Bilawal Vs The State etc

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Criminal Appeal No.169-P/2026

Bilawal............................................Appellant. Versus The State and another...................Respondents.

Present:

Mr. Arif Rasool, Advocate, for the appellant.

Arbab Fakhr-e-Alam, AAG, for the State.

Mr. Saif Ullah Mohmand, Advocate, for the complainant (via video-link from Dar-ul-Qaza Swat).

Date of hearing: 11.05.2026

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through this single judgment, I intend to decide the instant appeal bearing No. 169-P of 2026 as well as connected Criminal Revision No. 53-P of 2025 titled “Hilal vs.

The State and another” as both are the outcome of the one and same order/judgment of learned Judicial Magistrate-IV, Takht Bhai, Mardan dated 27.01.2026, passed in a case registered vide FIR No.227 dated 01.04.2024 under sections 324/337- F(iii)/336 PPC r/w section 15 AA, at Police Station Saro Shah, whereby the appellant, namely Bilawal

son of Mirza Khan, was convicted and sentenced as under:

i. under Section 324 of the Pakistan Penal Code (PPC) for attempting to take the life of the complainant, Hilal. He is sentenced to undergo rigorous imprisonment for FIVE (05) years, along with a fine of Rs. 100,000. In default of payment of the said fine, he shall undergo an additional six months of simple imprisonment.

ii. under Section 336 PPC for causing injury that falls within the domain of Itlaf-i-Salahiyyat-i- Udw. He is sentenced to pay arsh equivalent to half of the amount of Diyat, as per Section 337-R PPC, to the complainant. The offence was committed in April 2018. In light of Section 53 of the PPC and Article 12(b) of the Constitution of Pakistan, the court will consider the amount of Diyat as it was at the time of the occurrence. According to notification, issued by the Finance Department of the Government of Pakistan, the value Diyat for year 2023-2024 i.e. the market value of 30,630 grams of silver has been notified as Rs. 6757902. Reckoning on the basis of said notification the Arsh for which the accused facing trial to pay i.e. half of

Diyyat is Rs. 3378951. The accused shall remain in custody until the payment of such arsh is made. The prosecution has not provided any evidence indicating that the accused is a habitual, hardened. or desperate criminal, nor does this case involve issues of honor; therefore, substantive punishment of Tazir is not awarded in accordance with Section 337-N(ii) PPC.

iii. under Section 337-F(iii) PPC for causing injury, which fall within the domain of Ghair Jaifah Mutalahimah. He is sentenced to pay Daman. Considering the grounds mentioned in section 337-Y PPC the value of Daman for which the convict shall be liable to pay to the victim, is fixed as Rs.500,000/ The accused shall remain in custody until the payment of such Daman is made. Again, the prosecution has not provided evidence that the accused is a habitual, hardened, or desperate criminal, nor does this case involve issues of honor:

therefore, substantive punishment of Tazir is not awarded in accordance with Section 337- N(ii) PPC.

iv. under Section 337-F(v) PPC for causing injury, which fall within the domain of Ghair Jaifah Hashimah. He is sentenced to pay Daman. Considering the grounds mentioned

in section 337-Y PPC the value of Daman for which the convict shall be liable to pay to the victim, is fixed as Rs.700,000/ The accused shall remain in custody until the payment of such Daman is made. Again, the prosecution has not provided evidence that the accused is a habitual, hardened, or desperate criminal, nor does this case involve issues of honor;

therefore, substantive punishment of Tazir is not awarded in accordance with Section 337- N(ii) PPC.

All the aforesaid sentences of imprisonment were ordered to run concurrently. Benefit of Section 382-B Cr.P.C was also extended to the appellant/convict.

2.Precisely, the facts of the present case are that, after registration of the case, a full-fledged investigation was carried out and thereafter, challan against the appellant/convict was put in Court, where charge was framed and served upon him, to which he pleaded “not guilty” and claimed trial. The prosecution produced its evidence against the appellant/convict and accordingly examined as many as eight (08) witnesses in support of its case, and thereafter statement of the appellant/accused under section 342 Cr.P.C was recorded, wherein he

refuted the allegations leveled against him;

however, neither he produced any evidence in defence nor opted to record his statements on oath under section 340(2) Cr.P.C. After conclusion of the trial and hearing the arguments of the parties, the learned trial Court convicted and sentenced the appellant/convict vide impugned order/judgment dated 27.01.2026, as mentioned in Para No.1 of this judgment. The appellant/accused has now challenged the aforesaid order/judgment through the instant appeal, while respondent No.1/complainant, namely Hilal, has filed connected Criminal Revision No.53-P/2026 for enhancement of sentence of the appellant/convict.

3.Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

4.It is the case of the prosecution, as set up by the complainant/victim, namely Hilal (PW-4), in the Murasila (Ex.PA/1), that on the date and time of occurrence, he, along with his brother, namely Amjad Ali (PW-5), and his mother, namely Hazrat Bibi, was travelling in a motorcar bearing registration No. WN 638, which was being driven by him, and when they reached the place of occurrence, the

appellant, namely Bilawal, collided his car with that of the complainant. On this, the complainant deboarded from the vehicle and asked the appellant to drive his car on the roadside. Thereafter, when the complainant returned and sat on the driving seat, the appellant came towards him, pulled out a pistol from the fold of his shalwar, and asked him as to who he was to ask him to come out from the car and, in the meanwhile, at once, he made fire upon him, due to which he sustained injuries on his abdomen. The motive was stated to be the collision of the motorcar, whereas the occurrence was stated to have been witnessed by Amjad Ali (PW-5) and Hazrat Bibi; hence, the instant FIR.

5.In order to prove its case, the prosecution has relied on the ocular account furnished by the respondent/complainant Hilal (PW-4) and eye witness of the occurrence, namely Amjad Ali (PW- 5). The prosecution has also relied on the medico- legal evidence produced by Dr. Shahid Khan (PW-

1)and Dr. Omer Ihsan (PW-8). Besides this, the prosecution has also relied on the circumstantial material collected during the course of investigation, and now, this Court, being an appellate Court, would proceed to evaluate and analyze the same in order to ascertain that as to whether the prosecution has

been able to bring home the charge against the appellant/convict or not.

6.In order to substantiate the instant occurrence through an ocular account, the prosecution has produced the complainant/victim, namely Hilal, as PW-4, who has supported the case of prosecution in all material particulars, i.e., qua the mode and manner of occurrence, the role attributed to the appellant, and the injuries sustained by him.

His narration of facts has also been supported by other circumstantial evidence as well as by the statement of Amjad Ali. The said Amjad Ali has also appeared in the witness box as PW-5 and who has also fully supported the case of the prosecution in all manners. He has endorsed the factum of the verification of the report lodged by the complainant and further deposed that on 05.04.2024, a bullet was extracted from the body of the complainant, which was taken into possession by the Investigating Officer (I.O), besides blood-stained clothes, to which memos he is also a marginal witness. The said PW has also made pointation of the place of occurrence to the I.O. Both these PWs were subjected to lengthy and searching cross- examination by the defence counsel; however, nothing material could be extracted from their

mouths so as to create any dent in the prosecution's case; rather, through such cross-examination, the prosecution’s case has been further strengthened.

In a situation akin to the present one in the case1, the Hon’ble Apex Court has held that we have gone through the statements of PWs and find them in a comfortable and confident unison on all the salient aspects of the raid as well as details collateral therewith. Learned counsel for the petitioner has not been able to point out any substantial or major variation or contradiction in their statements that may possibly justify excluding their testimony from consideration. On the contrary, it sounds straightforward and confidence inspiring without a slightest tremor.

7.During the course of arguments, one of the ground raised by the learned counsel for the appellant was that, though Hazrat Bibi, the mother of the complainant/victim, was accompanying the complainant/victim at the relevant time, yet she has not been produced and, therefore, he was pressing hard for the benefit of her non-production; however, since the occurrence has also been witnessed by Amjad Ali (PW-5), who was accompanying the “Shabbir Hussain v/s The State” reported as 2021 SCMR 198,

complainant/victim at the relevant time and who, as discussed hereinabove, has furnished a consistent and confidence inspiring evidence fully in line with the statement of the complainant/victim Hilal, therefore, mere non-production of Hazrat Bibi would not be fatal for the prosecution case and is of no benefit for the appellant.

8.In order to further substantiate the case, the prosecution has also been able to prove the instant occurrence through medical evidence and in this regard, the prosecution has produced Dr. Shahid Khan as PW-1 and who has submitted his detailed medico-legal report, which was exhibited as Ex.PW- 1/1, whereby it has specifically been mentioned that the victim has received a firearm injury on the anterior abdominal wall on the right side of the umbilicus, with no exit wound on the posterior aspect of the left thigh. He has also reproduced the opinions of the Orthopedic, Vascular and Radiological Department and has further categorized the injuries sustained by the complainant/victim as Ghair Jaifa Mutalahima, Ghair Jaifa Hashimah, etc. The said doctor has also been subjected to cross-examination by the defence counsel; however, he has not been able to extract any favorable material and as such there is no

reason with this Court to disbelieve the aforesaid medical evidence being of confirmatory nature to the prosecution version.

9.It would also be relevant to mention here that it was specifically the case of complainant/ victim, as set up in the very Murasila, that after the collusion of the vehicles, he came out of the car and asked the appellant to drive on a roadside and then returned and sat on the driving seat, whereafter the appellant came and made fire at him, which clearly suggests that, at the relevant time, the complainant/ victim was in a sitting position, whereas the appellant was in standing position and as such the medico-legal report as furnished by PW-1, namely Dr. Shahid Khan, would show that the complainant/ victim has received an entry wound on the anterior abdominal wall on the right side of the umbilicus, and the bullet has travelled towards the lateral upper side of the body and thus the medical evidence is fully in line with the ocular account furnished by the prosecution witnesses.

10.Since the condition of the complainant/ victim continued to deteriorate day by day after receiving firearm injuries on the vital part of his body, i.e., the abdomen, therefore, after receiving

treatment at KTH and LRH, he was shifted to Shifa International Hospital, Islamabad, where he underwent several surgeries under general anesthesia and in this regard, the prosecution has produced Dr. Omer Ihsan as PW-8 and who has also recorded a detailed statement qua the injuries suffered and the agonies undergone by the complainant/victim during the period of his hospitalization at Shifa International Hospital, Islamabad and as such the prosecution has also been able to prove its case with the support of medical evidence.

11.The prosecution has also been able to prove its case through circumstantial evidence, as it is part of the record that an empty of .30 bore was recovered from the scene of occurrence, which was taken into possession vide recovery memo Ex.PW- 3/1, and it is also part of the record that a pistol was recovered from the room of the present appellant/ convict, and when the said pistol along with the recovered empty was sent to the FSL, the report thereof, Ex.P/Y, would show that the recovered empty had been fired from the pistol recovered from the possession of the appellant/convict.

12.It is also part of the record that during surgery of the complainant/victim at Shifa International Hospital Islamabad, a spent bullet was extracted from the body of the complainant/victim, which was taken into possession vide recovery memo Ex.PW-7/6. Similarly, the blood-stained clothes having bullet marks on the shirt and undershirt were also taken into possession vide memo Ex.PW-7/5. Likewise, the motorcar being driven by the complainant/victim at the relevant time was also taken by the I.O. vide recovery memo Ex.PW-3/2 and thus the prosecution has also been able to prove its case through ocular as well as strong circumstantial evidence against the appellant/convict as punishable under sections 324, 337-F(iii) and 337-F(v) PPC.

13.As far as the conviction of the appellant under section 336 PPC is concerned, the same does not appear to have been properly recorded on the available evidence. In order to comprehensively deal with this aspect of the case, it would be advantageous to mention that five kinds of hurts have been enumerated in Section 332 PPC, whereas the kind of hurt, namely Itlaf-i-udw ()اتلاف عضو, has been defined in section 333 PPC, while the phrase Itlaf-i-salahiyyat-i-udw )اتلاف صلاحيت

( عضوhas been defined in section 335 PPC. For ready reference, sections 333 and 335 are reproduced below;

“333. Itlaf-i-udw. Whoever dismembers, amputates, severs any limb or organ of the body of another person is said to cause Itlaf-i-udw.

335.Itlaf-i-salahiyyat-i-udw. Whoever destroys or permanently impairs the functioning, power or capacity of an organ of the body of another person, or causes permanent disfigurement is said to cause Itlaf-i-salahiyyat-i-udw.”

The plain reading of the aforesaid

provisions would show that hurt would fall within the ambit of Itlaf-i-udw ( )اتلاف عضوwhere any limb or organ of the body has dismembered, amputated, or severed, or if the functioning, power, or capacity of an organ is destroyed or permanently impaired, or permanent disfigurement is caused, then such hurt would fall within the ambit of Itlaf-i-salahiyyat-i-udw ()اتلاف صلاحيت عضو, which is punishable under section 336 PPC through award of Arsh; and in the present case, the learned trial Court has awarded half of the Diyat amount as Arsh; however, the prosecution has not been able to bring on record any evidence to establish that as to which organ of the complainant/victim has permanently lost its

salahiyyat ()صلاحيت, as the medical report Ex.PW- 1/1, furnished by Dr. Shahid Khan (PW-1), merely reflects that there were fractures as per the orthopedic opinion, absence of sensation in the left toes as per the vascular opinion, and a comminuted fracture as per radiological opinion; however, such injuries or temporary absence of sensation in the left toes, by themselves, would not ipso facto constitute Itlaf-i-Salahiyyat-i-Udw. Neither PW-1 Dr. Shahid Khan nor PW-8 Dr. Omer Ihsan have uttered a single word to the effect that any organ of the complainant has permanently destroyed or its functioning has permanently impaired. Likewise, when the complainant/victim, namely Hilal, appeared before the Court as PW-4, he too did not utter a single word regarding any permanent disability suffered by him as a consequence of the firearm injuries; therefore, in the given facts and circumstances of the case, the prosecution has not been able to prove its charge against the appellant/convict under section 336 PPC. In the case2, the Hon’ble Sindh High Court has held that as per medical certificate, the organ of body of complainant Le. eye neither has been destroyed or permanently impaired its vision nor it has been “Amjad Ali vs. State” reported as 2018 MLD 57

permanently disfigured, therefore the case does not fall under the penal provision that is section 336, P.P.C. This Court in the case3 has held that the complainant has failed to prove destruction or permanent impairment of the functioning, power or capacity of his eye due to alleged incident. Thus, section 336, P.P.C. is not applicable, keeping in view the above mentioned facts and circumstances of the case. Similarly, this Court in another case4 has held that at trial, the prosecution did not produce an iota of evidence regarding Atlaf-e-Salahiyat-e- Udw and rather did not bother to either produce or exhibit the so-called medical certificate in support of its evidence. On the contrary at the trial, the doctor negated this version and no question from prosecution side was put to him regarding Atlaf-e- Salahiyat-e-Udw of complainant. Therefore, in absence of any proof the impugned conviction passed under section 336, P.P.C. is liable to be set- aside. Likewise, the Hon’ble Balochistan High Court in an unreported case titled “Azeem Shah and others vs. The State” has held that there is nothing in the medical report Ex.P/5-A to indicate that the injured was permanently incapacitated because of “Ashraf Khan vs. Zaffar Iqbal” reported as 2015 YLR 27 “Muhammad Taj vs. State” reported as 2011 YLR 261

this injury. Thus, no record with regard to itlaf-i- salahiyyat-i-udw for an offence punishable under Section 336 PPC has so far been brought on record by the prosecution therefore, their conviction under Section 336 PPC is not sustainable.

14.As far as connected Criminal Revision No.

53-P of 2026, filed for enhancement of sentence, is concerned, the record would show that the occurrence has taken place at the spur of the moment due to collision of the vehicles of the appellant and the complainant/victim and as such there was no premeditation on the part of the appellant/convict. Similarly, the appellant/convict has made only a single fire shot and has not repeated the fire shot; therefore, the learned trial Court has properly attended to all attending circumstances of the case while awarding the impugned sentence to the appellant/convict.

15.For what has been discussed above, the instant appeal is partially allowed, and the impugned order/judgment of learned Judicial Magistrate-IV, Takht Bhai, Mardan dated 27.01.2026 is maintained to the extent of punishment recorded against the appellant/convict under sections 324/337-F(iii)/337- F(v) PPC; however, to the extent of conviction and

sentence awarded to the appellant/convict under section 336 PPC, as recorded in Para No.21(ii) thereof, is hereby set aside. The benefit of section 382-B Cr.P.C is also extended to the appellant/ convict, whereas the remaining conviction and sentence awarded to the appellant/convict are maintained and as a result thereof, the connected Criminal Revision No.53-P of 2026, filed by the petitioner/complainant for enhancement of sentence, stands dismissed.

Announced:

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan (Shahid Nawaz, Steno)