Abdullah Vs The State

JUDGM SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judiciat DePartmentl J Cr. A No. 215-Pl2A23

Abdullah Vs The State

JUDG ENT

Date of hearing: 26.06.2024

Appellant bv: Mr. Shahbir Hussain Gigvani, Advocate.

The bv: Mr. No Kakakhel. AAG

Complainant bv: Sved Mubashir Shah & Mr. Saddam Hussain, Advocates.

SAHIBZADA ULLAH. J.- Thro ugh this single judgment, this court shall also decide the n'Raheem connected Gr.R No. 38-P12023 titled Khan vs Abdullah etc" as both the matters are arising out of one and the same judgment dated 26.01.2023 passed by the learned Additional Sessions Judge-|, Swabi delivered in case FIR No.1125 dated 28.10.2017 under sections 302 PPC at police station Swabi, whereby the appellant Abdullah son of lsmail was convicted and sentenced as under:

Under section 302(b) PPC to imprisonment for life as Tazir

and to PaY a fine of Rs.10,00,000/- (ten lacs) to be paid to the legal heirs of the deceased Haider Khan within the meanlng of section StlthA CrPC to be recoverable as affears of tand revenue and in default of PaYment, he shall further suffer six months simple imPrisonmenL Benefrt of section 382-8 Cr,PC was extended in favor of the appellant,

2.Facts forming the background of the instant case are that on 28.10-2017 compfainant Raheem Khan son o'f Zareef Khan reported the mafter in the causality DHQ Hospital Swabi to the effect that he alongwith his son Haider Khan, after performing Zuhar prayer, were coming from the Mosque Khaista Khan; that his son was ahead of him to their house when in the meanwhile, Abdullah son of lsmail, duly armed with deadly weapon suddenly appeared and started firing at his son Haider Khan as a result of which, his son was hit and died on the spot. After the occurrence, the accused decamped from the spot. The occurrence was stated to be witnessed by Mursaleen son of Salat Khan (grandson of

complainant) alongwith other persons present there. Motive behind the occurrence is that the daughter of the deceased was married to accused and the accused divorced Mst.Sheema some 7/8 months ago and a dispute over womenfolk was existed. He charged the appellant for the commission of offence hence, the present FlR.

3.After completion of investigation, complete challan was put in court. Provisions of section 265-C CrPC were complied with and, the appellant was charge sheeted, to which he pleaded not guilty and claimed trial. ln order to prove its claim, the prosecution produced and examined as many as 08 witnesses. After closure of prosecution evidence, statement of appellant was recorded under section 342 CrPC, wherein he posed innocence, however, neither he wished to be examined on Oath as required under section 340 (2) Cr.PC, nor wanted to produce evidence in defence. The leamed trial Court, after full-fledged trial convicted and sentenced the appellant, fully detailed in the earlier part of this judgment, hence, this appeal.

4.Arguments of learned counsel for the parties and learned AAG representing the State were heard and record scanned through with their valuable assistance.

5.The tragic incident claimed life of the deceased. The dead body was shifted to the hospital and the matter was reported. The injury sheet and inquest report were prepared, the dead body was sent for postmortem examination. The lnvestigating Officer after receiving copy of the FIR visited the spot and on pointation of the witnesses, prepared the site plan. During spot inspection blood-stained earth was collected from the place of the deceased and 06 empties of .30 bore from the place of the accused. The collected empties were sent to the firearms expert and a report was received telling that the same were fired from one and the same weapon. Soon after the incident, the accused went into hiding till his arrest. The appellant faced the trial and on conclusion of the trial the learned trial court was pleased to hold him responsible for the murder of the deceased.

6.The leamed trial court appreciated the evidence on file and it was after applying of

its judicial mind to the evidence collected by the prosecution that the learned trial court came to the conclusion that it was the appellant who killed the deceased. True that single accused is charged and equally true that in case of single accused substitution is a rare phenomenon. But the charge against single accused by itself is not the determining factor, rather under all circumstances, the prosecution is bound to prove its case, that too, by producing trust worthy and confidence inspiring witnesses. ln order to appreciate the approach of the leamed trial court we deem it essential to revisit the record of the case and to reconsider the statements of the witnesses so that miscariage of justice could be avoided.

7.The points for determination before this court are as to whether the incident occurred in the mode, manner and at the stated time; as to whether the witnesses were present on the spot 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; as to whether the prosecution succeeded in proving the alleged motive and as to whether the prosecution

succeeded in bringing home guilt against the appellant.

8.The deceased after receiving firearm injuries died on the spot and for his murder single accused is charged that too by the father of the deceased and by an eye witness claimed to have seen the occurrence.

This court is to see as to whether the prosecution succeeded in bringing home guilt against the appellant and that it was the appellant who killed the deceased. ln order to appreciate the circumstances of the present case, we deem it essential to go through the statements of the witnesses. The complainant was examined as PW-3 whereas, the eye witness as PW-4. The complainant disclosed that on the day of incident while coming back from the mosque, the appellant fired at the deceased, and after receiving firearm injuries, the deceased died on the spot; that the dead body was hurriedly shifted to the hospital, where he reported the matter. The eye witness supported the report of the complainant and he also explained the circumstances in which the incident occuned and the dead body was shifted to the hospital. The witnesses were put

to lengthy cross examination with the strongest desire to enract somelhing favourable to the appellant. Admittedly, the incident occuned in the village of the complainant, that too, when the deceased performed his Zuhar prayer. As the incident occuned at 13:30 hours so lhe stance of the complainant gets support regarding his prayer in the mosque. The site plan depicts that the mosque is situated adjacent to the place of incident and that by the time the deceased had already come out ftom the mosque followed by the complainant and the eye witness. As lhe complainant was a farmer by profession, so his presence in the village at the stated time is not only convincing, but also appeal to the prudent mind of this court. Keeping in view the age of the complainant, it can be expected from a person of the age to perform prayer in congregation, and keeping in view the time of incident we cannot take another view, but lhe one that after doing his work in the field, the complainant retumed home to take meal and to perform his prayer. An attempt was made to convince that had he been a farmer by profession, then under all drcumstances he would be present in

the fields instead, in the village and that in routine all the farmers come home in the evening. We are not persuaded with this limb of the argument, as it depends upon the nature of work, the kind of fields and the distance of the fields from the village which would determine the availability or otherwise of the complainant in the village. As admittedly, no specific question was asked from the complainant regarding the distance of field from the village, regarding the nature of his work and regarding the crops he sown, so this court is confident in holding that the availability of the complainant at the stated time is convincing and it appeals to the judicial mind of this court. The defence also questioned the presence of the eye witness at the time of incident, but when the eye witness was examined as PW4, he explained his presence on the spot and in the mosque on the day of incident. True that during the days of incident, the eye witness was a student, but equally true that nothing was brought on record that at the stated time he was present in the school and even the investigating officer could not collect any document in that respect. An attempt was

made to convince the absence of eye witness from the spot at the stated time, so the attention of this court was invited towards the report of the complainant and towards the fact that while reporting the matter, the complainant did not disclose that the eye witness also performed his prayer in the mosque alongwith him. As the complainant is illiterate, so we cannot expect minute details from him and even the first information report is not an encyclopedia which would contain the complete details of the incident, rather its purpose is only to bring the law enforcement agency into motion and once the investigating agency accepts the task then it is for it to collect the evidence and to record statements of all concerned. Even otherwise, while reporting the matter the complainant has mentioned the name of the eyewitness and when the eyewitness was present at the stated time, no other inference can be drawn but the one that he was present with the complainant in the mosque and after performing his prayer he was also available in the street. Reliance in this respect is placed on the judgment cited as 2021 SCMR 1 428 litled "Abdul Latif vs Noor

Taman and another, wherein, it has been held as follow:

"No doubt, Flrst lnforma on Report ls not an encyclopedla ot prosecutlon's casq aonetlreless, It does contaln certaln detalls that servos as lE malnstay ln the voyage; wl',tesses are the most promlnent paft of those detarrs as thelr testlmonles provlde evldentlary certalnty regardlng the gullt of an offender."

9.The dead body of lhe deceased was huniedly shifted to the hospital and the matter was reported by the complainanl. The scribe was examined as PW-5 who disclosed that on the day of incident he was performing his duty in the Casualty of DHQ Hospital, Swabi, on anival of the dead body to the hospital the complainant reported the matter and he prepared the injury sheet and the inquest report. The dead body was examined by the doctor at O2:2O PM. The leamed counsel wanled lo convince that the quick suc@ssion of events by itself is a circumstance which belies lhe stance of the complainant and that neither the mauer could be reported in the shortest possible time, nor the post mortem

examination could be conducted' We are not inclined to accept the submission of the learned counsel on this particular aspect of the case, as admittedly, the hospital was situated at a short distance connected to the spot through a metal road. Even the doctor confirmed the time between injury and death as immediate and the time between death and post mortem about 4O-minutes. The witnesses were cross-examined regarding the shifting of the dead body from the hospital, regarding the kind of lransport used and arranged for the purpose. The witnesses explained that the motorcar was the ownership of one Said Qamar Khan. lt was further explained by the witnesses that they shifted the dead body of the deceased with the help of PW Said Qamar Khan in his motorcar. lt is pertinent to mention that the report was verified by the same very person. The consistency between the statements of the witnesses and the verification of report by the owner of the vehicle by itself is sufficient to tell that the dead body was promptly collected from the spot, hurriedly shified to the hospital and the matter was reported with no loss of time. True that the

complainant in reply to a question responded that they visited the police station but he did not report the matter. The witness further explained that he stopped in the police station for few minutes and thereafter went to the hospital. As on one hand, the complainant was of extreme old age, whereas on the other being illiterate he did not understand the nitty gritty of the matter and he could not understand the intention of the learned counsel, when such a question was asked. There is no denial to this fact that the matter was promptly reported, the dead body was examined by the doctor soon after the report was made and that the post mortem examination was conducted within the shortest possible time. The prompt report by itself has excluded the possibility of consultation and deliberation and we are not inclined to hold that the matter was reported after preliminary investigation' As is held in case titled Ghafar Ali Vs The State and another" (2021 SCMR 354), which reads as follows: -

"The occutrence, according to prosecution, took Place at 4 Pm, injured and deceased were shifted to the hospital where iniured was

medicaily examined at 5.10 P.m.

The report was lodged to the police in the hospital at 5.10 P.m. and formal FIR was chalked out at 5.40 p.m. So within one hour and ten minutes of the occurrence the injured and the deceased were shifted to the hospital and police arrived there and matter was reported by the complainant to the police at 5.10 p.m. There was hardly any time left in between for co n s u ltatio n an d del i be rati on."

10.The investigating officer visited the spot and on pointation of the witnesses prepared the site plan. During spot inspection blood was collected from the place of the deceased and 6 empties of .30 bore near from the place assigned to the appellant. The investigating officer while preparing the site plan has shown the mosque in which the complainant and the eyewitness and the deceased performed their prayer. True that the investigating officer did not record the statement of any other witness in that respect and he did not record the statement ol'Pesh-e- lmam" of the mosque, but that is not the determining factor, as people refrain to become witnesses because of fear of enmity. The

presence of all concemed in the premises is not beyond understanding. As the complainant disclosed the distance between his house and the mosque as 100 paces, so we are inclined to hold that the mosque was the only mosque which was situated near to the house of the complainant and so the complainant along with the eyewilness and deceased went to perform their prayer. True that no other witness apart ftom the complainant and the eyewitness came to confirm the presence of lhe witnesses in the mosque before the occunence, but keeping in view the time of incident, the profession of the complainant and the age of the complainant this court is confident in holding that his presence in the mosque was natural and his presence near the spot at the time of incident is convincing. Both the witnesses were questioned regarding this aspect of the case, but we could not come across any substiantial contradiction and we despite efforts could not lay hands on any evidence which would contradict the stance of the witnesses. The collection of blood and collection of empties from the spot are the circumstances which lend support to the stialements of lhe witnesses and

which has strengthened the prosecution case to a great enent, True that lhe witnesses are closely related to the deceased, but equally true that the defence could not bring on record any evidence confirming their mala fide or their interest to implicate falsely the appellant. Even otheMise, it does not appeal to the judicial mind of this court that a real father would substitute an innocent person for the killer of his son and under no circumstances would let off the actual culprits. The mere rolationship of the Mtnesses would hardly be a circumstance for holding them unreliable and for excluding their testimony of consideralion. Once the defence fails to allege mala fide to the witnesses and once it comes on record that the witnesses had no interest to falsely implicate, then under all circumstances the statements of the witnesses must be tiaken into consideration.

ln the like circumstiances we are benefrted from the judgment of the apex court reported as Muhammad Uaz Vs, The Stafe (2023 SCMR {375), which reads as under: -

"There ls no denlal to thls tact that these PWa were related wlth the deceased but the law In thls regard ls well seflled. A related

vvifness cannot be termed as an interested urifness under all circumstances. A related wifness can also be a natural witness. lf an offence is committed within the presence of the famtlY members then they assume the Position of natural wifnesses. ln case, their evidence is reliable, cogent and clear, the prosecution case cannot be doubted, However, a related wifness would become an interested witness when his evidence is tainted with malice and it shows that he is desirous of implicating the accused bY fabricating and concocting evidence but the learned counsel for the petitioner could not show us anything in this regard."

't1. The appellant is singularly charged and the inter-se relationship between the appellant and the deceased cannot be ignored.

The record tells that the daughter of the deceased was manied to the appellant. The relationship between the spouses became strained and ultimately it led to the divorce. The relationship between the parties is established on record and even the marriage between the appellant and Mst. Sheema has also been admitted by all related. The unfortunate

deceased was working in UAE and it was few months back that he returned to his home' lt is pertinent to mention that the maniage between the parties stood dissolved some 7/8 months before the incident and the unfortunate deceased lost his life because of the same' lt was submitted that in case of divorce it was the deceased to retaliate and not the appellant, but we cannot ignore that it was the divorce which urged the appellant to retaliate and that it was the deceased who was suspected for bringing the spouses to the point of no return' As admittedly, before the divorce the parties had no ill-will and no serious incidents took place between the parties, which can be assessed as the cause of killing. As the witnesses remained consistent, as the accused is singularly charged, so the consistency between the witnesses and the strained relationship between the parties, are the circumstances which must be taken into consideration' Even otherwise, in case of single accused substitution is the rarest phenomenon. Reliance can be placed on the judgment of august Supreme Court of Pakistan titled "lmran Mehmood Versus the State and

l8

ano rcf'(2023 SCMR 795), which reads as follows

"Leamed counsel lot the appellant could not Polnt out anv reaso, as to whY the comPlalnant has talsely lnvolved the appellant In the present caae and let ofl the rea! culprlt, who has brutallY murdered her falher and uncle.

suhstttutlon ln such llke cases ,s a rare phenomenon,"

12.The medical evidence supports the case of the prosecution. The doctor explained that the deceased received throe firearm entry wounds and he also disclosed the time between injury and death i.e. instantianeous and time between death and postrnortem about 40 minutes. The medical evidence is in line with the ocular account and we, despite efforts, could not come across any substantial conflict between the two. The harmony between the medical evidence and ocular account has further substantiated the claim of the complainant and, the same has strengthened the case of the prosecution. We are benefited from the judgment reported as 12022 YLR 324) titled "Shafiuddln allas

sharfu and another Vs. The state" it is held that -

"The medtcal evldence fullY supports the ocular account so far the Inlurles recelved bY the deceased tlme whlch laPse between the Inlury and death and belween death and Postmortem."

'13. The lnvestigating fficer collected 06 empties of .30 bore from the place of accused, the same were sent to the firearms expert to ascertain that from how many weapons the same were fired. A report was received telting that the same were fired from one and the same .30 bore pistol. True that the laboratory report is supportive in nature and, il alone cannol be pressed into service for convicting an accused, but once the ocular account inspires confidence, then this piece of evidence can be taken into consideration and it by itsef would lend supporl to the prosecution case and lo the statements of the witnesses.

14.The motive was alleged that the daughter of the deceased was manied to the appellant and that the relationship between the spouses became strained and ultimately it led to the divorce some 7/8 months prior to the

incident. The relationship between the parties is established on record and even the marriage between the appellant and Mst. Sheema has also been admitted by all related. A question was put to the appellant while recording his statement under section 342 CrPC regarding the divorce of the deceased, he admitted that he had divorced Mst. Sheema, who was the daughter of the deceased. lt was submitted that in case of divorce it was the deceased to retaliate and not the appellant, but we cannot ignore that it was the divorce which urged the appellant to retaliate and that it was the deceased who was suspected for bringing the spouses to the point of no return. As admittedly, before the divorce the parties had no ill-will and no serious incidents took place between the parties, which can be assessed as the cause of killing.

15.The record tells that the appellant remained absconder for considerable long time as the occurrence took place on 28.10.2017 and the accused was arrested on 20.08.2020, which he failed to explain and as such the same c€ln be taken into consideration in support of the other evidence on file. True that

2l

abscondance by itself is not sufficient to hold an accused guilty, but when the prosecution succeeds to bring home guilt against the accused charged, that too, through trustworthy and confidence inspiring witnesses, then unexplained abscondance can be taken into consideration and the same was rightly considered by the learned trial court.

16.The cumulative effect of what has been stated above leads this court to an irresistible conclusion that the prosecution fully succeeded in bringing home guilt against the appellant and the impugned judgment is suffering from no irregularity or inherent defects which would call for interference. The impugned is well reasoned and the learned trial court fully appreciated the evidence on flle, which calls for no interference. The instant criminal appeal, being bereft of any merit, is hereby dismissed.

17.Now diverting to criminal revision No.38-P/2023 titled "Raheem Khan ys Abdullah efc" through which the petitioner/ complainant has requested for enhancement of the awarded sentence. In order to appreciate this aspect of the case, we once again went through the impugned judgment to know as to

why the learned trial court failed to award the normal penalty of death. Though no plausible reasons are given, yet this court is to see as to whether the learned trial court was justified to award the awarded sentence or the same calls for interference. As admittedly, the parties were closely related and the unfortunate incident occurred because of the divorce of the daughter of the deceased, who was married to the appellant. The record is silent that what happened between the spouses which led to the tragic incident and that why the appellant got instigated to such an extent that he killed the deceased. As the relationship between the spouses could not be explained and as the witnesses kept mum that what led the parties to separate and that who was instrumental for the divorce, so this court is inclined to hold that though the daughter of the deceased was divorced 5/6 months before the return of the deceased from UAE, but it was few months after the return of the deceased that the unfortunate incident occurred. As the deceased was done to death that too by the appellant who was the husband of his daughter, so the silence of the prosecution regarding the nature

of relationship between the parties had added to our anxiety and it is the concealment of some facts regarding the actual cause of killing which persuaded this court to take the same view as is taken by the learned trial court. As the actual cause of killing is still shrouded in mystery and as the witnesses failed to explain the circumstances prevailed between the spouses, before dissolution, so this uncertainty regarding the motive and regarding the cause of killing is a circumstance which persuades this court that the learned trial court was justified to award the awarded sentence and the same does not call for interference. The instant criminal revision petition is lacking substance, which is hereby dismissed.

Announced

JUDGE

JUDGE

*Muhammad Fiaz* *I).8* Hon,bleMr. Justice Syed Anhad Ali, J Hon'ble Mr. Justice Sahibzada Asadullah, J