Khursheed Vs The State & 1 other

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

(Judicial Department) Cr.A No. 87-A/2025

Khursheed......................................(Appellant) vs The State & 1 other........................(Respondents) Present: Mr. Yasir Mustafa Khan Swati, Advocate for the appellant.

Mr. Muhammad Shoaib Khan, Asst:A.G for the State.

Mr. Muhammad Ali Qazi, Advocate for the complainant.

Date of hearing: 02.03.2026

JUDGMENT

ABDUL FAYAZ, J.- My this order is directed to dispose of this Criminal Appeal bearing No. 87- A/2025 filed by the appellant/convict namely Khursheed as well as the connected Criminal Revision No. 37-A/2025 filed by the complainant.

2.The appellant is aggrieved of his

conviction and sentence recorded vide judgment dated 30.04.2025 of the Court of learned Additional Sessions Judge-IV, Abbottabad, whereby he was convicted and sentenced as follows;

i. Under Section 324 PPC, to suffer SI for ten years and to pay fine of Rs. 50,000 (fifty Thousand) or in default to undergo SI for three months. He shall also pay Rs. 40,000/- (Forty thousand) as compensation to the injured/victim within the meaning of section 544-A Cr.P.C. or in default to undergo simple imprisonment for three months.

ii. Under Section 337 F(iii) PPC to pay Rs. 40,000/- as Daman to the victim in lump sum or in default to be kept in jail till payment of Daman as provided in Section 337-Y(2) PPC. In addition to Daman he was also sentenced to two years simple imprisonment as Ta’zir.

iii. Under Section 337 F(v) PPC to pay Rs. 30,000/- as Damman to the victim in lump sum or in default to be kept in jail till payment of Daman as provided in Section 337-Y(2) PPC. In addition to Daman he was also sentenced to three years simple imprisonment as Ta’zir.

iv. Under Section 336 PPC, to pay Rs. 81,03,955/- as Arsh to the victim in lump sum or in default to be kept in jail till payment of Arsh as provided in Section 337-x PPC. In addition to Arsh he was also sentenced to suffer five years simple imprisonment as Ta’zir with fine of Rs. 200,000/- or in default to further undergo SI for six months.

v. Under Section 341 PPC to suffer 10 days SI and Rs. 1000/- or in default to undergo two days further SI.

All the sentences were ordered to run

concurrently and the appellant was also extended the benefit of Section 382-B Cr. PC.

3.Complainant Naveed Ahmed reported the matter to the local police in injured condition that he was going to attend his duty in his motorcar bearing registration No. 948/AB and when reached near the School of Pattan Khurd, appellant Khursheed, who was already present in the way, stopped his vehicle and started firing at the complainant as a result of which he got several bullet injuries on different parts of body.

Thereafter, the appellant also cut the nose of the complainant through knife and also burnt motorcar of the complainant by pouring petrol on it. Motive was shown to be the marriage of complainant with the daughter of appellant/accused. The report of the complainant was scribed in the shape of Murasila on the basis whereof, FIR was registered against the accused. Upon completion of investigation, the challan was submitted against the appellant and he was indicted. The appellant pleaded not guilty and claimed trial. Thus, prosecution was offered to lead its evidence. Prosecution produced and examined twelve

(12)witnesses in support of its case, whereas

remaining witnesses were abandoned. Upon closure of prosecution evidence, statement of the accused/ appellant was recorded under Section 340(2) Cr.P.C.

wherein he again professed innocence, however, neither opted to produce defense evidence nor wished to be examined on oath. After hearing arguments of learned counsel for the parties, the learned trial Court convicted the appellant, as mentioned above. The appellant has sought his acquittal, whereas through the connected revision petition, the complainant seeks enhancement of sentence of the appellant.

4.Arguments of learned counsel for the parties were heard at length and the entire record of the case was carefully examined with their able assistance.

5.The prosecution case, in brief, is that the complainant Naveed Ahmad while proceeding towards Muzaffarabad for duty was intercepted by the appellant who allegedly fired upon him causing firearm injuries on different parts of his body and also imputed nose of the appellant with knife. The injured was shifted to hospital where he received emergency medical treatment and subsequently the report was lodged against the appellant. The prosecution in order to

substantiate the charge produced the complainant as injured witness along with medical evidence, recovery witnesses and the investigating officer. The prosecution case is primarily founded upon the statement of the injured complainant (PW-7) who furnished a detailed account of the occurrence and reiterated the contents of his initial report recorded soon after the incident. Being an injured witness, his presence at the place of occurrence cannot be doubted.

The law attaches great evidentiary value to the testimony of an injured witness as he is the natural witness of the occurrence and ordinarily would not falsely implicate an innocent person while shielding the real culprit. The complainant in his deposition remained consistent with regard to the date, time, place and manner of occurrence and categorically attributed the role of firing and assault with knife to the appellant. Despite lengthy cross-examination, nothing material could be elicited to shake his credibility or to create any serious doubt about the truthfulness of his version.

6.The statement of the complainant also finds corroboration from the medical evidence. The injured was examined by the concerned doctor who

prepared the medico-legal report and confirmed multiple firearm injuries on different parts of the body of the complainant along with amputation of the nasal bridge and fracture of femur as revealed through radiological examination. The medical evidence thus fully supports the ocular account furnished by the injured witness. The record further shows that the complainant underwent further treatment including surgical procedures which are duly reflected from the medical documentation brought on record. The doctor who appeared before the Court deposed in a straightforward manner and his testimony remained unshaken during cross-examination.

7.The investigative evidence also lends support to the prosecution case. The Investigating Officer visited the place of occurrence on the same day, prepared the pointation memo and secured blood- stained earth and other incriminating articles from the spot. Crime empties of .30 bore were recovered and taken into possession through proper recovery memos.

The weapon of offence was also recovered on the pointation of the accused and the recovered articles were duly exhibited before the Court. The serological report confirmed the presence of human blood on the

clothes of the injured. The witnesses associated with the recoveries supported the prosecution case and nothing substantial was brought on record to discard their testimony.

8.The learned counsel for the appellant attempted to point out certain omissions and discrepancies in the prosecution evidence; however, on careful scrutiny these appear to be minor in nature and relate only to peripheral aspects of the case. Such trivial discrepancies are quite natural in human testimony and cannot be treated as sufficient to discard the otherwise reliable and confidence inspiring evidence produced by the prosecution. The overall evidence when read as a whole, forms a consistent chain pointing towards the culpability of the appellant.

It is also pertinent to mention that the complainant was personally acquainted with the appellant prior to the occurrence and the incident took place in broad daylight when the accused came in close proximity to the injured. Therefore, the possibility of mistaken identity or false substitution is completely ruled out.

9.In the case of Saifullah vs the State reported as 2003 SCMR 496, nose of the victim had

been chopped off and mutilated with the knife by the appellant in the case, and the sentence of conviction under section 334 PPC was maintained by the Hon’ble Apex Court. Reliance in this respect is also placed on the case of Abdul Wahab and others vs The State and others reported as 2019 SCMR 516.

10.Motive could not be established by the prosecution in the case. The complainant has stated in his first report as well as his testimony in the Court that motive for the occurrence was some matrimonial dispute but the same could not be established during evidence. The motive thus remained hidden but non- existence and non-disclosure of the motive has been held by the august Supreme Court of Pakistan to be digestible and not fatal to the case of prosecution. The Hon’ble Apex Court in the case of Nawaz Ali and another vs The State reported as 2001 SCMR 726, held as follows;

“8. It has been held time and again by this Court that in case of lack of motive altogether or if the prosecution is unable to prove motive for murder, it does not affect the imposition of normal penalty of death in murder case, if the prosecution otherwise has been able to prove its case against the accused beyond reasonable doubt.

Reference may be made to Ahmad Nisar v. The State (1977 SCMR 175)

wherein this Court observed as follows:-- "Generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivates an accused person to commit a crime is best known to him and not to others. Absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-witnesses if they be otherwise reliable.”

Reliance in this respect is also placed on the case of Talib Hussain and others vs The State reported as 1995 SCMR 1776 and the case of Muhammad Akbar and another vs The State reported as PLD 2004 Supreme Court 44 as well as the case of Khurram Malik and others vs The State and others reported as PLD 2006 Supreme Court 354.

11.The prosecution has been able to prove the case against the accused/appellant through reliable and confidence inspiring evidence. The testimony of the complainant victim could not be shattered. The statement of Doctor also fully supported the version of the prosecution. The corroboratory pieces of evidences also lend an additional support to the case of prosecution. The prosecution was not under an obligation to produce all of its witnesses as held by the Hon’ble Apex Court in the case of Khushi

Muhammad vs The State reported as 1983 SCMR

697.The learned trial Court has therefore rightly found the accused/appellant guilty of the commission of offence and has rightly convicted him.

12.Sub section 2 of section 337-N PPC provides for the cases, where the sentence of imprisonment may be awarded in addition to payment of Arsh. The said provision being relevant is reproduced hereunder for ready reference;

337-N. Cases in which qisas for hurt shall not be enforced:

(2)Notwithstanding anything contained in this Chapter, in all cases of hurt, the Court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta'zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour; Provided that the Ta’zir shall not be less than one third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour.

13.The non obstante clause contained in subsection 2 of section 337-N PPC gives the said provision an overriding effect over all the other

provisions dealing with the offences of hurt contained in Chapter XVI of the PPC. The wordings of the reproduced provision of law is itself clear and lays down in express words that in all cases of hurt, the normal punishment to be awarded to an offender is payment of Arsh or Daman and a sentence of imprisonment can only be awarded in the case, where an offender is found to be a previous convict, habitual or hardened, desperate or dangerous criminal or an offence has been committed by him in the name or on the pretext of honor. In quite a similar case of Abdul Wahab and others vs The State and others reported as 2019 SCMR 516, the Hon’be Apex Court held as follows;

“It was alleged that Abdul Wahab appellant had then cut the right ear of Ahmed Ali (PW2) with the use of a knife and there was some doubt available on the record as to whether the ear was cut off through the use of a knife or it was bitten off by the said appellant. Be that as it may, there was no serious motive on the part of the appellants and the asserted motive had never been proved through any independent evidence. Admittedly the appellants were not previous convicts and there was no evidence of previous involvement of the appellants in any criminal case. It is not denied that no issue of honour was involved in commission of the relevant offence by the appellants. In this view of the matter in terms of section 337-N (2) the

appellants could not have been punished with imprisonment by way of Ta'zir.”

In this respect, reliance is also placed on the case of Haji Maa Din and another vs The State and another reported as 1998 SCMR 1528 and the case of Mazhar Hussain vs The State and another reported as 2012 SCMR 887.

14.So far as the quantum of sentence, awarded to the appellant is concerned, the record shows that the appellant is an aged person approximately between sixty-five to seventy years. The learned trial Court has also imposed a substantial amount of Arsh upon the appellant amounting to Rs.

81,03,955/- along with other amounts of Daman and compensation payable to the injured. In these circumstances, keeping in view the advanced age of the appellant and the heavy financial liability imposed upon him by way of Arsh and compensation, coupled with the fact that the appellant was not a previous convict, it appears appropriate to extend some measure of leniency with regard to the quantum of imprisonment.

15.For the foregoing reasons, while maintaining the conviction of the appellant recorded by

the learned trial Court under the relevant provisions of law, the sentence awarded under section 324 PPC is modified to the extent that the term of imprisonment is reduced from ten years rigorous imprisonment to five years rigorous imprisonment. The remaining parts of the impugned judgment including the amounts of Arsh, Daman, fine and compensation shall remain intact and shall be paid to the complainant in accordance with law. The sentences shall run concurrently and the appellant shall also be entitled to the benefit of section 382-B Cr.P.C. With these modifications in the quantum of sentence, the instant appeal stands partly allowed, whereas the connected revision petition, brought by the complainant for enhancement of sentence of the appellant, stands dismissed, having become infructuous.

Announced Dt: 02.03.2026

JUDGE

Tufail./*

Mr. Justice Abdul Fayaz