Salman Akbar Vs The State etc

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Criminal Appeal No. 868-P/2024 with Murder Reference No. 22-P/2024 Salman Akbar Vs The State etc

Date of hearing: 21.01.2026.

Appellant by: Mr. Muhammad Nouman Khan, Advocate.

The State by: Mr. Nouman-ul-Haq Kakakhel, AAG.

Respondent by: Syed Mubashir Shah, Advocate.

JUDGMENT

SAHIBZADA ASADULLAH, J.- Through this single judgment, we intend to decide the instant criminal appeal filed by the appellant Salman Akbar, as well as the connected Cr.A No. 892-P/2024, filed by the complainant, against the judgment dated 12.10.2024, rendered by learned Additional Sessions Judge-I, Takht Bhai, Mardan, in case FIR No.

723 dated 16.09.2021 under sections 302, 324, 109 PPC, registered at Police Station Saro Shah, Takht Bhai, Mardan, whereby the co-accused Mst. Nadia, got acquitted of the

charges, while the appellant was convicted and sentenced as under:

i. U/s 302 (b) PPC, convicted and sentenced to death as Tazir; he is to be hanged from his neck till death, subject to confirmation by the High Court, and to pay compensation amount to Rs. 1,000,000/- to the legal heirs of each deceased under section 544-A Cr.P.C. In default of payment, to suffer simple imprisonment of six (06) months.

ii. U/s 324 PPC, for ineffective firing over the complainant Ikram with murderous intent, to suffer rigorous imprisonment for three years as Tazir.

Benefit under section 382-B Cr.P.C was extended in favor of the appellant.

2.Concise facts of the case are that on 16.09.2021, the complainant Ikram, while present in THQ Hospital Ganji, along with the

dead body of his brother Luqman, reported the matter to the local Police, that on the eventful evening, when he and his deceased brother were on their way home after working in the fields and had reached the place of occurrence, their nephew Salman, suddenly emerged from the sugarcane crop, duly armed, and opened fire on them with the intent to kill; that his brother Luqman, sustained firearm injuries and died on the spot, while he fortunately remained unharmed.

The alleged motive ascribed is that the accused had been residing in the house of the deceased for the last two years, during which he allegedly developed illicit relations with the wife of the deceased, namely Mst. Nadia, and on her abetment committed the murder of the deceased. Hence, the instant FIR.

3.After completion of investigation, complete challan was submitted before the learned trial Court. Provisions of section 265- C Cr.P.C. were complied with from the appellant and acquitted co-accused, whereafter charge was framed against them,

to which they pleaded not guilty and claimed trial, so the prosecution was directed to produce evidence. In order to prove its case, the prosecution produced and examined as many as nine (09) witnesses and thereafter, the statements of accused were recorded under section 342 Cr.P.C. wherein, they professed innocence, however, neither opted to produce defense evidence nor wished to be examined u/s 340(2) Cr.P.C. On conclusion of the trial, the learned trial Court acquitted the co-accused Mst. Nadia, which has also been challenged through the connected Cr.A No.

892-P/2024, whereas convicted and sentenced the appellant in the manner quoted above, hence, the instant appeal.

4.Arguments of learned counsel for the parties, as well as of worthy Additional Advocate General heard and with their valuable assistance, the record scanned through.

5.The unfortunate incident claimed the life of an innocent soul. The deceased was promptly shifted to the hospital, where the

matter was reported by the complainant. The injury sheet and medico-legal report were duly prepared, and the dead body was sent for post-mortem examination. Upon receipt of the copy of FIR, the Investigating officer visited the spot and, upon the pointing of the eyewitness, prepared the site plan. During the spot inspection, blood was collected from the place where the deceased had fallen, and the Investigating officer also took into possession three empties of .30 bore lying scattered on the ground. The accused, along with the co- accused, was arrested on the following day.

Information regarding their presence in a graveyard was received by one Shahid Ali Khan, Sub-Inspector, who, along with police officials, visited the location, effected the arrest, and recovered a pistol from the possession of the accused. The initially collected empties were sent to the firearms expert, whose report indicated that they had been fired from a single weapon.

Subsequently, the empties, along with the recovered pistol, were re-examined, and a report confirmed that the same had indeed

been fired from the recovered weapon. Both the accused and co-accused faced trial. Upon conclusion, the appellant was convicted and sentenced, whereas the co-accused was acquitted. This Court is tasked with determining whether the learned trial court applied its judicial mind to the evidence on record, and whether the prosecution succeeded in adducing independent evidence in support of its case. It bears noting that the appellant, being the real nephew of the deceased and the complainant, presents a peculiar dimension, nevertheless, the singularity of the accused does not absolve the trial Court from its duty to evaluate the evidence with impartiality. Substitution in cases involving a single accused is admittedly rare, however, under all circumstances, the prosecution must prove its case, and the learned trial Court is obliged to assess the evidence objectively, irrespective of familial relationships or the number of accused. In the present matter, it is imperative that the statements of witnesses be reconsidered and

the evidence on record reappraised, so as to avoid any miscarriage of justice.

6.The points for determination

before this Court are as to whether the incident occurred in the stated manner and at the stated time; whether it was the complainant who reported the matter and whether the occurrence transpired in his immediate presence; whether the medical evidence supports the case of the prosecution and whether the prosecution succeeded in proving the guilt of the appellant beyond reasonable doubt.

7.Having regard to the attending circumstances of the case, we deem it appropriate to remit the matter for a meticulous examination of the statements of the witnesses and to take into consideration the inter se relationship between the parties. It is evident from the record, and self-admitted by the complainant, that the appellant is the real nephew of the deceased, who, therefore, was his maternal uncle, so this Court must consider that, on one hand, the relationship between the parties is close and, on the other,

the accused is singly charged. In such a situation, the question arises whether substitution is permissible. It is well-settled that substitution in cases of a single accused is a rare phenomenon, particularly where the parties are closely related. In order to appreciate whether the complainant was truly present at the scene, it is essential to scrutinize his statement. The complainant was examined as 09, and he described, in detail, the circumstances in which the unfortunate incident occurred. He explained the nature of the work being undertaken, the time at which he and the deceased were together, and the manner in which the accused appeared on the spot and fired at the deceased, resulting in the death of the deceased Luqman. The complainant was subjected to cross- examination on the essential aspects of the case, with the defense attempting to extract matter favorable to the appellant. This Court is called upon to determine whether the defense succeeded in creating any material dent in the case of prosecution. It is noteworthy that, from the outset to the conclusion of his testimony,

the complainant remained consistent regarding his purpose for being at the scene, and as to the fact that he had accompanied the deceased to perform routine work in the fields. The complainant was able to convincingly demonstrate that the place of occurrence lies within the vicinity of the fields, and the site plans, prepared upon his pointing, leave no ambiguity that the incident occurred at the stated location. The recovery of blood and empties of .30 bore further corroborates the case of the prosecution. While it is true that the prosecution case relies upon the solitary statement of a single eyewitness, it is equally settled that conviction can be based upon the testimony of a single witness, provided the witness establishes his presence at the scene and demonstrates credibility. In the instant case, on one hand, the parties are closely related, whereas, on the other, a maternal uncle has brought charges against his real nephew, so under such

circumstances, it is incumbent upon the defense to demonstrate that the witness was interested in falsely implicating the accused or

that he was not present at the scene at the stated time. It is also not denied that, apart from the charge regarding the acquitted co- accused, there existed no prior ill-will or grudge between the parties. It is apparent that suspicion arising from the alleged involvement of the appellant with the wife of the deceased precipitated the unfortunate incident. The record also reflects that the appellant had been residing in the house of the deceased for a considerable period of two years, and the possibility of tensions arising from such proximity cannot be discounted. In cases involving close familial relationships, the scrutiny of witness testimony must be conducted with utmost care. In the present matter, the complainant is the real brother of the deceased, and it was therefore imperative for the prosecution to establish that the witness harbored no malafide intention and had no personal interest to falsely implicate the accused. The defense failed to bring any material to the record in this regard, so in these circumstances, this Court is confident in holding that the credibility of the complainant

is beyond reproach, and that the testimony of such a witness can be relied upon, even as a single eyewitness, to form the basis of conviction. In the like circumstances we derive wisdom from the judgment of the apex Court reported as Qasim Shahzad & another Vs.

The State & others” (2023 SCMR 117).

“As a rule of criminal

jurisprudence, prosecution

evidence is not tested on the basis of quantity but quality of evidence. It is not that who is giving evidence and making

statement. What is relevant is what statement has been given and it is not the person but the statement of that person which is to be seen and adjudged. In Niaz-ud-Din v. The State (2011 SCMR 725), it was held that

conviction in a murder case can be based on the testimony of a single witness, if court is

satisfied that he is reliable and

it is the quality of evidence and not the quantity which matters.”

8.The dead body was hurriedly

conveyed to the hospital, where the matter was promptly reported. The doctor was examined as PW-05. He confirmed the arrival of the dead body, accompanied by the complainant, and further confirmed that, following the report, the injury sheet and FIR were prepared, after which the body was sent for post-mortem examination. The doctor was examined regarding the time of arrival of the deceased, the time of report, and the persons who accompanied the body to the hospital, however, no substantial contradictions could be elicited during cross-examination. Even when the time of occurrence is compared with the time of report, no ambiguity arises. The distance between the place of occurrence and the hospital could conveniently be covered within the stipulated time. This Court is not persuaded to accept the contention that the matter was reported belatedly or that the attendance of the witness was procured

artificially. The doctor further confirmed that the death was spontaneous, and the interval between death and post-mortem examination supports the prosecution stance that no time was lost either in shifting the dead body to the hospital or in reporting the matter to the police. Neither the prosecution nor the defense was able to demonstrate that the complainant was absent at the scene or at the hospital at the time of reporting, or that his attendance was subsequently procured after the body had already been brought to the hospital. As previously observed, the parties bore no previous ill-will, grudge, or blood feud.

In such circumstances, the contention of defense that the charge against the appellant, who is the real nephew of both the deceased and the complainant, was manufactured, or that the real culprits were shielded while the innocent accused was substituted, cannot be sustained. Any question of consultation or deliberation in charging the accused would only arise where prior animosity or malicious intent existed, neither of which is borne out on record. The quick succession of events, from

the firing, to the death of the deceased, to the shifting of the body to the hospital, and the subsequent reporting of the matter, leaves no doubt that the accused was promptly and directly charged, and that there was no question of mistaken identity. The doctor further explained the time at which the body was received and confirmed that he conducted the autopsy. Taken together, these facts establish that the matter was reported without delay, the accused was directly implicated, and the defense failed to prove that the real culprits were shielded by substituting an innocent person. The medical evidence is fully harmonious with the ocular account. Considering the position of the accused at the time of firing, the nature and location of injuries sustained by the deceased, and the prompt recovery of the body and related evidence, no ambiguity exists in reconciling the medical evidence with the eyewitness testimony. The ocular account inspires confidence, the witness was able to establish his credibility, and the medical evidence corroborates the prosecution case.

When read together, these essential pieces of evidence leave no conflict. While medical evidence is confirmatory in nature, its concurrence with a credible eyewitness account reinforces the prosecution version. In the present case, both ocular and medical evidence are in complete harmony, and such convergence lends further support to the case of the prosecution. In similar circumstances, we derive wisdom from the judgment of the apex Court titled “Aqil Versus The State”, (2023 SCMR 831), which reads as follows: - “The medical evidence available on the record further

corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and

injured is concerned. Even

otherwise, it is settled law that where ocular evidence is found trustworthy and confidence

inspiring, the same is given

preference over medical

evidence and the same alone is

sufficient to sustain conviction of an accused.”

9.The accused, along with the co- accused, were arrested on the day following the occurrence, based upon information received, from a graveyard. Upon arrest, a .30 bore pistol was recovered from the possession of the accused. Both the accused were taken into custody, and the appellant led the police party to the place of occurrence, pointing out various locations to the Investigating officer. The police officer responsible for the arrest, Shahid Ali Khan, SI, was examined as PW-08. He was questioned regarding the manner in which the accused were apprehended and the procedure of recovery, however, no substantial contradictions could be elicited during his examination. On the contrary, he convincingly explained the process of arrest, the circumstances of recovery, and how the recovered pistol was taken to and handed over at the Police Station. It is pertinent to note that the Investigating officer took

possession of the recovered pistol in the presence of the marginal witnesses. These witnesses, who were present at the time of both the arrest and the recovery, were examined and remained consistent in their testimony on all essential aspects of the case.

The recovery of the pistol was thus duly proved, and the witnesses convincingly explained the circumstances thereof.

Subsequently, when the recovered pistol was sent along with the collected empties of .30 bore, to the firearms expert, a report was received confirming that the empties had been discharged from the recovered weapon. This piece of evidence is of crucial significance in determining the circumstances surrounding the occurrence, particularly when read in conjunction with the statement of the complainant. It is true that a recovery report, in isolation, cannot establish the guilt of an accused, yet when the account of the accused is found to be biased, the recovery is duly proved, and the recovered weapon is safely transmitted to the firearms expert for examination, such evidence assumes

substantial probative value. In the instant case, this evidence, when considered alongside the other material on record, warrants careful consideration and is rightly deemed relevant to support the prosecution case. Reliance is placed on the judgment reported in Muhammad Hanif vs the State (2023 SCMR 2016) it has been held as under:

“The weapon of offence

recovered from the petitioner

was transmitted to the office of Forensic Science Laboratory

without any delay in its

dispatch. The report of Forensic Science Laboratory further

confirmed that the empties

recovered from the spot are

matched with the weapon

recovered from the appellant

which is positive in nature.”

10.The primary question for

determination before this Court is whether the

learned trial Court was justified in awarding the sentence imposed upon the appellant, and whether the alleged relationship between the acquitted co-accused and the appellant is established on the record. In order to appreciate this aspect of the case, it is essential to examine the allegations and the suspicion expressed in respect of an illicit relationship between the acquitted co-accused and the appellant. If the prosecution had successfully established such a relationship, it could have served as a motive for the tragic incident, however, as admittedly the co- accused was acquitted of the charge, it implicitly indicates that the learned trial Court did not believe, nor was the prosecution able to prove, the alleged illicit relationship. Where the asserted cause of the killing is not established, the case of the appellant must be considered in isolation. The prosecution case had suggested that the appellant, who had resided in the house of his maternal uncle for a prolonged period of two years, was motivated by lust arising from this alleged illicit relationship. It was on the basis of this

purported motive that the trial Court concluded and imposed the death sentence, however, in the absence of proof of such a relationship, the case of prosecution stands bereft of a concrete motive. Accordingly, this Court must consider whether the complainant was able to demonstrate the real cause which led the appellant to commit the killing. Since the allegations regarding the illicit relationship have not been substantiated, they cannot serve as the basis for a death sentence, therefore, the cause of the killing remains shrouded in uncertainty. When viewed in this light, the sentence imposed by the trial Court cannot be said to be commensurate with the circumstances of the case. Furthermore, in considering the age of the appellant and the absence of any definitive motive, it becomes apparent that the imposition of the extreme penalty of death was disproportionate. This Court is of the considered view that the approach of the learned trial Court in respect of the awarded sentence is not based on reasons and the same calls for interference.

The instant criminal appeal is partially allowed

and the sentence of death awarded to the appellant is reduced to that of imprisonment for life whereas, the remaining portion of the judgment is left undisturbed. The murder reference No. 22-P/2024 is answered in negative.

11.Now diverting to the connected Criminal Appeal No. 892-P/2024, which has been filed by the complainant against the acquittal of co-accused Mst. Nadia, as recorded in the impugned judgment. It is pertinent to note that in the initial report lodged by the complainant, the only allegation attributed to accused/respondent Mst. Nadia, was that of abetment, but there is nothing on record, either in the form of direct or circumstantial evidence, that could connect the accused Mst. Nadia, with the commission of the offence. Even otherwise, there is no material available to establish her presence at the place of occurrence at the relevant time, or to suggest that she participated in or facilitated the co-accused in the commission of offence, therefore, the approach adopted by the learned trial Court in acquitting the said

accused was correct, lawful, and free from any legal infirmity, and thus warrants no interference. The instant criminal appeal, being devoid of merit, is hereby dismissed.

Announced

Naqqash Haider

JUDGE

JUDGE

Division Bench.

Hon’ble Mr. Justice Sahibzada Asadullah, J. Hon’ble Mr. Justice Dr. Khurshid Iqbal, J.