, proved the recording of report of the complainant in the shape of murasila Ex.PA/1. PW-8 Hastam Khan son of Shahidad Khan, being marginal witness to memo Ex.PW-8/1, stated that the investigating officer took into possession bulb and tube- light from the spot. PW-9 Nisar Ahmed Constable deposed that he took parcels No.1, 2 and 3 to the Forensic Science Laboratory through memos Ex.PW-9/1 and Ex.PW-9/2.

PW-10 Muhammad Yaseen, ASI, stated that he escorted the

dead body of the deceased for postmortem examination.

PW-11 Tahir Aziz, MHC, deposed regarding handing over of parcels to PW-9 for onward transmission to FSL. PW-12 Nazik Mehmood, ASI, stated that he handed over pistol to the investigating officer in presence of the accused after taking the same out from the Malkhana of the police station and that the same was taken into possession by the investigating officer. PW-13 Muhammad Iqbal, ASI, deposed that he arrested accused Akhtar Nawaz and Shereen after recall of their pre-arrest bail. PW-14 Jamal Akhtar, ASI, was examined as marginal witness to the recovery of pistol through memo Ex.PW-14/1. PW-14A Khanwaiz Khan was examined as marginal witness to the memo through which blood and empties were recovered from the spot and he also identified the dead body of the deceased before the doctor. PW-15 Ishtiaq Ahmad, Senior Civil Judge, deposed in respect of the confessional statement of accused Gul Nawaz as Ex.PW-15/3. PW-16 Muhammad Younis, SI, being the investigating officer, deposed regarding the various steps of investigation conducted by him. PW-17 Altaf, DSP, stated that he recovered blood and empties from the spot, also secured bulb and tube-light and prepared the site plan. PW-18 Junaid Khan deposed that accused Gul Nawaz was arrested by Sajid Nawaz, SI, during search and strike operation and

thereafter supplementary challan against him was submitted. Thereafter, the prosecution closed its evidence.

4.The statement of respondents under Section 342 Cr.P.C. was recorded, wherein they denied the allegations and professed innocence. They neither opted to appear as their own witnesses under Section 340(2) Cr.P.C. nor produced any evidence in defence. After appraisal of the evidence, the learned trial Court acquitted all the respondents by extending them benefit of doubt mainly on the grounds that there were discrepancies in the statement of the complainant with regard to the role of exhortation, that the site plan did not fully support the ocular account because though the complainant and deceased were allegedly sitting together, only the deceased was hit, that the bulb and tube-light were not taken into possession on the date of occurrence but on the following day, and that the confessional statement was not free from doubt. Feeling dissatisfied from the findings recorded by the learned trial Court, the appellant has preferred instant appeal.

5.We have heard the learned counsel for the parties and have gone through the entire record with their able assistance.

6.There is no denial to the settled principle that in an appeal against acquittal, the appellate Court does not ordinarily interfere unless the conclusions drawn by the

learned trial Court are shown to be arbitrary, capricious, perverse or based on misreading or non-reading of the evidence. At the same time, it is equally well settled that where material evidence has either been ignored, misread or not read at all, and the view formed by the learned trial Court is found to be wholly against the weight of evidence on record, interference by the appellate Court becomes not only permissible but necessary in order to prevent miscarriage of justice.

7.The prosecution case as set out in the Murasila Ex PA/1, is that the respondents trespassed into the house of complainant where respondents Shereen and Akhtar Nawaz raised Lalkara to respondent Gul Nawaz, whereupon Gul Nawaz fired at Mst. Saiqa Khatoon and committed her murder. As far as respondent Gul Nawaz is concerned, the prosecution has from the very inception assigned to him a definite, specific and consistent role of making the fatal fire upon the deceased. The FIR was promptly lodged without any undue or unexplained delay.

The occurrence allegedly took place at about 08:15 p.m., while the matter was reported to the police at about 09:00 p.m. with the dead body of the deceased, which circumstance clearly excludes the possibility of deliberation, consultation or fabrication. In the murasila as well as in the testimony of the complainant as PW-1,

respondent Gul Nawaz was consistently nominated as the person who, after exhortation, fired at Mst. Saiqa Khatoon.

The complainant is the mother of the deceased and a most natural witness of the occurrence, which, according to the prosecution, had taken place inside the house of the complainant itself. The place of occurrence, being inside the house of the complainant, was never seriously disputed.

Thus, her presence at the spot is not only natural but wholly confidence-inspiring. There is nothing on the record which could even remotely suggest that the complainant had any reason to substitute the real culprit and falsely implicate respondent Gul Nawaz for any ulterior motive while sparing the actual offender. A careful scrutiny of her statement further reveals that despite lengthy and searching cross- examination, the mode and manner of the occurrence as narrated by her, particularly to the extent of the firing made by respondent Gul Nawaz at the deceased, could not be shattered on any material point. No contradiction of such magnitude could be elicited so as to discredit her testimony regarding the principal role of respondent Gul Nawaz.

8.The prosecution case against respondent Gul Nawaz also finds strong support from the medical evidence.

PW-6 Dr. Rubina, who conducted the postmortem examination of the deceased, found following injuries on the body of deceased;

“1) A wound about 2x2 cm, on spinal card, about 6 inches below base of neck, and inverted margins bleeding.

2)A wound about same size in left mid axillary line at the level of lower edge of left scapula (with inverted margins).

3)A lacerated wound about 1 1⁄2 x 3 inches in direction of superior interior at level of left last rib, about 4 inches interior to left axillary line (superfacial skin absent).

4)A wound about 3 x3 cm with everted margin about 1 1⁄2 inches, inferior-lateral to left nipple, exit.

5)A wound about 3 x 3 cm about 1 1⁄2 inches middle to the left nipple and everted margins (exit).”

Her deposition confirmed that the deceased had sustained firearm injuries from her back as reported by the complainant and that the same proved fatal. Thus, the medical evidence is in complete harmony with the ocular account regarding the manner of assault, the seat of injuries, the direction of fire and the homicidal death of the deceased. This harmony between the ocular and medical account lends material assurance to the prosecution version.

In addition thereto, the report of the Forensic Science Laboratory with regard to the pistol and the empties recovered from the spot is also positive, which provides further corroboration to the prosecution case. The positive forensic evidence, when read alongside the ocular account and medical evidence, forms an additional incriminating circumstance against respondent Gul Nawaz.

9.In addition thereto, PW-15 Ishtiaq Ahmad, Senior Civil Judge, appeared and deposed in respect of the confessional statement of respondent Gul Nawaz as Ex.PW- 15/3. The learned trial Court appears to have disbelieved the said confession mainly on the ground that a specific question was not put to the accused that if he did not confess, he would not be handed over to police and would instead be remanded to judicial lock-up. In the facts of the present case, such omission, by itself, was not sufficient to discard the confession altogether, particularly when no such objection was raised by respondent Gul Nawaz in his statement under Section 342 Cr.P.C. Question No. 23 was specifically put to him regarding his confessional statement and in answer thereto, he merely denied his confession. He never claimed that the confession had been extracted through torture, pressure, coercion, inducement or promise.

He also did not set up any case that before making the confession he was under any apprehension of being handed over to police in case of refusal. In absence of any such plea on his part, and when the judicial officer concerned stepped into the witness box and proved the statement, the same could not have been brushed aside on a purely technical premise. More so, the confession is not the sole piece of evidence in the present case; rather, it stands corroborated by the prompt FIR, the natural and confidence-inspiring

testimony of the complainant, the medical evidence, the positive FSL report and the proved motive.

10.The motive set up by the prosecution was also not left unproved. The copies of family litigation between the deceased and respondent Gul Nawaz were brought on record through the investigating officer, which lend assurance to the prosecution version that due to previous matrimonial dispute and divorce obtained by the deceased through Court, strained relations existed between them. This documentary material sufficiently proved the motive and the respondents remained unable to controvert the same. It is, therefore, established on record that respondent Gul Nawaz had a definite reason to nurse grievance against the deceased, which fits in with the prosecution story and gives further probability to the ocular account furnished by the complainant.

11.The reasons weighed by the learned trial Court to disbelieve the prosecution case against respondent Gul Nawaz do not appear sufficient, convincing or legally sustainable. The discrepancy as to whether both Shereen and Akhtar Nawaz raised lalkara or only one of them did so, does not go to the root of the matter so far as the role of the principal assailant is concerned. It is well settled that minor discrepancies or variations, which are but natural after passage of time, do not shatter the prosecution case when

the core of the occurrence remains intact. Likewise, merely because no other person sitting nearby sustained injury, it cannot be inferred that the occurrence did not take place in the manner alleged, for in such incidents it is quite possible that the assailant successfully hits only the targeted victim.

The place of occurrence being inside the house of the complainant is not denied, and once the complainant’s presence there is natural and established, the mere fact that the deceased alone received injury is not sufficient to discard the entire prosecution case. Similarly, the delayed recovery of bulb and tube-light may create some dent with regard to the precision of the site inspection, yet that circumstance by itself is not sufficient to discard the direct ocular account, medical corroboration, positive forensic report, proved motive and confessional statement available against respondent Gul Nawaz. The learned trial Court, while extending benefit of doubt to him, appears to have given undue weight to peripheral discrepancies and insufficient weight to the material and confidence-inspiring pieces of evidence available on record.

12.However, the case of respondents Shereen and Akhtar Nawaz stands on a different footing. Their role in the occurrence is confined to the allegation of exhortation and presence at the spot. No overt act of firing was attributed to them. Except the allegation made in the FIR

and reiterated by the complainant, there is no independent evidence on record to firmly establish that they shared common intention with respondent Gul Nawaz to commit murder of the deceased. The discrepancy noted by the learned trial Court regarding the exact role of exhortation assumes significance in their case because their criminal liability is sought to be based solely on that allegation. In the absence of independent corroboration regarding prior meeting of minds or active participation, it cannot be said that the learned trial Court acted perversely in extending benefit of doubt to them. Thus, to their extent, the view taken by the learned trial Court is a possible view based on the evidence available on record and does not warrant interference in appeal against acquittal.

13.In view of what has been discussed above, this appeal is partially allowed. The judgment of acquittal passed by the learned trial Court is set aside to the extent of respondent Gul Nawaz only, and he is convicted under Section 302(b) PPC and sentenced to imprisonment for life.

He is further directed to pay compensation in the sum of Rs.200,000/- to the legal heirs of the deceased under Section 544-A Cr.P.C., recoverable as arrears of land revenue, and in default whereof to further undergo simple imprisonment for six months. He is also convicted under Section 452 PPC and sentenced to undergo rigorous

imprisonment for seven years with fine of Rs.50,000/-, and in default of payment of fine, to further undergo simple imprisonment for two months. Both the substantive sentences shall run concurrently and respondent Gul Nawaz shall also be entitled to the benefit of Section 382-B Cr.P.C.

Since he was on bail, he is taken into custody and sent to jail to serve out the sentence.

14.As regards respondents Shereen and Akhtar Nawaz, the appeal is dismissed and their acquittal recorded by the learned trial Court is maintained. These are the detailed reasons for short order of even date.

Announced

Dt. 11.03.2026

JUDGE

JUDGE

Tufai PSl.

(DB)Hon’ble Mr. Justice Abdul Fayaz Hon’ble Mr. Justice Syed Mudasser Ameer.