Minhaj VS the State & others.

\./ JADGMENT SHEET

IN THE PESHAWAR HIGH COIIRT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Cr.A. No.200-1W2014

Cr.A. No.201-N[/2014

CONSOLIDATED

IUDGMENT

Date ofhearing: 07.11.2017.

Aooellant:- (Minhai) Sahibzado Asadullah Advocate,

Respondents:- (the State & anothert bv Baruister I Asad Hameed-ur-Rehman State counsel and Mr. Azim Khan, Advocate.

MOHAMMAD IBRAIIIM KTIAN, J. In the attending circumstances of the case registered vide FIR No. 35 dated 21.01,2001, the accused/Appellant Minhaj IS charged under sections 302,34 PPC registered at Police Station Ouch Dir Lower and on his arrest by the recovery of the weapon Kalashnikov case vide FIR No. 53 dated 31.01 .2013 was also registered against him under section 13 of the Arms Ordinance at the same police station.

f, 2. There were separate trials held under the registration of the case of murder vide Sessions Case No. 45lII of the year 2013 and upon recovery of the weapon (Kalashnikov) the Nawab (D.8.) Hon'ble Mr, Justlce Mohammad lbEhlm Khan Honrblr Mr. Justice lshtiaq lbrahlm

trial was also held in A.O. Case No. 03/III of 2013. In the former trial the accused/Appellant Minhaj was found guilty and the following sentences were passed against him:- U/S 302 (b) PPC to ltfe imprisonment with compensation of Rs. two million payoble to the Legal Heirs of the deceased or in default thereof shall further undergo six months Sf, however, beneftt of section 382-8 Cr. P.C. was extended to him.

In the latter trial upon proof of the weapon of Kalashnikov, this accused/Appellant was convicted and sentenced in the following manner:-

U/S 13 A.O. to three years imprisonment alongwith tine of Rs,5,000/- or in default thereof shall further suffer six months

^S1,

however, benetit of section 382-8 Cr. P.C was extended to him and the case property was conftscated in favour of the

v4 Stute.

3.As the accused/Appellant has come up with the prayer for setting aside of the impugned conviction and sentences rendered by the learned Additional Sessions Judge Chakdara Dir Lower, Nawab (0.8.) Hon'ble Mr. Justice Mohammad lbnhim Khan Hon'ble Mr. Justice lshtiaq lbEhim

J

therefore has preferred these separate appeals Cr.A. No. 200-M of 2014 in the main case and Cr.A. No. 201-M of 2014 in the connected case of the recovery of weapon (Kalashnikov). The facts and the legal propositions are coming to be one and the same, therefore, these appeals are disposed of by way of this singled-out judgment.

4.In the sessions trial bearing case No. 451il of 2013 after compliance of proceedings under section 265-C Cr. P.C, the accused/Appellant was charge-sheeted on 06.01 .2014 that he alongwith acquitted co- accused Zartaj on Zlst January, 2001 after Zuhr prayer near Masjid Kaskay Dehri falling within the criminal jurisdiction of Police Station Asbanr are said to have shared their common intention and committed Qatl-i-amd of Muhammad Zeb with fire arms, which offence is punishable under sections 302134 PPC. In this case, the charge was f denied, thereby in order to bring home the charges the prosecution examined PW- I Haleem Khan, PW-2 Mst. Amir Zadgai, PW-3 Dilawar, PW-4 Bakht Zarnan, PW-5 Fazal Rahman Nawab (0.8.) Hon'ble Mr. Justice Mohammad lbrahlm Xhan Hon'bl! Mr, Justic€ lshtlaq lbrahim

Constable No. 959, PW-6 Shahi Bakht Khan SHO, PW-7 Bakht Jamal Khan SI, PW-8 Bakht Raj Khan SHO, PW-9 Muhammad Naeem Khan Circle Officer, PW-10 Zahir Khan Constable No.

899, PW-l I Muhammad Sabir Khan AMHC, PW-12 Dr. Muhammad Noor Khan Medical Officer, PW-13 Wazir Gul Constable No. 174 and PW-14 Wasiyat Khan ASI. Amongst these prosecution witnesses is PW-2 Mst. Amir Zadgai, who has shown herself to have witnessed the occuffence when her son was put to death while PW-3 Dilawar is father of the deceased. The mother (PW-2) has posed herself eye witness while father (PW-3) is not an eyewitness of the occuffence iN he has been informed about the occurrence by his daughter. The other are formal witnesses and the Investigation Officer who have been examined as prosecution witnesses.

,*) After closure of the prosecution f 5

evidence, the accused/Appellant was examined under section 342 of the Code of Criminal Procedure, wherein he negated the prosecution N.wab (0.8,) Hon'ble Mr, Justice Mohammad lbrahim (han Hon'blo Mr. Justice lshtlaq lbEhlm

evidence through his respective answers and posed innocence.

6.In the latter trial for the weapon (Kalashnikov), this accused/Appellant is said to have being arrested on 30.01 .2013 at 19:40 hours near Gul Abad Bazar fallen within the criminal jurisdiction of Police Station Ouch. The police official recovered Kalashnikov bearing No.78631012 alongwith charger and 10 cartridges possessed by him, thereby committed an offence within the meaning of section 13 of Arms Ordinance. When for this offence being charge sheeted on 10.03.2014, the prosecution examined PW-l Fazal Rahman Constable No.

959, PW-2 Bakht Jamal Khan SI, PW-3 Muhammad Naeem Khan Circle Officer, PW-4 Zahir Khan Constable, PW-5 Muhammad Sabir Khan AMHC and PW-6 Zahid Khan SHO. After ,r)- closure of the prosecution evidence in this case, f, the accused/Appellant was examined under section 342 Cr. P.C, who negated the prosecution evidence, posed innocence and stated to have falsely been implicated in the case.

Naw.b (0.8.) Hon'ble Mr. Justlce Mohammad lbEhlm Kh.n Hon'ble Mr. lustlce lshtlaq lbrahim

6.At the end, in both the separate trials, the accused/Appellant was convicted and sentenced in the mode and manner as stated above through the impugned judgments.

7 We have afforded fair opponunity of hearing to the learned counsel for the accused/Appellant in both the connected appeals, learned counsel for the complainant and learned State counsel, record was delved deep into with their valuable assistance.

8.Learned counsel for the

convict/Appel lant referred to 2016 YLR 905 n vs Nawab Khan

anothertt, 2015 P Cr. Lf 248 (Peshawar) t, Umar Gul and another vs Samar Khan and anothert' and 1988 940 ll Muhammad Aslam and others vs The Statet' and prayed for p)u"Wittut of the accused/Appellant as the f, testimony of sole eyewitness is not worth to be relied upon. On the other hand, learned counsel for the complainant duly assisted by learned State counsel olaced reliance on 2011 MLD 1214

I

lPothnwnrl 't Ynsir d 2 others rrs Rnninz Nawab (D,8.) Hon'ble Mr. Justice Mohammad lbrahim Khan Hon'bl€ M., Justlc6 lshtiaq lbEhim

Khan and another", 2008 MLD 1181 (Lahorel " Saif Ullah vs the State ,,. 2009 scMR 471 n Oaisar Khan and others v^s The Stote and others", 2011 P Cr.LJ 1455 (Peshawart " Saadullah vs MsL Sardar Bibi aFd 2 others", thereby requested for utter dismissal of the appeal.

9 The important and foremost consideration would be for the disposal of the SESSIONS CASC bearing No. 45lII, which is regarding the maln occulTence whereby the accused/Appellant alongwith co-accused Zartaj were tried together while sharing their common intention and charge was framed against them for causing murder of deceased Muhammad Zeb. ln this case, the only witness of ocular account is PW-2 Mst. Amir Zadgai. She has stated that she being mother of deceased Muhammad Zeb, her son was coming to home from the nearby mosque f, after offering Zuhr prayer, when on the way the accused Zartaj and Minhaj sons of Musafar fired at him. Her son Muhammad Zeb got injured who later on died. This occuffence is stated to have Nawab (D.8.) Hon'ble Mr. Justice Mohammad lbrahim (han Hon'ble Mr. Justlce lshtlaq lbrahim

v been witnessed by Bakht Zaman and Jameel besides her. Her statement has been meticulously taken into consideration being solitary witness to the crime whereby her son was murdered by the accused/Appellant in the company of co-accused Zartaj. In her examination-in-chief while being administered oath she has stated that the occurrence has been witnessed by Bakht Zaman and Jameel. PW-4 Bakht Zaman has been examined, who has utterly stated in the opening line of his examination-in-chief:-

L

"i, 4/-;M T t tr .(0, u: ! {ct|.et -",/t6/,Y While PW Jameel has not been examined, whereas statement of PW-2 Mst. Amir Zadgai is silent that she had ever witnessed the occurrence. In her cross-examination she has come up with an admission:-

vt ! 7 :,y, 4 /,! i'F,,t tl r il,/v,: ri, I I f, ,rr. -t? o,/t!":"rti This witness posing to be an eyewitness of ocular account has also admitted:- -fiv Or ztt L is t tf ) 4, t,,! /v{ Lf o,.,: L* +bt; LS i q, .|,-y' ,,*-,r -(it; -,? 6" vV -A i +VVt,e -( {t! -i,t,! o7 t, Z -,f ,i{ rt YXJ P vt,-:-','Vi U -a U,V = / Nrw.b (D.8.) Hon'ble M.. Justie Mohamm.d lbEhlm Xhln Hon'bb Mr. lustice lshtiaq lbEhlm

In the site plan she has not been shown outside her house. She being Pardanasheen lady has herself stated that was busy in the household work.

Even otherwise, in this advance age the Pardanasheen lady like Mst. Amir Zadgai is usually present in the house for performance of day to day routine household work. It is for the prosecution to prove presence of this witness. Reliance in this regard has been placed on 1993 SCMR 417 "Ashiq vs The State, wherein the relevant citation speaks of:-

5.302-Burden of prooj, Prosecution is duty bound to prove the case against accused beyond doubt and this duty does not change or vary in the case in which any defence plea is taken.

Mst. Amir Zadgai is the solitary eyewitness of the occurrence, as the other witness Dilawar father of the deceased has admitted r ,l tr f.-tru et: ri t)tt-c)xd a'fi f ri lyu.3t-ttOti,rr /,r'/-za(4- L 0ri ^?B ',,t!7-rr1 L /-fu ;- t> ot letv i ttQtt' / u.- : f *z-1 t;

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If presence of this witress being father of the deceased and PW-2 Mst. Amir Zadgai is ousted then it would be an unseen occulrence. Reliance has Nawab (D,9,) Hon'ble Mr. Justice Mohammad lbnhlm Kh.h

-l0-

been placed on 1997 P Cr. LJ 2075 " Muhammad Anwar vs The State", wherein it enunciates:- Appreciation of evidence--Presence of eye-witnesses at the time and place of incident had not been established beyond doubt and the occuruence was an un-witnessed one, Other incriminoling connected evidence like strong motive, recovery of blood-stained dagger and medical evidence, in the circumstances, could not be collectively or individually sufftcient to form basis of conviction of accused-Accused was acquitted on beneJit of doubt accordingly.

This view has further been re-affirmed in the case law cited as 1995 SCMR 1627 " Haroon alias Harooni vs The State and another in the following manner:-

S. 3L2-Appreciation of evidence General rule. Statement of a witness must be in consonance with the probabilities litting in the circumstances of the case and also inspire conftdence in the mind of a f 0d- reasonable prudent man. If these elements are present, then the statement of the worst enemy, of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought."

Nawab (D.8.) Hon'ble Mr. Justice Mohammad lbEhlm Xhan Hon'bl6 Mr. Justica lshtiaq lbrahim

- ll -

v Here in this case the prosecution version is un-natural and unbelievable as no one has come forward to state the fact other than Mst. Amir Zadgai PW-2 and PW-4 Bakht Zaman. The other alleged eyewitness PW Jameel has not been examined.

Reliance in this regard has been placed on 2!!3.

SCMR 1391 "Gul Muhammad vs The State and @". The relevant citation of the said esteem judgment is reproduced as under:- of Pakiston -5,302--Constitution (1973), Art.185--Appeal against acquittal-Appraisal of evidence-Eye- witnesses were closely related to the deceased and in the background of enmity established on record-They were interested witnesses whose presence at the scene of occunence was neither natural nor probable and explanation given by them for their presence lacked plausibiliq,-No tangible proof was available on record that the accused and co-accused had tired at a particular place and prosecution story in that respect clearly smacked of fabrication on account of td- non-tecovery of any empty from the said place-Conflict between the ocular and the medical evidence also excluded the presence of the eye-witnesses at the place of occurrence-Ocular evidence was too weak and unreliable to sustain conviction and its defects could not be cured by corroborative evidence and in any case it was not supported by the Naw.b (D.8.) Hon'ble Mr. Justice Mohamm.d lbEhlm Khan Hon'ble Mr. Justice lshtlaq lbnhlm

v' medical evidence-Motive set up in the F.I.R. was not directed against the deceosed-Circumstances and incriminating recoveries could not serve as corroborative piece of evidence when the ocular evidence h,as not believable-Stereotyped reasons recorded by the Trial Court stood repelled in the face of the reasons leading to the acquittal of the accused which were not perverse, fanciful or speculative. Prosecution, in circumstances, had failed to prove its case against the accused persons beyond ony reasonable doabt and the groands of acquittal by the High Court could not be termed as perverse, fanciful and speculative which was a precondition for the reversal of judgment of acquittal-Supreme Court dismissed the appeal against acquittal, It is also much significant that while examining PW-4 Bakht Zaman he was declared hostile. In the opening line of his examination-in- chief he has utterly denied that he was not present at the spot when this occuffence took place. Even yr-/--"ross-examined by the State counsel yet the f probative worth of his testimony could not be shattered

a, fi 7t i t ri' lA (t ;t d, c)g,, /; !.- * ( 1 This means that this witness even if has not been declared hostile was telling lie as he was Nawab (D,8.) Hon'bb Mr, Justlc! Mohammad lbEhlm Khan Hon'blo Mr. Justlcc lshtlaq lbEhlm

V not present at the spot. Reliance has been placed on PLD 1989 Supreme Court 20 " Habib-ur-Reham Khan vs Sved Mustafa Abbas", wherein the relevant citation (e) reads:-

" Appreciation of evidence. Witnesses having had resiled from their earlier statements and turned hostile. No importance to be attached to the testimony of such witnesses.

It is extremely hard when there is solitary eyewitness and to hold that she has seen the occurrence then statement of such an eyewitness must be of an unimpeachable character as it should come straight from all corners that the witness was present at the spot and had seen the occurrence. But the cross-examination of PW-2 Mst. Amir Zadgai would suggest that she being an old lady and besides being Pardanasheen when the occurrence had taken place the distance between the mosque and the house fallen to be 15120 paces and was attracted to the place of occuffence within 2 minutes would r rd- definitely lead to an inference that the occurrence is un-witnessed. Reliance has been placed on PLJ 1978 Supreme Court, 247 " Mumtaz-ud-Din vs The W", wherein the relevant citation reads:- "Prosecution cose resting on solitary eyewitness whose evidence was full of intirmities. Prosecution failing to prove N.wab (0,8,) Hon'ble Mr. Justicc Mohammad lbrahlm Khan Hon'ble Mr. Justlce lshtiaq lbEhlm

v guib of accused beyond reasonable doubt. Appeal allowed,

10.Now coming to the recovery of Kalashnikov alongwith charger and l0 cartridges allegedly recovered from personal possession of the accused/Appellant, suffice it to say, that the alleged recovery of this weapon i.e. Kalashnikov has been effected after long lapse of 12 years as the occurrence in the main case was happened in the year 2001 whereas the alleged recovery of weapon was effected in the year 2013. Though, the FSL report has been furnished in positive to the effect that the Kalashnikov has been found in working condition yet when the evidence in the main case has already been disbelieved against the accused/Appellant in all probabilities, this recovery of weapon would hardly be of much significance in respect of guilt of the f d accused/Appellant in the present case. Even otherwise, it is settled by now that the recovery of empties etc are always considered to be corroborative piece of evidence and such kind of evidence by itself is not sufficient to bring home the charges against the accused especially when Namb (0.8.) Hon'ble Mr. Justica Mohammad lbEhlm (h.n Hon'ble Mr. Justlce lshtl.q lbEhlm

v the other material put-forward by the prosecution in respect of guilt of the accused/Appellant has already been disbelieved

It has been affirmed by the Hon'ble Supreme Court of Pakistan in case cited as 2001 SCMR 424 " Imran Ashraf and 7 others vs the State" in the following manner:-

"Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony, Ocular evidence ond recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion."

Likewise, if any other judgment is needed on the same analogy, reference can be had of 2007 SCMR 1427 " Dr. Israr-ul-Haa vs Muhammad Fawaz ond another", wherein the relevant citation

(c)enunciates:

"Direct evidence having failed, ,,*)-' corroborative evidence was of no help. f ll/hen ocular evidence is disbelieved in a criminal case then the recovery of an incriminating article in the nature of weapon of offince does not by itself prove the prosecation case.

11.The gist of the whole discussion is that the prosecution case against the Nawab (0.8.1Hon'bl! Mr. Justlco Mohammad lbnhlm Xhan Hon'bl6 Mr. Justlcr lshtiaq lbGhlm

Y accused/Appellant is pregnant with doubts. It is settled principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by the apex Court in the case of "Tario Pewez v. The S tate 1995 SCMR 1345 "that for the benelit of it was not necessarv that t, should be manv circumstances creating doubts il If there is circumstonce which created reasonable doubt in a prudent mind about the suilt of the accused.

then the would be entitled to the benefit of doubt not as a matter of grace and coneeglon but as a matter of right.

Similar citation of judgment 2008 SCMR 1221 "Ghulam Oadir and 2 others vs the State " Supra enunciates :-

FS- "Benetit of doubt. Principle of C applicability. For the parpose of benetit of doubt to an accused, mote than one intirmity is not required. Single intirmity creating reasonable doubt in the mind of a reasonable and prudent person

N.w.b (D.8.) Hon'blc Mr. Justice Moh.mmad lbnhlm xhan Hon'ble Mr. Justlcc lshtlaq lbEhlm

v regarding the truth of charge, makes the whole case doubtltal. "

12.In view of the above discussion, we are of the firm view that the prosecution failed to prove its case against the accused/Appellant beyond any shadow of doubt; therefore, his conviction cannot be maintained, ergo, while extending the benefit of doubt, w€ accept both these connected appeals by setting aside his conviction and sentences recorded by the learned trial Court through the impugned judgments of even date and acquit him of the charges leveled against him. He be set free forthwith, if not required in any other case.

14.These are the detailed reasons for our short orders of even date

Announced. f fi*) Dt:07.11.2017

tItlte d .ff{

Nawab (D.8.) Hon'ble Mr. JusticG Mohammad lbnhim xh.n Hon'bb Mr. Justlco lshtlaq lbEhim