Ijaz Ullah Vs Shireen Zada & others

TUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) Cr.A No.221-1Wl015 Ijaz Ullah son of Bakht Nawab....... ......(Appellant) v/s Shireen 7,ada & others......... ..........(Respondents) Present: lvlr. Shah Bros Khon, Advocate, for the opp e I I ant / c ompl ainant.

Mr. Khan Bahadar Khan, Advocate, for the ac cus e d/r e spondents.

Syed Sultanat Khan, Astt: A.G, for the State.

Date ofhearing:- 20.09.2023

Date of announcement:- 26.09.2023 SHAHID KHAI\. J.- Impugned herein is the acquittal of Shireen Zada and Shireen Gul, respondents hereinafter, whereof, the appellant/ complainant,ljaa Ullah has called in question their acquittal in case of FIR No. 210 dated 21.07.2014, U/Ss 302134 PPC, P.S, Aloch, District Shangla, recorded by the Court of learned Sessions JudgelZila Qazi, Shangla, (Carnp Court at Swat), through the impugted order/judgment dated 28.08.20 1 5.

2.As per prosecution story, the police contingent headed by Hazrat Rehman Na Itron'ble Mr. Justioo Shahid Khan

Kharl ASI, P.S Chowga rushed to the venue of crime, pursuant to receipt of information that an offence of murder has taken place in the vicinity of village Pandoria. At the spot, the liu Ullah, in the company of his mother, Mst. Hussan Bibi reported the subject event to the local police to the effect that about 15116 years back his deceased father, Bakht Nawab was charged for the murder of one Hazrat Khan, in which respect compromise was effected with the intervention of elders of the locality and a civil litigation was also pending adjudication with regard to a piece of land known as "Ghwand Barkln t with one Faridoon Khan. The accused/respondents, Shereen Zada & Shereen Gul were working as tenants in the aforesaid property under Faridoon Khan. The accused were annoyed due to pendency of the civil litigation in respect ofthe property in question and wanted to take revenge of the murder of their father. On the relevant day, date & time, his father was coming to his home from village Pandoria and when he reached near the Nrv.b (D.B) Ildltt! Mr. Junio. Mub.mmd NEGn aNl[ llor'bh Mt. Junic. Shihid Klu!

;d,

disputed property, (which is situated in front of the house of the complainant), the accused/ respondents, named above, emerged from the nearby maize crop and started altercation with his father. The complainant and his mother Mst.

Hussan Bibi were also attracted to the spot, upon hearing the noise of the quarrel. The accused/respondents, (while being duly armed with axes) started beating his father. As a result of repeated axe blows of both the accused, his father got injured on his head and fell-down on the ground. The father of the complainant succumbed to his injtnies and died at the spot.

The occurrence was claimed to have been witnessed by the appellant/complainant and his mother Mst. Hussan Bibi. Motive for the commission of offence was stated to be previous ill-will over a piece of land.

3.The accused were initiallY avoiding their lawful arrest, therefore, proceedings under section 512 Cr.P.C were initiated against them.

Nawab (D.B) Hontlc Mt. Justico Anwer Hon'blo Mr. Justico Sh.hidKhm

4.Upon anest of the accused/

respondents followed by completion of the investigation, supplementary challan was drawn and was sent-up for trial to the leamed trial Court. Accused./respondents were confronted with the statement of allegations through formal charge-sheet to which they pleaded not guilty and claimed tial.

5.To substantiate the guilt of the accused/respondents, the prosecution fumished its account consist ofthe statements often (10) witresses. The accused were confronted to the evidence so fumished through statements of accused within the meaning of section 342 Cr.P.C.

6.On conclusion of the trial, in view ofthe evidence so recorded and the assistance so rendered by the leamed counsel for the accused/respondents and the leamed counsel for the complainanUlearned State counsel, the leamed trial Court arrived at the conclusion that in view of the evidence so recorded and assistance so provided, allegations against the Ndx.b (D.B) Hooth lrr. Juic. MdrDD.d Ns.m Arwr IloE bL Mt, Junic. Shrftid Klt o

v accused/respondents are tainted with the doubts, as such, by extending the benefit of the doubt, the acquittal of the respondents/accused were recorded accordingly.

7.It obliged the appellant/ complainant to approach this Court through the subject criminal appeal.

8.Arguments of the learned counsel for the parties as well as the learned Astt: A.G for the State have been heard at a substantial length and the record gone through with their _o e) valuable assistance.

9.The record so fumished would

reflect that in the subject event the law of the land was set into motion by the complainant, Ijaz Ullah, son of the deceased, Bakht Nawab, when he reported the subject everrt to the visiting parly of police, who athacted to the spot, pursuant to receipt of information about the murder of the deceased. It was alleged in the 'Murasila' Ex. PA/l followed by FIR Ex. PA that on the relevant day, date & time, father of the complainant, Bakht Nawab was on his way Nawab (D.B) Honble Mr. Iustioc Muhrmnad Nrccm Arwar Hon'ble Mr. Iusticc ShshidKh.n

to his resident from his aativevillage pandoria.

The moment, he alrived around the disputed property known as Ghowand Barkha, the accused/respondents, Sheerin Zada & Shereen Gul, (duly equipped with axes), emerged from the nearby maize crops and engaged in altercation with his father. On report of the noise ofthe exchange ofhot & harsh words, the complainant & his mother, Mst. Hussan Bibi rushed to the venue of the crime in order to pacify the altercation and to save the deceased from the clutches of the accused-party. Bottr the accused/respondents were alleged to have given repeated a(e blows to his father, as a result of ig he got injured on his head and fell-down on the ground. The accused were also alleged to have been thrown the deceased downwards and escape from the spot, after commission of the offence.

10.In the subject even! the ocular- account is consisting of the solitary statement of the appellanUcomplainant, Ijaz Ullah. He appeared in the witress-box as PW-I. In his examination-in-chief, the appellanVcomplainant NsS(DB) IlmtL Ntr. fudia. Mo.l$nd Nem ANa Hm'bhMr. Jlsic. St& Xts

reiterated almost the same facts & figures as advanced rn the 'Murasfla' followed by the FIR" however, his examination-in-crpss is of much significance in context of the case in hand. In his examination-in-cross, the complainant has made the following admissions in respect of the departure of his deceased father & arrival to the venue of crime;- ,iE ig,l 6 s o$.O.tf :? it :tJ/, 6 ;,' $.-/L,-t t,z. fi h A ua4 t',v,.t /,,t tl' t r +,1-S gt'i, :,., -2, a r r, tu L :i : -7 q$b,)x L {z I t &fl e /t,u-a4,/vd clr L,u r/:', L ri,rl Jut4-ul, zr t/-d,l nt,,tt,,U 6y,g, t r 4o,g L t /,.t,t, 2 :r,1 t!, P -,! 3 /f r$lt{,t', -t! 1 il 4-tfiv,P i-rtt cd -i,tt L "t/l /,,tr,6 s -gvul r, du aLv Lfio I n a/+,h *-t, -!-i-t"s),! 4 -,/ "i 6,5,4,etu,-($y'lo I ng7 -l"uijy,t l-,htn 6,5,4 eLV-a -g ho I n.t tll,t(t,2,3 tt

If we put in juxtaposition the aforesaid admissions of the complainant EE against the site plan" Ex. PB, the distance between the house of the complainant and the place of occwrence is shown as 30/40 yards.

Likewise, in the site plan, the pointation of the eyewitnesses i.e. the complainant, his mother Mst. Hussan Bibi and sister Mst. Shazia have been shown at points No. 4, 5 & 6, it is at a NElr Nrrls(DB) lloD$L Nk. Jtdicc Sh.hi'fKhr Ifo$'bL Mt, tudic6

distance of l0 to 12 yards from the house ofthe si) highliehted in the site plan, Ex.

Similarly, the deceased & both the accused/respondents have been shown at points No. l, 2 & 3, n the site plan. The distance between points No. 4,5 & 6 and points No. 1,2 & 3 is about 30 to 40 yards. It is next to unbelievable that a person at the distance 30/40 yards could be able to hear the report of noise./hue & cry from a considerable distance.

11.Other than the above, the appellanUeyewitness, if, being had been around the scene of occurrence and being empty- handed, his natural behavior should be to rustr to the victim/tris injured father and attempt to rescue him either for first-aid or to rush him to the hospital. Being his real father was about to expire, the natural behavior ofa son shall be to take him at least in his lap and in this exercise of first-aid, his garments should have been besmeared with the blood of the victim. The stong circumstantial evidence is the blood stained gafinents of the witness has either been not delivered by the witness to the Investigation Mdrammrd ltaanr AIwr Iloo'U. Mr. Junicc Shddd Kho

Officer or it has not been asked for its collection by the Investigation Officer, as such, the subject circumstantial evidence is not the part of the investigation followed by the tial.

On this score the very presence of the PW-l at the fatetul time is tainted with doubt. I{, the subject evidence as blood stained garmeuts of the complainant/appellant/witness could have been procured and after F.S.L analysiV comparison of the blood stained garments of the deceased and the blood stained garments of the complainanUwitness being found to be of same blood group, the presence of the eyewitness on the spot at the fateful date, day & time could be hard to be disbelieved. However, not to procure the subject circumstantial evidence left behind a wider scope for a doubt & dent regarding the presence of PW-l (Ijaz Ullah), what to say, of his presence on the spot at the fateful time rather he may athact to the scene of occurrence even after the departure ofthe dead body ofthe deceased from the spot to the mortuary/hospital.

12.In the circumstances, the accused is confronted with the set of allegations of an lLw.b (D.B) II@th Mr. Jdi.. Muh.El!.d Netrl Arrvrl Ilor'bL Mr. Jldk! St hid xla

offence carries capital punishmen! the evidence shall be of a high degree to be worth believable, whereas, in the event in hand, the leamed trial Court is all correct in his mind as to disbelieve the solitary statement of a witness whose presence on the spot at the fateful time is tainted with doubt. Moreso, during the investigation the circumstantial evidence so collected & fumished during the trial was being not of the standard which could connect the accused/respondents with the commission ofoffence beyond the rernote chance ofdoubt to convince the prudent mind regarding the due involvement of the accused/respondents in the commission of offence and on this score it is observed that the leamed tial Court while taking consideration the facts & circumstances of the event in view of the evidence so fumished and the assistance so availed has arrived at the just conclusion of the evelrt followed by acquittal of the accused/ respondents by extending them the benefit of doubt not as a matter of grace but as matter of due legal right.

l.Iiwrb (D,B) llonbL Mr. ,udh. MuluErrd N.!.m Arw'r Hon'bl. Mr. Jdioc Si.tid Kf,.n

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13.There is no second opinion about the fact that testimony of a solitary eye-witness ifrings true can be taken into consideration in order to sustain conviction of an accused/ percon, as it is quality of a testimony which shall be given preference instead of quantity, however, in contest of the subject casg as highlighted in the preceeding Para of this Court not only the very presence of the complainant at the spot (berng a solitary eye-witness) is doubtful but the mode & manner of the -b e) occurence right from the very inception is standing in vacuum. It is part of the record that the complainant has neither bothered to inform the local police about the death ofhis father nor he shifted the dead body to the hospital rather the same was kept n the Baitak of his uncle Noor Nawab. It was the local police who athacted to the spo! pursuant to receipt ofprior information about the murder of the deceased, therefore, the very conduct & demeanor of the ls The

complainant also admitted in his testimony before the Court that the house of his uncle as lrr. Jurti.c MulED[rd Nsn Arwi lloo'blc M'. Judi(r stdid xho

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well as Hujra is situated near & around the place of occurrence, however, these important features of the prosecution's case have not been made pfrt & parcel of the site plan, Ex. PB.

Even the testimony of the Investigation Officer of the subject event, Muhammad Bashar Khan, (PW-8) is adamant of the fact that the revelation & disclosure advanced by the complainant is not appealable to a prudent & sound mind. The Investigation Officer has made an admission in his examination-in-cross to the effect that the s€ place of occurrence vis-i-vis the house of the complainant and the places assigned to the eyewitnesses in the site plan at points No. 4,5 & 6 have been proximately of equal distance.

Thus, the very presence of the eyewitnesses at the relevant time & place appears to be highly unreasonable and unnatural and thus the prosecution has not been able to prove their presence at the scene of occurrence at the relevant time, hence, their evidence has rightly been discarded by the learned trial Court qua the guilt of the accused/ Na Hon'ble Mr. Justioe Shshid Kheo

respondents. In a situation, akin to the present one, in case titled (Sarfaraz & another u/s The State" reported as 2023 SCMR 670, the Apex Court has held as under;-

Not a single person from the inmates of the house where occurrence took place or from surrounding inhabitants appeared in support of the prosecution vergion and the whole prosecution case wrs silent about this aspect of the matter. Record clearly reflected that thc prosecution witnesses were not present at the place of occurrence, rather they managed to appear as witnerses after due consultation and deliberation. Record further showed that the complainant was himical towards the deceased. In such circumstances, it seemed inpossible that deceased would have lnvited an inimical person for hir help before his death. Prosecution had failed to prove its case beyond any reasonable shadow of doubt Similarly, in case titled "Ljry!

m 2021 SCMR 780. the Apex Court

has recorded a somewhat similar observations by holding that;

All the circumstances htghltghted above lead us to a definite conclusion that presence of eye-witnesses at the place of occurrence at thc relevant time is not free from doubts and the has failed to prove its case against the beyond reasonable doubt

14.Other than the above, the other eyewihess of the occurrence, NIst. Hussan Bibi, who is none else but the widow of the deceased was not produced by the prosecution in support of their case due to her illness. Junic. Mu&.ood Nr..r Arwrr Hoo'bb r!&. Junic. Shddd Kt !

V

Same was the case with the daughter of the deceased, Mst. Shazia, who was not produced in the Court by the prosecution for the simple reason that her name was not cited in the FIR, however, being important witresses of the prosecution, they would have been in a better position to clearly identiff with perfection the assailants, but they were abandoned and thus the prosecution in all eventualities has withheld the best available evidence, "f therefore, under Article 129 (g), the Qanun-e- Shahadat Order, 1984 an adverse inference has to be drawn that had the said PWs been produced they would have not supported the case of prosecution. The Apex Court in case titled "Lal Khan u/s State" reported as 2009.

SCMR 1846 has held that;-

A material witness of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid consequence.

Similarly, in case titled "Mandoos Khan u/s The State" reported as Nawab @.B) Honble Mr. Justicc Muhammad Naean Anwar Hon'blo Mr. Jugtico Shahid Khan

v 2003 SCMR 884 it was observed by the Apex Court that;-

Prosecution must produce best kind of evidence to establish accusation against accused facing triat but simultaneously it has no obligation to produce a good number of witnesses because it has an option to produce as many as witnesses which in its consideration are suflicient to bring home guilt against the accused, following the principle of law that to establish accusation, indeed it is not the quantity but quality of the evidence, which gets preference.

15.Other ttran it, it is an admitted fact floating on the face of the record that there is an ordinate delay of more than six hours in reporting the matter/event to the local police. As stated earlier, that the complainant- paffy were not even interested to inform the local police about the murder of the deceased rather the police themselves attracted to the venue of crime, in response to information about the unfortunate incident and the alleged explanation in respect of the delayed report offered by the complainant i.e. fear of the Taliban appears to be a lame execute just to cover-up the subject delay in registration of the report. It is pertinent to clariff here at the cost of repetition that the menace of Newab (D.B) Hooblc Mr. Justic€ Muh.nmad Nrcm Anrvar Ilon'ble Mr. Justice Shahid Khsn

militancy lTalibanization tn District Mdakand & Shangla was done & dusted by the security personnel in the year 20ll-2012, whereas, the subject occurrence has taken place on 20.07.2014, therefore, it seems that it is unseen & un-witnessed event in its nature and even the complainant-paxty was not sure about the real cu$rits or for that matter implication of the accused/ respondents, in the subject event.

16.No doubt, there is certain recoveries in the form of blood stained earth, blood stained broken stich blood stained stone, blood stained shirt ofthe deceased and blood stained five chits recovered from the spot, however, evidentiary value of the same qua the guilt of the accused/respondents has rightly been discarded by the leamed trial Court, especially in absence ofdirect evidence being a corroborative piece ofevidence. Even otherwise, when the prosecution has failed to prove the case against the accused/ respondents beyond reasonable doubt then the N!''mb (D.B) Hootb r,ft. Jutic. Muh.mmld l.L.atr A$xa Ilor'blc Mr. Jultic. Shfild K}.r

corroboratory evidence produced in the case in hand could be ofno help to the prosecution.

In this respect, reliance is placed on the judgment of Apex Court rendered in case tifled (fmtan &7 u/s The tt) aFl 2001 SCMR 421, wherein

it has been held;

"Recovery of lncriminating articles is used for the purpoie of providlng coroboratlon to the ocular testimony. Ocular evidence and recoyeries, therefore, are to be consldered simultaneously in order to reach for a just conclusion.rr In support of same ratio, further reliance may also be placed on

reported as

17.In the subject event, the medical evidence has been fumished by PW-7, Dr.

Ghafoor Ahmad, the medical Officer, who conducted the examination of the dead body of the deceased in the shape of his report, Ex. PW- 7ll. As per prosecution's story, the occurence has taken place on 20.07.2014 at 17:00 hours, whereas, the report was lodged to the local police at 23:30 hours and the postnortem examination of the dead body of the deceased was conducted by the doctor on the next date N.w.b (D.B) lloobh Mr. Ilnio. Mohlurd N...o A$vl. I{or'bL Mr. ftltic. Sl'€hid X[ft

i.e. on 21.07.2014 at 02:16 p.m, as such, the time between the death & postnortem of the deceased has been shown as 14 to 16 hours.

Such an opinion of the doctor is not in consonance with the story of the prosecution, therefore, the sole testimony/ocular-account of the complainant is not in consonance with the medical evidence as well. In identical situation, akin to the present one, in case titled uNadeem alios Kala u/s The State & otherco reported as 2018 SCMR 153. the Apex Court has held that;- j" "The medical evidence ls merely a supportive./ corroborative piece of evidence but in this case the same is not in line wlth the ocular account because Dr. Monum Javed (PW.2) noted a firearm entry wound on the front of right thtgh whereas it is case of the complainant in the FIR and both the witnessca of ocular rccount stated before the learned trial court that the other accused had caught hold of Maqcood Ahmad (deceased) from the front side, therefore, the ocular account ls not ln consonance with the medical evidence. Similarly, in case titled'Haroon

Bin Tafin & others The State & othercD reported 6 2O!|&MruU it was observed by the Apex Court as follows;

"That no independent verification was availrble on record to establlsh that the deceased directed himself to thc assaihnts in order to disengage or overtr ower them rnd in the process received llre shot dudng grappling them from a close bhnk On the contrary, medical evidence contradicted the prosecution case, rlr there was no blackenlng on the margins of solitary entry wound, therefore, N.w.b @,B) Hortlc I'lr. Ju.tbc MutEnd N.!.o Allxar Hor'tlo M.. Jrdicc Shhid Xtrm

possibility of r stray bullet could not be vlewed as entirely unnealistic, partlcularly in the presence of ar many as sfuteen (16) casings, secured from the spot, unambiguously suggesting volley of frres.

18.So far as the abscondence ofthe respondents/accused .fl is concemed, in this part of the country people do abscond not because they are guilty, but because of fear & torture of the police. Even

absconsion is not a substantive piece of evidence, it is a corroborative piece of evidence and in cases where direct evidence fails, corroborative piece ofevidence is ofno avail & utility, as in the subject event, where the evidence of a sole eyewitress has been disbelieved. Needless to say that abscondence can neither cure the inherent defect of the ocular account nor by itself is sufficient to sustain conviction. In this nespect, reference can be made to case titled "Islam Badshah 'l EE

19.The peculiar facts & circumstances of the event coupled with the assistance at the bar and scanning of the evidence so fumished N.w.b (D3) Ilooth ffi. Jultic. Muht ad NEm Amvr Il@'blc Mr, Judi.. Slthid l(ir[

has driven the Court to the conclusion that the leamed tial Court while placing reliance on the facts & coupled with the

evidence so recoded has arrived at the correct conclusion by acquitting the accused/ respondents through the impugrred order/ judgment, which is neither perverce nor arbitary nor whimsical.

20.It is well settled, it is not essential at all to place reliance on multiple doubts coupled with multiple grounds to extend the benefit ofdoubt to an accused, even a single worth reliable doubt is sufficient enough to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of

ID

sl

1995 SCMR 1315, the Apex Court has held as under;-

That the concept of benefit of doubt to an accused person is deeprooted in our counfi. For giving him benefit of doubt, it ir not necmsary thrt therc should be many circumstancer creeting doubts. If Nrwlb (Dl) H@Uc lir. Jreic. MuheDd N.!cm Arrvlr II@'bb Mr. Jodh. SlEhid Xie

there is a circumstance which creates reasonable doubt in a pmdent mind about the guitt of the accused, then the accused will be entitled to the benefit not as a matter of grrce and concession but as a matter of right

Further reliance is placed on the

case law cited as "Dsniel bovd (Maslim name Saifullah) vs the StateD reported as 1992 SCMR 198', where the following observations were recorded by the Apex Court;

Nobody is to be punished unless proved guilty on the basis of rellable or true evidence. Benefit of everT reasonable doubt ls to go to the accused.

This view also reflects in the

judgment of the apex Court titled as Arfj 2008 SCMR 1221, wherein it

was observed that:-

'rBenefit of doubt Princlple of applicability. For the puraose of benelit of doubt to an accused, more than one infimity is not requlred. Single infimity creates reasonable doubt in the mlnd of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful. rr In support of the same rational,

further reliance is placed on the judgment of N.wib (D.B) HoDt b frr. Judic. MulEDr!.d N.!6tr Arw.. Il@'bL Mr. Judic. Sh.hid (||e

*-r the august Supreme Court of Pakistan cited as

0014 SCMR 749t, wherein it was held that;-

Even a single doubt if found reasonable, was enough to warrant acquittal of the accused.

21.For the afore-stated reasons, the subject criminal appeal being bereft of any merits is hereby dismissed.

Date of announcement Dt.26.09.2023

Date of writing j udgment Dt. 27.09.202i ffrrrrd-{

-H\$ Nawab @.B) Hon'ble Mr. Justic€ Muhammad Nmcm Anwar Hon'blc Mr. Justico Sh.hidKhan