Shahib Ullah Vs The State etc

CRA1091-2023 SHABIB ULLAH VS AYUB KHAN CF PGS35 USB.pdf

7ud'gment Slieet

PESHAWAR HIGH COURT, PESHAWAR.

(JUDICIAL DEPARTMENT)

Cr.A.No.1091-P/2023.

Shabib Ullah Vs. The State etc.

JUDGMENT

Date of hearing 02.04.2024.

Appellant by: Mr.Shabbir Hussain Gigyani, Advocate.

State by: Mr.Ayub Zaman, A.A.G.

Complainant by: Mr.Abdur Rauf, Advocate.

SAHIBZADA ASADULLAH, J:- This criminal appeal is directed against the judgment dated 31.05.2023 passed by the learned Sessions Judge, Hangu, whereby the accused/appellant involved in case FIR No.622 dated 11.09.2021 registered under section 302 PPC read with section 15 of The Khyber Pakhtunkhwa Arms Act, 2013 at police station Doaba, District Hangu was convicted and sentenced in the following manner:-

"Under section 302 (b) PPC for the murder of deceased Mst.Abida Bibi to imprisonment for life with compensation of Rs.400,000/- to be paid to the legal heirs of deceased under section 544-A Cr.P.C, recoverable as arrears of land revenue. In default of payment whereof, accused has to further undergo S.I for six months. Accused is further convicted under section 302 (b) PPC for the murder of Shakil-ur-Rehman and sentenced to imprisonment for life with compensation of Rs.400,000/- to be paid to the legal heirs of the deceased under section 544-A Cr.P.C, which shall be recovered as arrears of land revenue. In default . of payment whereof,

accused has to further undergo S.I for six months.

Under section 15 AA to undergo imprisonment for three years with fine of Rs. 100,000/- and in case of non-payment of fine, he was directed to further undergo S.I for six months.

. All the sentences were directed to run concurrently."

2.Facts of the case, in brief, are that on 11.09.2021, complainant Ayub Khan P.W.11 present with the dead bodies of Shakil-ur-Rehman and Mst.Abida (wife of the accused/ appellant) in the Emergency Room of Faizan Hospital Darsamand reported the matter to the local police to the effect that on the eventful day, he along with his son Daud Khan had gone to the house of his daughter Mst.Abida (deceased) and was present in the courtyard when in the meanwhile, heard hue and cry from the room of his son-in-law Shabib Ullah (accused/appellant). When the complainant along with his son Daud entered the room, the accused fired at Mst.Abida (daughter of the complainant) with Kalashnikov with the intention to commit her Qatl-e- Amd, as a result of which she got hit and died on the spot, whereafter the accused started running. The complainant chased him for the purpose of catching, but the accused also fired at his brother Shakil-ur- Rehman (brother-in-law of the Mst.Abida) with which he got hit and died on the spot. Motive behind the

occurrence was stated to be dispute over hand pump. Consequently, on the report of complainant, a case vide FIR No.622 dated 11.09.2021 under section 302 PPC read with Section 15 AA was registered against the appellant at police station Doaba, District Hangu.

3.After completion of investigation, complete challan against the appellant was submitted before the learned trial Court, which indicted him for the offence to which he pleaded not guilty. In order to prove its case, prosecution examined 15 witnesses, whereafter statement of the accused was recorded under section 342 Cr.P.C wherein he professed his innocence. After conclusion of trial, the learned trial court while appreciating the evidence in its wisdom had found the appellant guilty of the charge and whilst recording his convictioa, sentenced him as mentioned above, whereagainst he has filed the instant appeal.

4.The learned counsel for the parties as well as the learned A.A.G were heard at length and with their valuable assistance the record was scanned through.

5.It was on 11.09.2021 when the deceased after receiving firearm injuries died on the spot and the dead bodies were shifted to the hospital, where

the matter was reported. After the report was made the inquest reports and injury sheets were prepared.

The dead bodies were sent for postmortem examination. The investigating officer after receiving copy of the FIR visited the spot and on pointation of the eyewitnesses prepared the site plan. During spot inspection the investigating officer collected blood through cotton from place of the deceased Mst.

Abida and blood stained earth from place of the deceased Shakeel-ur-Rehman. The investigating officer also took into possession two spent bullets near from the place of the deceased Mst. Abida and 07 empties of 7.62 bore from the place of the accused. It is pertinent to mention that the investigating officer also took into possession an axe which was used for breaking the intervening door between the two rooms and he also observed bullet marks over a cupboard lying in the room. Not only this, but the investigating officer also noted bullet marks on the bed and the bed sheet. As the deceased Shakeel-ur-Rehman received firearm injuries outside the house, so the investigating officer collected 04 empties of 7.62 bore from point 4-A, as per report the accused/appellant after killing the deceased Mst. Abida, chased the deceased Shakeel- ur-Rehman and fired at him from point 4-A. The

investigating officer alongwith SHO of the concerned police station, on the next day of the incident raided the house of the appellant and the appellant was arrested near from his house and from his personal possession a Kalashnikov alongwith live cartridges and from the fold of his trouser a .30 bore pistol was secured. On one hand in respect of the recovered weapon Section 15-AA was inserted, whereas on the other the recovered weapon alongwith the collected empties was sent to the firearms expert to ascertain as to whether the empties were fired from the recovered weapon or otherwise. A report was received, telling that the same were fired from the recovered weapon. The appellant faced the trial and on conclusion of the trial the learned trial Court was pleased to convict and sentence him vide the impugned judgment.

6.The learned trial after appreciating evidence on file, found the appellant guilty and as such he was convicted and sentenced. No doubt, the unfortunate incident claimed the lives of two innocent persons, but this is for the prosecution to prove that it was the appellant who killed the deceased and that the incident was witnessed by the eyewitnesses. There is no denial to this fact that the incident claimed the lives of two, but it is not the severity of the matter to

determine the fate of the appellant, rather it is the evidence on file which must determine the innocence or the guilt of the appellant. This Court is to see as to whether the learned trial Court was justified in holding the appellant responsible for the murders of the deceased and as to whether the impugned judgment finds support from the evidence on file. We deem it essential to scan through the record and to re-assess the evidence on file, so that miscarriage of justice could be avoided.

7.The points for determination before this Court are that; as to whether the incident occurred in the mode, manner and at the stated time; as to whether the witnesses were present in the house before the incident, at the time of incident and in the hospital at the time of report; as to whether the medical evidence supports the case of the prosecution and as to whether the prosecution succeeded in bringing home guilt against the appellant.

8.In order to appreciate the manner in which the incident occurred, we deem it essential to go through the statements of the witnesses and also through the circumstantial evidence in the shape of recoveries from the spot, the relationship between the deceased and the accused and also the

laboratory report which confirmed that the recovered empties were fired from the recovered weapon. As the complainant claimed to have seen the incident and the eyewitness as well, so we deem it essential to go through their statements. The complainant was examined as PW-11, who stated that on the day of incident he and the eyewitness visited the house of his daughter i.e. the deceased; that while present in the house they heard noise from inside the room;

they went inside and found the appellant armed with a Kalashnikov, who fired at the deceased; that after making firing at the deceased the appellant ran out of the room and he followed; that on reaching to point 4-A the appellant fired at the deceased Shakeel-ur- Rehman, who also received firearm injuries, fell on the ground and died on the spot. The eyewitness was examined as PW-12, who also supported the report of the complainant and he also explained the circumstances in which the unfortunate incident occurred. As the eyewitnesses claimed themselves to have seen the incident, so it is for them to establish their presence on the spot and it is for them to convince that the incident occurred in the stated manner. It is pertinent to mention that the motive was disclosed a dispute over the water pump situated outside the house. The witnesses were cross-

examined and they were questioned regarding the time of their arrival in the house, regarding the manner in which the deceased Mst. Abida received firearm injuries, regarding the death of the deceased Shakeel-ur-Rehman and regarding the manner in which the dead bodies were shifted to the hospital. It is interesting to note that the witnesses disclosed that soon after their arrival into the house, they heard noise from inside the room, they rushed towards the room and in their immediate presence the appellant fired at the deceased. It disturbs the judicial mind of this Court that what a co-incidence this was that the witnesses reached to the house a little before the incident and soon thereafter the unfortunate incident occurred. As the witnesses could not tell that what altercation between the deceased Mst. Abida and appellant took place before the incident, as it was soon after their arrival that the incident occurred. The complainant could not convince the real cause of the tragic incident and the manner, in which the motive is introduced, could not be proved.

9.It is pertinent to mention that the investigating officer, during spot inspection, collected an axe from inside the room and he also observed that the intervening door between the rooms, was broken with its help. If the witnesses were present in

the house and when the incident occurred just after two minute of their arrival, then at what time the axe was used and at what time the door was broken. The witnesses are to tell that when they rushed inside the room and when they found the appellant at point No.4, who fired at the deceased, then what for the door was broken, when the said was already open.

The witnesses struggled hard to establish their presence on the spot and· they tried their level best to bring in line their statements with the circumstances of the case, but they failed to bring a harmony between their statements and the circumstances of the case. It troubles that when the accused/appellant was firing at the deceased and when both the complainant and eyewitness had already reached from point 1 and 2 to Point 1-A and 2-A i.e. close to the appellant, then why the appellant was not overpowered, either before he fired or after the firing was made. It is the case of the prosecution that after making firing over the deceased, the appellant ran out of the house and the complainant chased him.

The complainant was asked regarding this particular aspect of the case, who categorically stated that he did not care for his life, rather he wanted to overpower the appellant, so he chased. When the complainant was ready to run the risk to his life, then

instead of chasing the appellant out from the house, he and his son would have easily overpowered, as the eyewitness was only 35 years old. The explanation tendered by the complainant does not appeal to mind, and his this explanation has questioned his veracity and his presence on the spot at the stated time.

10.The record tells that one of the deceased lost her life inside the room of her house, whereas the second deceased was done to death at a distance of 200 paces from the house, so the circumstances suggest that the deceased Shakeel- ur-Rehman was found in the room, the room was locked from inside and the appellant used the axe to break open the door. We can gather from record that when the appellant was struggling to break the door, the deceased Shakeel-ur-Rehman succeeded in leaving the house and the appellant after killing the deceased went out of the house, found Shakeel-ur- Rehman and fired at him. As deceased Shakeel-ur- Rehman received two firearm entry wounds on his back, so the record suggests that he was fired at from his back. Though, the eyewitnesses could not convince regarding the manner in which the incident occurred, yet this Court is to see as to whether the incident was witnessed or the incident went

unwitnessed. As these were the eyewitnesses, who took the burden to prove, on their shoulders, so under all circumstances the complainant and the eyewitness is supposed to convince that the incident occurred in the stated manner. As the presence of the complainant and the eyewitness does not appeal to mind and as the circumstances suggest that the incident did not occur in the stated manner, so this Court is to determine that in case the eyewitnesses failed whether in that eventuality the circumstances of the case by itself would be sufficient for holding the appellant responsible for the tragic incident. The similar circumstance came before the Apex Court in case titled "NAZIR AHMAD Versus The STATE", (2018 SC MR 787), which reads as follows: - "We have attended to this aspect of the case with care and have found that when every other piece of evidence relied upon by the prosecution has been found by us to be utterly unreliable then the appellant could not be convicted for the alleged murder simply on the basis of a supposition. The principle enunciated in the above mentioned cases of Saeed Ahmed v. The State (2015 SCMR 710) and Arshad Mehmood v. The State (2005 SCMR 1524) was explained further in the cases of Nasrullah alias Nasro v. The State (2017 SCMR 724) and Asad Khan v. The State (PLO 2017 SC 681) wherein it had been clarified that the above mentioned shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself is not reliable and where the prosecution fails to produce any believable evidence. It is trite that in

all such cases the initial onus of proof always lies upon the prosecution and if the prosecution fails to adduce reliable evidence in support of its own case then the accused person cannot be convicted merely on the basis of lack of discharge of some part of the onus on him."

11.:. There is no cavil with the proposition that the prosecution under all circumstances is to prove it's case and that the burden never shifts. True that the accused is under the ~bligation to discharge his liability provided he takes a specific plea. As in this particular case, no defense plea was taken and even the appellant did not confess his guilt, so the witnesses must convince their presence on the spot and the prosecution must discharge the burden. The complainant disclosed in his report that he and eyewitness came to the house to enquire the wellbeing of his daughter and that soon after their arrival the unfortunate incident occurred. As the incident did not occur in the mode and in the manner, so the presence of the witnesses in the house at the stated time does not appeal to the judicial mind of this Court. Both the witnesses could not convince the manner in which they saw the incident and even they could not convince that what altercation took place between the deceased and the appellant, before she was fired at and that how the deceased Shakeel ur Rehman was chased by the

appellant and wherefrom. As admittedly, the distance between the appellant, inside the room, and the witnesses was very close, so the witnesses had the opportunity to overpower the accused, either before or after the firing was made, but they did not and an opportunity was provided to the appellant to leave the house. It is interesting to note that the complainant in his Court statement disclosed that he chased the appellant after the incident to overpower him and he also disclosed that he did not care for his life, rather he wanted to catch hold of the appellant..

It is interesting to note that when the complainant was so eager to overpower the appellant, then he and his son i.e. the eyewitness had the opportunity to overpower the appellant inside the room, but they did not. It is their conduct which questions their presence on the spot. Conduct displayed by the witnesses does not convince their presence on the spot and it does not convince that the incident occurred in the stated manner. Once this court comes to a conclusion that the eyewitnesses were not present on the spot, then this Court is left with no other evidence, but to determine the fate of the appellant by focusing the relationship between the appellant and the deceased alongwith the circumstantial evidence. This Court is to see, as to

what for the deceased was killed and that what for the appellant killed his real brother. It was agitated by the learned counsel representing the respondent that in case the eye witness account fails even then the appellant is under the liability to discharge the burden, as he was the husband of one of the deceased and real brother of the other. The submissions of learned counsel for the complainant were taken into consideration, but the learned counsel fell into error on this particular aspect of the case. As the complainant and eyewitness disclosed their presence on the spot house at the time of incident and as they claimed that the incident occurred in their immediate presence, so these were the witnesses who shouldered the responsibility and these are the witnesses to discharge the burden. As admittedly, the complainant and the eyewitness failed to convince their presence on the spot and as their arrival to the spot house is after the occurrence, so it was the prosecution who failed to convince the manner in which the incident occurred and it was the prosecution who failed to discharge the burden of proving. When such is the state of affairs, then we are inclined to hold that the burden never shifted to the appellant. We are confident in holding that liability to prove shifts only, when an accused takes a

specific plea for the commission of the offence, but as right from the beginning till the end no such plea was taken, so the appellant cannot be burdened with the liability, as by doing so we would attempt to change the set pattern, which has never been allowed by the superior Courts and by the law in field. We are sanguine that the unfortunate incident claimed the lives of two innocent persons, but that by itself would not be the determining factor. True that the relationship between Mst. Abida and the appellant cannot be ignored, as being husband and wife they were living under the same roof and that the appellant being husband should have taken measures for shifting the dead bodies and for reporting the matter, but as soon after the incident the eyewitnesses crept in and they specifically charged the appellant, then the only way open to the appellant was to leave the scene and to avoid his arrest. This case because of its peculiar circumstances is distinguishable from the ordinary cases, where a wife dies an unnatural death in the house of her husband, as the introduction of witnesses has changed the complexion of the case, so this Court is reluctant to make the ordinary approach. As the witnesses failed to prove their presence on the spot, so this Court is inclined to hold

that the burden was never discharged and that the same did not travel from prosecution to the appellant.

12.True that in the unfortunate incident one of the deceased lost her life inside the house of the appellant and the other outside, but equally true that the prosecution failed to convince that the incident occurred in the manner as reported and as disclosed by the witnesses, when they appeared before the learned trial Court. As the prosecution is left only with the circumstantial evidence, so that by itself would hardly be sufficient for holding the appellant guilty. It is pertinent to mention that when the investigating officer inspected the spot, he took into possession an axe and broken pieces of wood from inside the room, as intervening door between the rooms, was broken, by the appellant, with it's help.

When so, then this Court is anxious to know that when the firing was made two minutes after arrival of the eyewitnesses to the house, then at what time the door was broken and that what for, as according to the complainant the cause of killing was the timely altercation over the water pump. The circumstantial evidence so collected by itself is deficient and that it does not point towards the involvement of the appellant in the tragic incident. Even otherwise,

when the complainant and the eyewitness posed themselves to be the witnesses of incident, then the failure on their part to prove themselves on the spot, at the stated time has played a havoc with the prosecution case, so the circumstantial evidence could not form a well built chain touching the dead bodies of the deceased and the neck of the appellant. When the links are missing and when the eyewitnesses are disbelieved, then the prosecution is left with no evidence to point towards the guilt of the appellant. Reliance can be placed on "Naveed Asghar and 2 others Vs. The State" (PLO 2021 Supreme Court 600), which reads as follows:- "12. Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined. In cases like the present one that rest entirely on circumstantial evidence, it is of the utmost importance that the circumstances should be ascertained with minute care and caution, before any conclusion or inference adverse to the accused person is drawn. The process of inference and deduction involved in such cases is of a delicate and perplexing character, liable to numerous causes of fallacy. This danger points the need for great caution in accepting proof of the facts and circumstances, before they are held to be established for the purpose of drawing inferences therefrom. A mere concurrence of circumstances, some or all of which are supported by defective or inadequate evidence, can create a specious appearance, leading to fallacious inferences.

Hence, it is necessary that only such circumstances should be accepted as the basis of inferences that are, on

careful examination of the evidence, found to be well~established. A high quality of evidence is, therefore, required to prove the facts and circumstances from which the inference of the guilt of the accused person is to be drawn"

13.True that the appellant was arrested on 13.09.2021 and from his personal possession a Kalashnikov, which later on came out to be the weapon used in the offence, and a .30 bore, were recovered and equally true that when the collected empties were sent to the laboratory, alongwith the Kalashnikov, a report was received in positive, but we cannot ignore that the incident occurred on 11.09.2021, whereas the accused/appellant was arrested on 13.09.2021 and his arrest from the front of his house alongwith weapon of offence does not appeal to the prudent mind of this Court. In case, the accused committed brutal murder of two innocent persons, then under all circumstances he would have left the area, instead of running the risk of his arrest. The SHO did not associate independent witnesses at the time of recovery and even no explanation has been given in that respect that why no witness was associated and if anyone was asked to witness the recovery, and refused, then it was essential for the said police official to have

mentioned the same. Even otherwise, the safe custody of the recovered weapon, its safe transmission to the office of the firearms expert does not get support from the record. When the safe custody of the recovered weapon is not proved and when no independent witness was associated, so in our understanding this piece of evidence has lost its utility. Even otherwise, if this piece of evidence is taken into consideration, then in absence of trustworthy, confidence inspiring evidence, the same alone would hardly be a circumstance to fetch conviction to the appellant. Reliance can be placed on "NAVEED ASGHAR and 2 others Versus the STATE" (P L D 2021 Supreme Court 600), which reads as follows:-

"29. Even otherwise, recovery of weapon of offence is only a corroborative piece of evidence; and in absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case."

14.The medical evidence does not support the eyewitness account, as the injuries on the body of one of the deceased were having charring marks, and admittedly, the firing was made on the male

deceased, from a distance of 25 paces and that from such a long distance charring marks would not occur. This particular aspect of the case has further belied the stance of the complainant. The conflict between the ocular account and medical evidence is another circumstance which has damaged the prosecution case beyond repair. True that medical evidence is confirmatory in nature, but equally true that once the eyewitness account is disbelieved, then the medical evidence would hardly be a ground for convicting the appellant, even if the same rings true. The prosecution case is full of doubts and the benefit of the same can be extended to the appellant. As is held in case titled Najaf Ali shah Vs the State (2021 SCMR 736), wherein it is held that:- "The same view was reiterated in Abdul Jabbar v. State (2010 SCMR

129)when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."

15.The motive was stated to be a dispute over a water pump, situated outside the house of the appellant, the complainant could not explain that who had the dispute, whether it was a dispute between the husband and wife or between the

appellant and the male deceased, who was his real brother. If we admit for awhile that the dispute was over the water pump, then it troubles the judicial mind of this Court that what for the appellant killed his wife and his real brother, as in that eventuality the only target would be the male deceased, but killing of the lady deceased has added to the anxiety of this Court. We are confident in holding that the actual cause of killing was the illicit relationship between both the deceased and to avoid a stigma to the family, the complainant introduced this motive.

Though the complainant wanted to take shelter from earning a bad name to the deceased, who was his daughter, but his this attempt has damaged the prosecution case and the damage caused has given benefit to the appellant. As on one hand the cause of killing was the stated dispute, whereas on the other the prosecution failed to prove the same, so the failure of motive under these circumstances must be read in favour of the appellant. It is pertinent to mention that the investigating officer while preparing his case diaries explained the actual circumstances which led to the death ·of the deceased and he explained that the cause of killing was the illicit relationship between both the deceased.

16.The cumulative effect of what has been stated above, leads this Court to an irresistible conclusion that the prosecution failed to bring home guilt against the appellant and that the learned trial Court fell into error while handing down the impugned judgment. The impugned judgment is suffering from inherent defects which call for interference. The instant criminal appeal is allowed.

The impugned judgment is set aside and the appellant is acquitted of the charge leveled against him. He shall be released forthwith, if not required to be detained in any other criminal case.

Announced:

*lhsan PS*

JUDGE

(DB)Mr. Justice lshtiaq Ibrahim & Mr. Justice Sahibzada Asadullah