Nawaz Khan alias Margha Vs the State

Judgmcnt Shcct

PESHAWAR HIGH COURT I}ANNU BENCH

(.Iudic ia I De partme nt )

Cr.A No.l3-li of 2023

Nawaz Khan alias Margha Vs Thc State ctc

JUDGMENT

lror appcllant M/s Faqir Mchboob-.ul-Hamid and Huiiat Ullah Khan, Advocatcs

Iior rcspondcnts: Haii llamayun Khan Wazir Advocate lror Statc: Mr. Umcr Qayvum. Asstt. A.G.

I)atc ofhcaring: 31.0s.2023

DR. KHURSHID IOBAL, J.--- Ily this singlc judgmcnt wc intcnd to disposc of thc subjcct criminal appcal (No. 13 -lr/2023) and thc conncctcd criminal appcal (No.l9-1112023). Iloth havc ariscn out of thc samc criminal casc which thc trial cou( dccidcd by its judgmcnt rcndcrcd on 12.01.2023. Samiullah (appcllant in thc conncctcd appcal; hcrcinaltcr "complainant") rcgistcrcd thc casc against Nawaz. Khan alias Margha (accuscd- convict; hcrcinaflcr "appclleurt" in thc subjcct appcal). 'l'hc complainant chargcd thc appcllant undcr scctions 3021324,PPC in I'olicc Station, Lakki Marwat, at thc strcngth o[ l;lR No'267, on 18.07.2018.'l'hc Additional Scssions Judgc-lll/Modcl Criminal 'l'rial Court (MC'I'C) in Lakki Marwat, conductcd thc

trial of thc appcllant. Shc conviclcd thc appcllant undcr scction 302 (b), PPC, and acquittcd him lrom thc chargc undcr scction 324, l'ltc. Shc rccordcd thc conviction and scntcncc in thc lollowing tcrms:

Thc accuscd facing trial namcly Nawaz Khan alias Margha s/o Nazar Khan is convictcd undcr scction 302(b) l'PC and scntcnccd to death as tatzir.

Convict Nawaz Khan shall bc hangcd by thc neck till he is dead and has bcen conlirmcd to bc dcad by thc mcdical officcr in thc prcscncc of .ludicial Magistratc on duty in jail. Howcvcr, this conviction is subjcct to confirmation by thc august Pcshawar High Court. Thc convict shall also bc liable to pay Rs.10,00,000/- as compcnsation to thc lcgal hcirs of dcccascd Abdur Rchman u/s 544-A Cr.PC and in casc of dcfault, hc shall furthcr undcrgo simplc imprisonmcnt for six months.

2.'l'hc first inlormation ol thc casc was fumishcd by thc complainant ln thc l')mcrgcncy Itoom o[ thc llural Ilcalth Ccntre (IUIC) of Gambila 1own, whcrc hc had takcn thc dcad body ol onc Abdur llahman, his ncphcw. 'l'hc inlormation was that on 18.07.2018, thc complainant and Abdur Itchman, was on thc way back homc aftcr taking carc ol thcir ficlds. Whcn thcy rcachcd ncar thc (iovcrnmcnt l)rimary School (Malc) Kotka Gul Zallar Khwaja Khcl, at about 18:35 hours, thc appcllant, thcir co-villagcr, duly armcd with a Kalashnikov,

camc thcrc on a motorcyclc (CD-70). 'l'hc appcllant alightcd lrom thc bikc. I lc startcd firing at thcm. As a rcsuh of his firing, Abdur I{ahman was hit and fcll on thc ground; thc complainant luckily cscapcd unhurt. Soon allcr lhc occurrcncc, thc appcllant dccampcd lrom thc crimc sccnc. Motivc thc complainant discloscd was that thc appcllant wantcd what hc tcrmcd as .friendship with thc dcccascd which thc dcccascd had dcclincd.

3.A[1er complction of invcstigalion, complclc challan was put for trial against thc appcllant. 'l'hc trial cou( supplicd copics ol' the rclevant documcnts to thc appcllant undcr scction 265-C Cr.l'.C. Chargc was framcd against thc appcllant undcr 302, PI'}C, for qatl-i-amd of Abdur Itahman and undcr 324, PPC, for incflcctivc firing at thc complainant, t<l which hc plcadcd not guilty and prol'csscd innoccncc. 'l'hc prosccution cxamincd 12 witncsscs. 'l'hc appcllant was cxamincd undcr scction 342 Cr.P.C, whcrcin hc dcnicd thc chargcs and rcfuted thc cvidcncc of' thc prosccution. I lc didn't avail thc opportunity to rccord cvidcncc in dcfcncc or to givc statcmcnt on oath within thc rncaning of scction 340(2) Cr.l'}.C. Aftcr hcaring argumcnts of thc prosccution and dcfcncc, thc trial court convictcd thc appcllant undcr 302 (b), PPC, as pcr thc dctails slated abovc, and acquittcd him lrom thc chargc undcr 324, PPC

4.Wc havc anxiously considcrcd thc submissions advanccd at thc bar and pcruscd thc rccord.

5.'l'hc prosccution casc primarily dcpcnds on thc ocular account thc cornplainant furnishcd as thc solc cyc witncss oflhc occurrcncc (PW8). Ior thc sakc ol brcvity, wc would avoid rcpcating his statcmcnt rccordcd as cxam ination-in-chicL 'l'hc samc mostly rcitcratcs thc story of thc incidcnt narratcd in thc l;lR. Wc would cvaluatc his statcmcnt undcr cross cxamination instcad in which thc dclcncc cndcavourcd to cslablish that hc was not prcscnt on thc crimc sccnc, and/or that hc was an intcrcstcd witncss. Kcy aspccts of his cross cxamination rclatc 1o

o 'I'hc colour of thc motorcyclc of thc appcllant;

o l)isclosurc of the crimc sccnc, most particularly the directions;

r Thc arrival of Wahccdullah, his brothcr (PW7) at thc crimc sccne and thc shifting of thc dcad body of thc deccascd to thc hospital;

o Thc attraction of othcr pcoplc to thc crimc sccnc;

o Thc occurrcncc of thc dcath of thc dcceascd on thc crimc sccncl and o The production of thc rccord of rights of thc ficlds (thc land) which he had gonc to look aftcr alongwith thc dcccascd.

6.'l'hc complainant rcplicd that at thc timc of thc rcport, thc policc official did not ask him about thc colour of thc motorcyclc ol thc appcllant. I Ic addcd that during thc invcstigation also, hc did not disclosc thc colour of thc

motorcyclc. livcn thcn hc statcd that thc motorcyclc o[ thc appcllant was of black colour. 'l'his lact was not dispulcd anymorc. As rcgards thc disclosurc ol thc dircctions in thc IrlR, hc rcplicd in thc aflrrmativc. lt is an cstablishcd judicial vicw that an lllt is not supposcd to rcflcct thc story of thc commission of thc crimc in minutc dctails. 'l'hc purposc is to lurnish thc vcry first inlormation rcgarding thc commission of an offcncc. Indccd, many morc dctails arc to comc lorward during the invcstigation. I lowcvcr, hc was furthcr challcngcd on bcing askcd a couplc of'qucstions. Ilclorc wc considcr his rcplics in this rcspcct, wc may makc rclcrcncc to thc sitc plan (lix.Pl)). A closc rcading of thc sitc plan would show that thc occurrcnce took placc on a Kacha path, lcading to thc villagc of thc complainant party. 'l'hc crimc sccnc is situatcd to thc north o[ a Pakka road, lcading to Khwaja Khcl and 'l'ajazai. 'l'hc party was moving lrom southwcst towards

%,".:::^::: orning back to thc statclncnt ol'thc complainant, it appcars that hc was ablc to statc thc dircctions corrcctly. As his dcposition cvinccs:

Our villagc is situatcd towards cast to thc spot of occurrcncc. I havc pointcd out thc spot to the I.O which is corrcct with all its footnotcs. Thc landed propcrty is situated towards wcst of thc placc of occurrcncc. 'l"hcrc is a mcttlcd lmctallcd I road ncar thc placc of occurrcncc. Thc lmctallcdl road is situatcd towards south of thc placc of

occurrencc at a distance of 30/40 paccs. This road is lcading from Tajazai to villagc Khwaja Khcl and Khcaja Khcl is towards cast of it. Thc villagc Tajazai is situated towards castcrn sidc.

7.As rcgards thc arrival ol Wahccdullah (l'W7) to thc crimc sccnc and shifting of thc dcad body to thc hospital, thc complainant dcposcd thal Wahccdullah (his brothcr) rcachcd to thc crimc sccnc on a motorcyclc within 4 to 5 minutcs of thc occurcncc. IIc furthcr dcposcd that his villagc is situatcd at a distancc of about 02 kilomctrcs lrom thc crimc sccnc. I Ic addcd that Wahccdullah managcd to bring a datsun pickup to thc crimc sccnc within 45 to 60 minutcs for shifting thc dcad body to thc hospital. Wahccdullah's tcstimony (PW7) nccds to bc cxamincd hcrc. Whcn cntcrcd thc witncss box, hc dcposcd in cxamination-in-chicf that hc idcntificd thc dcad body of thc dcccascd bcforc thc Mcdical Ofllccr. Whilc undcr cross cxamination, it was rathcr confirmcd liorn him that hc had rcachcd thc crimc sccnc at about 06.45 pm aftcr having bccn informcd by thc complainant; hc accompanicd thc complainant lrom thc crimc sccnc whilc thc dcad body was bcing shiltcd to thc hospital and that thc dcad body was shiftcd from thc crimc sccnc at 08.00 pm. Indccd, Wahcedullah was not prcscnt at thc tirnc of thc occurrcncc, a lact, which, kro, was con firmcd from him undcr cross cxamination. Wahccdullah's tcstimony thus

substantiatcs that thc complainant informcd him at his homc liom thc crimc sccnc and whcn hc rcachcd thcrc, thc complainant was alrcady prcscnt thcrc.

8.Advcrting to thc issuc pcrtaining to thc attraction of othcr pcoplc to thc crimc sccnc, thc complainant affirmativcly dcposcd that from thc locality, somc pcoplc, such as, Jamal, Kamil, Nawab, ctc, rushcd to thc crimc sccnc, but hc didn't producc thcm to thc Invcstigating Olficcr lor rccording their statcmcnts. In thc samc vcin, thc complainanl. also admittcd that thc datsun pick up's drivcr Amin Jan, too, was not cxamincd as witncss. Indccd, it would havc bccn much bctlcr, had thcsc pcrsons, or anyonc amongst thcm, bccn cxamincd. I lowcvcr, thcrc could bc no disputing thc trulh that potcnlial witncsscs usually rcmain rcluctant to comc lorward as witncsscs so as to shun inviting cnmity of thc accuscd party. 'l'hough unfortunatc, it is common knowlcdgc thal thc gcncral public avoid coming lorward as witncsscs in criminal cascs.'l'hc courts havc bccn considcring it sincc long. Rcfcrcncc may, lor cxamplc, bc madc to a 1976 casc of Rahim Bakhsh v. Muhommad lqbol etc.

(1976 SCMR 528,). Morcovcr, prosccution is bound to producc matcrial witncsscs in support ol its casc.

9.'l'he issuc of thc cxact limc of thc dcath of thc dcccascd is linkcd to thc mcdical cvidcncc.'l'hc cornplainant statcd in thc lrllt that thc dcccascd brcathcd his last on thc crimc sccnc. In

othcr words, thc information hc fumishcd was that as a rcsult ol thc fircarm injurics, thc dcccascd dicd on thc spot instantancously.'l'hc post-mortcm cxamination rcport shows that thc probable timc bctwccn injury and dcath was 20-30 minutcs. Lcarncd counscl lor thc appcllant acccntuatcd this cntry of thc post-mortcm rcport, prcscnting it as a malcrial contradiction. 'l'his aspccl may nccd dccpcr critical analysis. In thc post-mortcm rcport, iL is thc probable and not thc cxact timc bctwccn thc injury and dcath that is rccordcd by a mcdical officcr. 'l'hc following cxplanations olthc word "probablc" arc worth rcading:

(a)Thc common usc of this word is no doubt to imply that somcthing is morc likelv to happcn than not. In conversation, if onc says to anothcr "If you go out in this wcathcr you will probably catch a cold" this is, I think, cquivalcnt to saying that onc bclicves thcrc is an odds on chancc that thc other will catch a cold. Thc word "probablc" nccd not, howevcr, bcar this narrow mcaning... A closc study of thc rulc was madc by thc Court of Appcal in thc casc of Victoria Laundry (Windsor) Ltd v Ncwman Industrics Ltd Ill949l I All ER 9971. The judgmcnt of thc court was dclivercd by Asquith LJ who suggcstcd thc phrasc "liablc to rcsult" as appropriatc to dcscribc thc dcgrcc of probahility rcquircd.

This may bc a colourlcss cxprcssion, but I do not find it

possiblc to improvc on it. If thc word "likclihood" is uscd, it may convey thc imprcssion that thc chanccs arc all in favour of thc thing happcning, an idca which I would rcjcct. Thc Hcron II, Konfos y Czarnikow (C) Ltd 119671 3 All ER 686 at 707-708, HL, pcr Lord Hodson:

'Thc word "probablc" is a common cnough word. I undcrstand it to mean that something is likclv to hapDcn.' Goldman v Thai /irwuys lnternational l.td 119831 3 lll lrR 693 at 700, Cl, per liveleigh IJ lWords lnd l)hrases Legally Defined;

l,cxisNcxis, 2O,?, 4th lid., pp6 I 5-l6l

(b)I'robablc. "Probablc" mcans having morc cvidcncc for than against;

supported by cvidcncc which inclincs thc mind to bclievc, but lcaves somc room for doubt.

f l) Ilamanatha Aiyar's tldvanced l,aw

I.exicon, Shakil Ahmad Khan, vol. 3, 2017, 5tt' l:d. l.cxisNcxis, p408 I I

10.'l'he information thc complainant lumishcd, too, couldn't bc sccn with arithrnctic prccision. It nccds no mcntion that witnessing the murdcr, most notably ol' a ncar and dcar onc (brothcr, lathcr, ncphcw, ctc) tcnds to bc a traumatic cxpcricncc, triggcring physical, and crnotionally disturbing rcsponsc and gcncrating fcclings of shock, strcss, anxicty, intimidation and angcr. 'l'hc scenc changcs abruptly. No onc can cxacl.ly visualizc what a witncss has actually sccn. Indccd, it is

a momcnt full olthc grcatcst gricland shock whilc witncssing a victim taking thc last brcaths ol'his lil'c. In such a situation thc cxact timc o[ thc cxpiry ol- thc dcccascd was not possiblc to bc statcd. livcn othcrwisc, thc probablc timc of dcalh-20-30 minutcs pcr thc post-mortcm rcpo(-happcncd on thc crimc sccne as it took sulficicnt to arrangc a datsun pick lbr its rcmoval to the hospital. It mcans that thc mcrc fact thc complainant statcd that thc dcath occurrcd instantancously couldn't bc considcrcd as rnuch a matcrial doubt as to lay axc at thc roots of thc prosccution casc. 'l'hcn, usually pcoplc from thc ncar around arca arc attractcd. Nothing could bc obscrvcd with prccision and that, too, with an idca that cvidcncc of thc samc would bc furnishcd bcforc thc Court. Morcovcr, it usually takcs somc timc for all thosc on thc crlmc sccnc to comc back to thc normal scnscs aftcr what has happcncd. All that is rcquircd 1o bc brought on thc rccord and provcd at thc trial is that a crimc has bccn committcd, which a witncss(s) has/havc sccn dircctly and that has resultcd in thc dcath/injury to somconc. 'l'hcsc circumstanccs arc vcry much availablc in thc instant casc in thc light ofthc abovc cxamination olthc cvidcncc and also provcd.

In light of thc obscrvations madc in Nosir Ahmed Vs The State (2023 SCMR 478), iL is scttlcd law that whcrc ocular cvidcncc is found trustworthy and confidcncc inspiring-as is thc casc bclore us-thcn thc samc is givcn prclcrcncc ovcr mcdical

- ll -

cvidcncc and thc samc alonc is sufficicnt to sustain conviction ol'an accuscd. lrurlhcr, mcdical cvidcncc is always considcrcd a corroborativc piccc of cvidcncc. lt is trcatcd 10 bc confirmatory in naturc. Anothcr significant aspcct of thc mcdical cvidcncc-thc injury shcct, thc inqucst rcport and post- mortcm rcport-cvincc that thc dcccascd rcccivcd two cntry wounds with two cxit wounds. lloth arc notcd to bc of thc samc sizc.'l'his has provcd that a singlc fircarm wcapon was uscd for thc commission o[thc ofl'cncc by a singlc pcrson. Il thc ocular account is fully rcliablc in support of an incidcnt, thcn a minor contradiction in thc mcdical and ocular cvidcncc should losc thcir wcight. lShafqat Ali tnd others v. The State (PLD 2005 s.c 288)1.

ll. l,ast, but not thc lcast, thc complainant didn't producc any documcnt showing his owncrship ol' thc land hc and thc dcccascd had visitcd. If thc prosccution has provcd thc natural prcscncc of thc complainant on thc crimc sccnc, thc purpose of his visit to thc land would bccomc a sccondary aspcct. If at all, it may, at bcst, bc sccn as a minor discrcpancy. ln Falak Sher v.

The State (NLR 2000 Criminal 188), thc Suprcmc Court obscrvcd minor inconsistcncics not of latal charactcr may not bc uscd lbr acquittal though may bc sccn as a rnitigating circumstanccs

12.l,carncd counscl lor thc appcllant raiscd two morc

objcctions on thc tcstimony of thc complainant. liirstly, thc complainant is an intcrcstcd witncss bccausc hc is thc rcal unclc of thc dcccascd; and sccondly, in District Lakki Marwat, in thc rnonth of July, pcoplc usually don't go at such timc as 06.30 pm to look aftcr thcir ficlds. As rcgards thc first objcction, it is fully cstablishcd that thc complainant was thc only witncss accompanying thc dcccascd aL thc rclcvanl" timc. I Ic was a natural wilncss. Mcrc closc rclationship of a witncss is not latal kr thc prosccution casc. It nccds no cmphasis that all that must bc sccn is thc intrinsic worth of cvidcncc ol an cyc witncss, no matlcr how closc rclativc ol thc complainant party hc may bc.

'l'hc intrinsic worth o[ thc cvidcncc shall comc from its bcing natural, truc and confidcncc inspiring. As discusscd abovc, his prcscncc on thc crimc sccnc was not shattcrcd. So far as thc sccond objcction gocs, sulficc it to say that thc complainant was no1 askcd any qucstion undcr cross cxaminal.ion that his visit to % his hclds at thc rclcvant timc is not practiscd as a part of thc lolkways (traditional bchaviour or way ol lifc ol thc local community). 'l'hc Invcstigating Ofliccr also collcctcd no such cvidcncc, nor was hc cross-cxamincd in this conncction. 'l'hc cvidcncc dcmonstratcs that the villagc ol' thc complainant party is situatcd at a distancc ol- about 02 Kilornctrcs, a short distancc, indccd. 'lhc mcrc fact that pcoplc would not go out at that point of timc and that thc complainant party had gonc out could not

bc secn as an act casting doubt on thc vcry happcning ol thc incidcnt. 'l'hcn, a qucstion would arisc as to why thc complainant would chargc thc appcllant lalscly whcn, as pcr his own dcposition, hc statcd to havc no cnmity with thc appcllant or cvcn othcr pcrsons in his villagc.

13.Wc would now cxaminc thc rccovcry of 04 cmptics of 7.62mm borc pickcd up liorn thc crimc sccnc. 'l'hc cmptics wcrc cxamincd in thc Iiorcnsic Scicncc Laboratory (l;SL). 'l'hc signihcancc of thc ISl, rcport lics in thc fact that thc cmpties wcrc found to havc bccn fircd lrom onc and thc samc wcapon.

It doubtlcssly mcans that thc cmptics wcrc fircd by onc pcrson I Iowcvcr, on balancc, it is worth noting that no cvidcncc was produccd as who took thc parccl containing thc cmptics to thc llSl,. Morcovcr, thc cmptics wcrc rcccivcd in thc l;SL on 15.08.2018, aftcr 28 days ollhc occurrcncc. It may bc obscrvcd hcrc that: firstly, thc wcapon o[ offcncc was not rccovcrcd from thc appcllant. Sccondly, no spccific malicc was atlributcd to thc lnvcstigating C)fficcr. 'l'hirdly, and if at all it is sccn somcthing to bc rcckoncd with, thc omission could at bcst bc dcscribcd as l.hc incfficicncy of thc Invcstigating Ofliccr. ln Nawoz v. The State (2003 YLR 2926), rhis Court has hcld thar mcrc dclay in scnding thc rccovcrcd articlcs to thc cxpcrt, in thc abscncc of any malicc on thc parl of thc Invcstigating Officcr, is not a good ground for rejccting thcir valuc and worth. Likcwisc, in Akhtar

Ali v. The State (2016 PCTLJN J,), it was hcld that in abscncc of thc crimc wcapon, thc non-scnding ol thc crimc cmptics to thc lfSL, particularly in a casc ol singlc accuscd, would not damagc thc prosccution casc.

14.Lcarned counsel for thc appcllant raiscd objection rcgarding thc shifting olthc dcad body lrom thc crimc sccnc to thc hospital. 'l'hc PM lcport dcpicts that thc dcad body was takcn to thc hospital by Wahccdullah. 'l'hc inqucst rcport shows that thc dcad body was rcccivcd by the samc Wahccdullah. 'lhc objcction ol thc lcarncd counscl was that why didn't thc complainant shift thc dcad body to thc hospital. Wc havc alrcady discusscd abovc with rclcrcncc to thc statcmcnts of thc complainant and Wahccdullah. 'l'hc dcpositions of thosc witncsscs show that thc complainant informcd Wahccdullah, his brothcr. 'l'hc lattcr rcachcd to thc spot. I lc, thcn, managcd a datsun pickup. IIc and thc complainant jointly shiftcd thc dcad body to thc hospital at 08.00 pm from thc crimc sccnc. ASI Ghulam Saboor (PW2), thc scribc of thc murasila, dcposcd that in thc inqucst rcport, hc has not mcntioncd thc namc of thc complainant; rathcr hc has mcntioncd thc namc ol Wahccdullah, having idcntificd thc dcad body, alongwith onc Shcr Zaman Khan. Wc arc of thc vicw that thc prosccution has substantially cxplaincd that I)W Wahccdullah rcachcd to thc c mc scenc quickly aftcr having bccn informcd by thc

complainant, who thcrcalicr procurcd thc vchiclc lor shifting thc dcad body. 'l'hus, his prcscncc on thc spot at that time is provcd and it would makc no diffcrcncc if his namc was mcntioncd in thc inqucst report as wcll as in thc post-mortcm rcport.

15.Coming to thc dclay in lodging thc l;lR.'l'hc arrangcmcnt ol' thc vchiclc is a tirnc-consuming cllilrr. 'l'hc locality ls typically a rural onc. 'l'hc distancc bctwccn thc crimc sccnc and thc hospital as thc complainant has told, is 08 to l0 milcs (approximatcly 12-16 Kilomctrcs). 'l'hcrc is no hard and fast rulc that delay in lodging thc rcport would aulomatically rcndcr l.he prosccution casc injuriously doubtful unlcss thcrc is suf'ficicnt cvidcncc indicating consultation and dclibcration. What is important is that it dcpcnds upon facts and circumstanccs ol cach casc. 'l'hc timc spcnt in arrangcmcnt of a vchiclc vis-d-vis thc distancc bctwccn thc crimc sccnc and thc hospital makcs dclay natural. Nccdlcss to statc that anyonc, cspccially a closc rclativc, a fact in thc casc in hand, who witncsscs a murdcr couldn't bc cxpcctcd to act mcchanically with a morc than rcasonablc promptitudc. So, thc dclay not bcing taintcd with mala lldc, dclibcration and consultation, wouldn't ncgativcly impingc on thc vcracity of thc prosccution casc. ln this rcspcct, rclbrcncc may bc madc Lo Ali Ahmed v. The State (2022 PCrLJ 1480), in which it has becn

hcld that mcrc dclay in rcporting o[crimc to thc policc by itsclf is not fatal to thc prosccution casc.

16.As rcgards thc minor discrcpancics, rcfcrrcd to abovc, sufficc it to say that acquittal cannot bc rccordcd solcly on thc ground o[ minor discrcpancics or contradictions. It is scttlcd law that any contradiction or discrcpancy which docs not go dccp to thc roots ola criminal casc cannot bc madc solc ground lor acquittal. 'l'hc rcason is that if thc practicc o[ rccording acquittal on thc basis of irrclcvant discrcpancics or contradictions is allowcd to prcvail, thcn conviction in criminal cascs will bccomc impossiblc. Nccdlcss to mcntion that this has ncvcr bccn thc intcnt and purposc bchind the conccpl of appraisal of cvidcncc in administration ol' criminal justicc.

Whilc apprcciating thc cffcct ol'rninor discrcpancics ln onc o[ thc latcst cascs, thc Suprcmc Court hcld that:

It is a wcll scttlcd proposition of law that as long as the matcrial aspccts of thc cvidcnce havc a ring of truth, courts should ignorc minor discrepancics in thc evidcncc. If an omission or discrcpancy gocs to thc root of thc mattcr, thc dcfcncc can takc advantagc of thc samc. Whilc appreciating thc cvidcncc of a witncss, thc approach must bc whcthcr thc cvidcncc rcad as a wholc appcars to havc a ring of truth. Minor discrcpancics on trivial mattcrs not alTccting thc matcrial considcrations of thc prosccution casc ought not to prompt thc courts to rcjcct cvidcncc

in its cntirety. Such minor discrcpancics which do not shakc thc salicnt fcatures of thc prosccution casc should bc ignorcd. llmran Mehmootl v. The Stile tnd unother (2023 SCMR 7es)l

17.lna2022 casc, thc Court rulcd:

Whilc apprcciating the cvidcncc, thc court must not attach unduc importance to minor discrcpancics and such minor discrcpancics which do not shakc thc salicnt fcaturcs of thc prosccution casc should bc ignored. 'fho accuscd cannot claim prcmium of such minor discrcpancics. If importancc bc givcn to such insignificant inconsistcncics thcn thcre would hardly bc any conviction. lShomsher Ahmad and anolher v. The State ond others (2022

-fu, scMR t93r)l

n',8. Coming to thc rnotivc, thc gcncral principlc is that:

tirstly, it is not ncccssary lbr thc prosccution to allcgc motivc in cach and cvcry casc. Sccondly, oncc sct up, motivc must bc provcd. Motivc is a statc of mind of an accuscd pcrson. It always rcmains sccrct and conccalcd until cxposcd through spokcn words or actions. 'l'hc complainant statcd in thc lrllt that thc appcllant likedthc dcccascd; hc urged lhe deceased lo keep company with him. 'l'hc dcccascd, hc addcd, was not willing to do so. I Ic rcitcratcd it in his doposition. 'l'hc Invcstigating Officcr statcd that hc askcd about thc motivc lrom thc pcoplc in thc locality which was confirmcd. llowcvcr, hc didn't record

- l8 -

thc statcmcnt ol' any witncss t<l clicit its proof. It mcans, no indcpcndcnt cvidcncc camc foflh. I Iowcvcr, cxccpt his oral tcstimony, thc prosccution has failcd to bring on thc rccord indcpcndcnt cvidcncc Lo substantiatc thc motivc. Onc can't hclp apprcciate that thc naturc of thc motivc is such that gencrally pcoplc avoid talking about it publically and, morc so, in a court of law. 'l'hc dcccascd, as thc privatc counscl fbr thc complainant statcd at thc bar, was a young handsomc tccnagc boy of l2ll3 ycars. 'l'his is undisputcd. Ilut, on balancc, thc appcllant, too, is a young latc tccnagc boy. Ilis urgc is absolutcly not justificd.

Givcn his mcntal immaturity, thc cvcnt prcccdcd thc incidcnt appcars to havc flarcd up his cmotions induccd by displeasurc which lcd to rob him olthc powcr of scll-control.

19.'l'hc jurisprudcncc dcvclopcd by our Suprcmc Court on thc rolc of a failcd and/or non-provcd motivc as a mitigating lactor in award ol'punishmcnt is quitc rich. Cascs which may callcd somcwhat carlicr oncs arc:

% . Msl. Bevi v. Ghulam Shahbir and onother (1980 SCMR 859) . Ansar Ahmocl Khon Burki v. The State ond onother (1993 SCMR 1660) o Falok Sher v. The Stote (NLR 2000 Criminal 188)

Iicccnt rulings arc:

a Zahoor Ahmod v. Stote (2017 SCMR

a Haq Nawaz v. The State (201E SCMR

v 2t) a Muhommad Umtr v. The Stile (2022 P.Cr.L..L 695)

In thc last mcntioncd casc, thc Court obscrvcd:

'fhc law is scttlcd by now that if the prosccution asscrts a motivc but fails to provc the same thcn such failurc on thc part of the prosccution may rcact against a scntcncc of death passcd against a convict on thc chargc of murdcr 1...1.

'l'hc Cou( rcfcrrcd to thc lollowing casc:

a Ahmud Nawaz v. The Stote (2011 scMR s93) a lJtikhar Mehmood and anolher v. Qaiser lftikhar and others (2011 SCMR r r6s) a Muhammtd Mumlaz v. The Stole and unother (2012 SCMR 267) a Muhammtl lmron (a2, AsiJ v. The Stute (20r3 scMR 782) a Sabir Hussain olias Sohri v. The Slate (2013 SCMR rss4) a Zeeshan Afzal alirc Shani ond another v. The Stote and anolher (2013 SCMR l6tJ2) a Naveed alias Needu and others v. The Stste and others (2014 SCMR 1464) a Muhqmmad Nadeem ll/aqas and another v. The state (2014 scMR 1658) a Muhammad Asif v, Muhammad Akhtar and othcrs (2016 SCMR 2035); and a Qaddan and othcrs v. Thc Statc (2017 scMR r48)

20.'l'hc conclusion of thc abovc discussion, aftcr thc abovc

rcappraisal ol thc cvidcncc, is that thc prosccution has provcd that thc complainant was prcscnt at thc crimc sccnc and has lurnishcd dircct cvidcncc as thc cyc witncss of thc occurrcncc.

I Iis cvidcncc is dircct, concrctc and con lidcncc inspiring. 'l'hc dcfcncc has not bccn ablc to shattcr his prcscncc on thc spot and bring ill will on his part for roping thc appcllant in thc casc.'l'hc rccovcry of thc cmptics lrom thc crimc and thc mcdical cvidcncc convincingly proppcd up thc complainant's cvidcncc.

No qucstion ol misidcntification of thc appcllant was raiscd.

Ccrtain discrcpancics did surlacc, such as, dclay in lodging thc rcport; dclay in scnding thc cmptics to thc lrSL; and proof of thc motivc. Altcr having cxamincd thcsc discrcpancics ln juxtaposition with othcr kcy aspccts, such as, thc dircct, positivc and confidcncc inspiring cvidcncc of thc complainant;

thc rccovcry of thc crimc cmplics and blood staincd carth from thc crirnc sccnc and thcir positivc lrSl. rcport; thc appcllant bcing a singlc accuscd duly idcntilicd on spot, wc havc rcachcd to thc conclusion that thc prosccution has provcd thc chargc of qatl-i-amd against thc appcllant.

21.Wc would now considcr thc issuc of scntcncing. 'l'hc lcarncd trial Judgc has imposcd thc scntcncc of dcath lor two rcasons: firstly, thc samc is thc normal pcnalty lor qatl-i-amd;

and sccondly, thc young agc of thc appcllant is not a rnitigating factor.'l'hc trial Court has rclicd on thc ruling givcn in thc casc

of State Vs l{aheed lqhol (2005 PCT.LJ 1384) and 2010 PCT.LJ 1687 SC (Al&K).

22.Wc havc no ccntral law ol'scntcncing. 'l'wo provinccs- thc Punjab and thc Khybcr l)akhtunkhwa-havc introduccd scntcncing laws in 2019 and 2021, rcspcctivcly. lloth thc laws havc thc samc tcxt. 'l'hcy don't apply to cascs whcrc capital punishmcnt IS providcd within thc rangc ol punishmcnts.

I lowcvcr, thcy lay down aggravating and mitigating factors which thc (trial) court only may takc into considcration whilc passing a scntcncc. Scction l4(3) ol' thc KI) law providcs that thc court shall schcdulc a scparatc hcaring lbr scntcncing. 'l'hough, thc 2021 KP law is not applicablc to oflcnccs carrying capital punishmcnt, still a scparatc hcaring on scntcncing would bc helpful for a trial court. Wc rcspcctfully urgc thc trial courts to conduct such scparatc hcaring. Scction 3(2) (a) ofthc KP law providcs thc agc ol'thc ol'l'cndcr as onc ol'thc mitigating lactors.

I)cspitc Lhc abscncc ofa scntcncing law until vcry rcccntly, thc highcr courts havc attcndcd to thc issuc in thcir judicial pronounccmcnts. In a 2010 casc, Lhc Suprcmc Court hcld that thc qucstion of scntcncc dcmands utmost carc on thc pa( of thc courl dcaling with thc lilc and libcrtics of thc accuscd pcrson (Nadeem ulias Manha alias Bilh Sher v. State 2010 SCMR 949 Supreme Aturt). ln Muhtmmad Ashraf v. Stute (2006 P Cr. L J l43I), it was hcld that thc courts should not bc

a't

mcchanical in awarding scntcncc. 'l'hcy arc supposcd to think and considcr what a propcr scntcncc ought to bc. In thc casc of Saleemuddin v. State (2011 SCMR I l7l), Lhc Suprcrnc Courr ol l)akistan has hcld that whilc awarding any scntcncc, thc Court should always kccp in mind all thc surrounding circumstanccs, undcr which a particular offcncc is commitlcd.

23.ln Dhananjoy Chatlerjee olios Dhana v. State of lV.B (1994 2 SCC 220), thc Suprcmc Court of India hcld:

l5...Impositi<ln of appropriatc punishmcnt is thc manncr in which thc courts rcspond to thc socicty's cry frl r justicc against thc criminals. .lusticc dcmands that courts should imposc punishmcnt bcfitting thc crimc so that thc courts reflcct public abhorrcnce of thc crimc [... l.

24.In thc casc ol Shailesh Jasvantbhai and Another v. State of Gujuat ond Olhers (2006 2 SCC 359), thc Suprcmc Court ot' India obscrvcd:

Fricdman in his Law in Changing Socicty statcd that: "Statc of criminal law continucs to bc--as it should be--a dccisivc rcflcction of social consciousncss of socicty." Thcrcforc, in opcrating thc scntcncing systcm, law should adopt thc corrcctivc machincry or dctcrrcnce bascd on factual matrix.

lly dcft modulation, sentencing proccss bc stcrn whcrc it should bc, and tcmpcrcd with mcrcy rv hcrc it warrants to bc. Thc facts and givcn circumstanccs in cach case, the naturc of thc crimc, the manncr in which it

was planned and committed, thc motive for commission of thc crimc, thc conduct of thc accuscd, thc naturc of wcapons used and all other attcnding circumstanccs arc rclcvant facts which would cntcr into thc area of considcration.

25.Wc havc obscrvcd that thc appcllant is in his latc tccnagc, agcd about 19120 ycars.'l'hc appcllant has attaincd thc agc of majority. I Iowcvcr, at such an agc, mcntal maturity is still lacking. Ncxt, thc motivc though was not provcd indcpcndcntly.

'l'hc Invcstigating Olliccr probcd it in thc locality. As wc havc obscrvcd abovc, thc motivc as cxprcsscd in thc lrlll is not usually spclt out in thc public. Morcovcr, no othcr motivc was statcd. 'l'hen, thc circumstanccs prcccding thc incidcnl could bc said to havc put thc appcllant in distrcss duc to which hc could bc safcly said to havc lost sclf-control, cspccially duc to low tal maturity. Wc arc of thc vicw that lilc tcrm would hclp g;:""^^tc a scopc lbr his rclbrrnation with thc passagc of timc as his mcntal maturity incrcascs

26.As a corollary olthc abovc discussion, whilc maintaining thc conviction undcr scction 302 (b), I)PC, wc partially allow this appcal by convcrting thc dcath pcnalty to lifc imprisonmcnt. On balancc, howcvcr, wc cnhancc thc amount of I'inc lrom lls. Onc rnillion to lls. I'wo million, which, if rcalizcd, shall bc paid to thc lcgal hcirs ol- thc dcccascd as compcnsation undcr scction 544-A, Cr.PC. In dclault ol

payment o[finc, hc shall lurthcr undcrgo 06 months S.l. I]cncfit r.rndcr scction 3ti2-l] Cr.l'}C is cxl.cndcd to thc convict-appcllant.

Wc answcr thc dcath rcfcrcncc in thc net!a!!y.

27.So lar as thc criminal appcal ol thc complainant against acquittal o[ thc appcllant undcr scction 324, l'l'C, is conccmcd, wc lind that thc appcllant had no intcntion to commit qatl-i-amd ol'thc complainant. IIad thc appcllant any intcntion to commit thc murclcr of thc complainant, hc could do so casily, cspccially kccping in vicw thc distancc bctwccn thc two and thc lact l.hat thc complainant was cmpty handcd. 'l'hc acquittal of thc convict-appcllant undcr scction 324 l'l>C is, thus, justihcd.

Ilcsultantly, thc conncctcd Crirninal Appcal No. l9-l]/2023 Litlcd "Samiullah Khan v. The Slale" is hcrcby dismisscd ztl. 'l'hcsc arc thc rcasons lbr our short ordcr ofcvcn datc. /nnounced 3 t.05.2023 (Chafoor Zaman) tr-xe

JUDGE

J sw

,NU (

lfrjwp N t (o.Bl Hon'ble Mr. .lustice Fazal Subhan Hon'ble Mr. Justice Dr. Khurshid lqbal