Saeed Khan Vs Suhail Khan and another

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JUDGMENT SHEET

PE G o

JUDICIAL DEPARTMENT

Criminal ApPeal No.909-P/202 I

Saeed Khan Vs Suhait Khan and another

Date of hearing: 29.11 .2023

Appellant by: Mr. Shabbir Ilussain GigYani, advocate.

Stateby: SYed Qaiser Ali Shah, AAG Complainant by: Mr. Faheem Khan, advocate {€***rl.{.**

JUDGEMENT

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IJAZ ANWAR.J: The instant Criminal Appeal has been filed under section 410 Cr.P.C by the appellant Saeed Khan son of Umar Khan against the judgement dated 13.10.2021, passed by the learned Additional t Sessions Judge/ Model Criminal Trial Court, Peshawar,

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in case FIR No. 1061 dated 12.09.2017 under sections ) lO2l324PPC of Police Station Chamkani, whereby he was convicted under section 302 (b) PPC and sentenced to life imprisonment with payment of compensation of Rs. 5,00,000/-(Rupees Five lacs) to the legal heirs of the deceased under section 544-A

Cr.P.C or in default to undergo simple imprisonment for three years with benefit of section 382'8 Cr.P.C.

He was, however, acquitted of the charge under section

324 PPC.

The connected Criminal Appeal No.l'037- P/2021. "sohail Khan Vs Saeed Khan ?nd another" has been filed by the complainant seeking setting aside of the impugned judgement dated 13.10.2021 to the extent of acquittal of accused under section 324 PPC and convicting him in accordance with law whereas the connected Criminal Revision No. L90-P/202L "Sohail Khan vs Saged Khan and another" has been filed by complainant for modification of the impugned judgement clated 13.10.2021 and awarding enhanced punishment to the accused-appellant in accordance

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d with law. The appeals as well as revision petition are,

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therefore, decided by this single judgement'

2.In the instant case, accused-appellant is charged for committing the murder of Riwayat Ullah son of Hakeem Khan as well as attempting ineffectively at the life of complainant Sohail Khan by

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firing at them. Accused-appellant faced trial on the above charges before the trial court and was, ultimately convicted and sentenced in the manner as referred to para-l of this judgement. Feeling aggrieved, appellant has filed the instant apPeal.

3.We have carefullY considered the submissions of learned counsels for the parties and have gone through the record.

4.Perusal of record would reveal that

complainant Sohail Khan while making a prompt report, in casualty of Lady Reading Hospital (LRH), , solely and singularly charged the above named /u""rr.d-appellant for committing the murder of his (l uncle namely Riwayat ullah as well as ineffective f

firing upon him rvith firearm. Such report was inked in shape of Murasila duly signed by him. The occurence has taken place in the second week of September 2017 at 19:05 hours at which point of time, sufficient light prevails and since the parties are co-villagers therefore, the question of misidentification does not arise. The

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ocular account has been furnished by complainant Sohail Khan who is the nephew of the deceased' During trial, he has been examined as PW-6. In his cross-examination, he stated that he, his uncles and other relatives are residing in the same vicinity. He also stated that the house of the accused is situated near to the house of the deceased. According to him, he alongwith his uncle was going home from Chamkani Bazar, Machine Chowk. Though the distance between the spot and his house, according to him could be covered within 2-3 minutes on foot, however, it is a normal human instinct that a person having a vehicle tries to board someone known to him or related to him irrespective of the fact that the distance could be covered on foot. Complainant stated that he with the help of co-villagers shifted his uncle to the hospital for treatment in a Suzuki pick up. This conduct is natural because Rewayat Ullah at the time of occurrence was on the driving seat and obviously after beilg hit he would have been lying in a pool of blood blocking the

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driving seat and the normal human conduct would be to shift him to another vehicle. Though the complainant has not given the details of the vehicle wherein he shifted the injured-deceased, however, there is a reason for that because in such a situation when a person is in deep mental shock and also fear of enemy, he is unable to observe each and every event.

5 The occurence has taken place at 07:05 hours. The complainant in his court statement stated that the distance between the spot and the LRH is about 5-7 Kilometers and at 07:45 P.M he reached the LRH meaning thereby that he reached the hospital within 40 minutes of the occulrence. The complainant further stated that he was taking the injured to the hospital for treatment. There is an invoice/medical chit of the l.

Accident & Emergency Department LRH, Peshawar available on record which shows the computerized time as 19:53:51 hours confirming the fact that the deceased was first taken to the emergency for treatment suspecting him to be alive and the doctor examined

him and found him dead. Beneath the signature of the doctor on this chit, the time has been mentioned as 19:45 hours which confirms the time of reaching of the complainant with the injured-deceased to the hospital at 07:45 hours. This time was objected by counsel for appellant that when the computerized time is mentioned at 19:53 hours, how the doctor examined the injured-deceased at 07:45 (19:a5) hours. From this variation of time, an inference can be drawn that the complainant alongwith injured-deceased reached to the hospital at 07:45 hours and while being examined the chit was printed and as such the doctor mentioned the time of arrival of the injured as 07:45 hours. The report was made at 08:00 hours wherein the scribe of the 0l report Ghulam Haider S.I (PW-13) clearly mentioned in the end lines that injury sheet and inquest report was prepared. The inquest report of the deceased shows the identifiers of the dead body as Sohail Khan and his brother Farhat Ullah. Thus presence of complainant on the spot, accompanying the injured-deceased to the

hospital and making report with promptitude is proved on record. In such short span of time, deliberation, consultation and false implication is out of question particularly when a single person has been charged for commission of the offence. In a recent judgement reported as 2023 SCMR 1278 "Abdul Wahid vs the fu1[9" the august Supreme Court held as under:

'6Keeping in view the fact that the deceased was firstlY taken to hospital, which was situated at a distance of more than five kilometers from the place of occurrence where he succumbed to the injuries and the matter was reported from the hospital, it would be considered a promptly lodged FlR-Promptness of FIR Prima facie showed truthfulness of the prosecution case and it excluded possibilitY of deliberation and consultation-- Accused was known to the deceased and another witness, as such, there was no chance of misidentification."

6 The complainant has been cross-examined at length on material aspects of the case but his consistent testimony could not be shattered and the defense failed to bring anything significant out of his mouth favourable to the appellant. It is an admitted fact

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that there is always a chance of slight variation in the statement of a witness but, obviously for the reason that with the passage of time certain things wash out of the memory and cannot be recalled afterwards and most particularly in this case when the complainant has been examined after 04 years of the occuffence, therefore, such minor variations are not fatal to the prosecution case. In a case titled $Z ulfioar Ahmad and others Vs the State" reported as (2011 SCMR-492).. the august Supreme Court of Pakistan held as under:

"\ile have observed a few contradictions in her statement which can be ignored safelY being minor in nature having no substantial bearing on merits of the case. It is worth mentioning that minor contradictions do creeP in with the passage of time and can be ignored."

7 Next comes the medical evidence. The P.M examination on the dead body was conducted at 09:15 hours and the P.M report shows three entry wounds with corresponding exit wounds. The locale of firearm entry wound No.l has been shown on back of

v chest right, with its exit on front of chest left side, entry No.2 has been shown on front of abdomen right side with its exit on left front of abdomen whereas the third entry wound is shown on back of left hand with its exit on front of left hand. According to narration of the complainant, when they reached the spot, the accused present there started firing at them meaning thereby the car was in movement and when the firing was made by accused, the deceased received entry wounds on different sides. The weapon used is shown fire arm.

Time between inj.rty and death is mentioned as immediate whereas time between death and P.M within 4 hours. Dr. Mian Saad Ahmad who conducted autopsy on the dead body has been examined as PW-4. In his cross examination, he explained the word "immediate" as within 30 minutes which supports the stance of the

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complainant that the deceased being suspected to be alive was shifted to the hospital. Thus the medical evidence fully supports the prosecution version'

8 There ate also certain events and

recoveries which render as strong circumstantial evidence. Murad Ali Inspector investigated the case who has been examined as PW-08. He, during spot inspection, prepared site plan at the instance of complainant. According to the site plan, accused has been shown at point 3, the car No. LWR 3082 at point- A, the deceased at point-l whereas the complainant at point-2. From point-B which is on right back side of the accused, the I.O has recovered and taken into possession 03 empties of 30 bore. The FSL vide its report Ex.PZll has reported the empties to be of 30 bore and fired from one and the same 30 bore weapon.

The number of empties corresponds with number of (l entry wounds on the person of deceased. At the time of arrest, an unnumbered 30 bore pistol has been recovered from the accused appellant which was sent to FSL for matching with the recovered empties, however, the FSL report in that respect is in negative The I.O further recovered blood through cotton from

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the driving seat of the motorcar/place of deceased. The FSL report is available on record as Ex.PW 15/l which confirmed the sample of blood to be human blood.

Similarly, the motorcar has been taken into possession.

The FSL report Ex.PW l5l3 is there which has confirmed the presence of a bullet mark on the inner side of the left front door which indicates that since it was a taxi car, and also it was summer season when the window screen are often kept down for the purpose of air and when the deceased was fired at from the right side the bullet hit the inner side of the front left door.

Thus the circumstantial evidence fully supports the prosecution version.

Though the complainant has advanced the

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l. motive for commission of the offence to be altercation between the accused and the deceased that took place a few days prior to the occurence, however, he could not give the specific date, time and place of such altercation nor produced any evidence in that respect.

Thus, the motive though advanced but not proved

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satisfactority. However, it is also well settled that lack of motive or its weakness is not fatal to the prosecution case if there is otherwise strong and reliable evidence available on record. In this regard, reference may be made to the case titled 'oSved Mushta Ahmad Vs Sid dioullah & others" reported as (P L D 1975 Supreme Court 160) wherein the august Supreme Court of Pakistan held as under

*lt is well settled that the weakness of motive or even its complete absence would be wholly immaterial in a case where ocular testimonY of an unimpeachable character is available in supPort of the prosecution case."

In case titled ooSta Vs Sob

( reported as (1993 SCMR-585)' the august Supreme Court of Pakistan further held that:

ttAbsence or weakness of motive does not come in the way of the case of Prosecution and can be condoned if there is otherwise strong and reliable evidence in suPPort of the case".

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10.The accused-appellant after the commission of offence went into hiding for sufficient long time whereafter he was anested on 2l .10.2018.

The appellant did not join investigation and his abscondance for such long time has remained unexplained. The I.O during investigation had applied for warrants under section 204 Cr.P.C and proclamations under section 87 Cr.P.C but the appellant remained fugitive from law. In his statement, recorded under section 342 Cr.P.C. he has simply replied that he never absconded and when learnt about the charge against him, he surrendered.

However, record speaks otherwise as he did not surrender rather was arrested by the police in a raid.

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The abscondance is always treated as an additional d

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( piece of evidence against the accused, who deliberately and intentionally avoided his arrest and failed to surrender.

ll. The appellant in his statement recorded under section 342 Cr.P.C has taken the stance that

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deceased was forcing him to sell his house to him and on his refusal, he was involved in the present case.

Suffrce it to say that the offence of murder is far more serious than mere refusal of appellant to sell his house to the deceased. Here a question arises whether the complainant would spare the real murderer (s) and falsely involve the accused in the instant case just for his mere refusal to sell his house to them. For that matter, the appellant was required to bring on record something to prove that such was the reason for false involvement of the appellant in this case but he failed to bring anything on record to prove that due to the said reason, he was substituted for real murderer (s).

Admittedly, substitution of real culprit (s) is a tate -. phenomenon in the system of criminal justice.

Reference in this regard can be made to case titled, aa Allah Ditta Vs the State" (PLD 2002 Supreme Court 52) wherein it was held as under:

$lt is also to be noted that admittedty Prosecution witnesses Muhammad Sadie and two others have no enmitY of whatsoever nature against

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Allah Ditta and they have also no reason to falsely involve him in the commission of murder of their brother Muhammad Sabir. In addition to it, it is also not possible for them that they would allow real culprit to go scot-free and falsely involve another person for the commission of the offence.

Even otherwise it is well settled by now that substitution of real culprit is a rare phenomena in our system of criminal justice."

12.It was the contention of the leamed counsel for the appellant that the there is no independent eye witress of the occurrence and since the complainant is related to the deceased as such being an interested witness, his testimony could not be taken into consideration for the purpose of conviction. The non-production of any wifiress from the locality/site of occurence has been duly explained by the complainant L as well as the I.O of the case that due to fear no one ctrme forward to become a witness. Such explanation is somehow true as in our society, people desist to poke their nose in the matters of others due to fear of enmity.

No doubt, the complainant is related to deceased, however, mere relationship with the deceased would

not render him as interested witnesses. In case titled 'o (20ll scMR

492), the august Supreme Court of Pakistan held that:- o'It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of 6interested witness' was discussed elaborately in case titled Iqbal alias Bala v. The State (I994SCMR{1) and it was held that 'friendship or relationship with the deceased will not be sufficient to discredit a witness particularlY when there is no motive to falsely involve the accused."

13.Admittedly, complainant is the sole eye witness of the occulrence, however, even the testimony of a single eye witress would be sufficient to sustain conviction provided his testimony is trustworthy,

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(ll straightforward and confidence inspiring supported by medical and circumstantial evidence. Article 17 (2) (b) of the Qanun-e-Shahadat Order, 1984 says that "in all other matters, the Court may accept, or act on, the testimony of one man or one womon, or such other

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v evidence as the circumstances of the case may warrant.". In the instant case, a single accused has been charged for the commission of the offence and the complainant during trial has furnished a trust worthy, straightforward and confldence inspiring testimony. It is an established principle of law that it is the quality of testimony of a witness that is to be weighed and not the quantrty of witnesses. There are numerous judgements of the superior Court on this point. In the case titled Asfandivar vs the State "2021 SCMR 2009). the august Supreme Court of Pakistan held as under:

'6Ahmad AIi Shah (PW-4) furnished ocular account about the incident, a daylight affair within thick of the locality, reported promptly to the police within one hour;

formal FIR was recorded at 1:45 p.m. whereas autoPsY followed at 2:30 p.m. The brief & interresnum does not admit nossibilitv of deliberations or consultations. narticularlv in the fa of nomina tion of single accused.

;;;"';;;;"'not require a particular number of witnesses to prove a criminal charge and statement of a solitary witness with a ring of

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truth is more than sufficient to drive home the charge;

corroboration is a rule of prudence and not law and cannot be invariably insisted in every case.

In a recent judgement rendered in the case titled "Muhammad Vs the State".

renorted as 20 SCMR 690). the august Supreme Court held as under"

"Even otherwise, if we keep aside the testimony of Mst.

Zubaida Bibi (PW-6) even then the petitioner can be convicted on the solitary statement of Ahmed Nawaz (PW-7) as it is an established principle of law that testimonY of a solitary eye-witness is sufficient to sustain conviction of an accused if the same rings true and inspires confidence and it is the quality of the testimony of a witness that has to be weighed and not the quantity of witnesses."

l 14. Though minor discrepancies in the

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prosecution case could be noted, however, these are ignorable in the facts and circumstances of the case. In o'Imran a recent judgement rendered in the case titled Mehmood Vs the State and another" O023 SCMR 79il. the august Supreme Court while commenting on

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minor discrepancies in the prosecution case observed as under:

"Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored."

15.In view of the foregoing discussion, we are firm in our view that the prosecution has successfully proved its case against the appellant. The judgement of the learned trial Court dated 13.10.2021 is based on proper appreciation of evidence and material available on record. The learned counsel appearing on behalf of the appellant could not point out any illegality or I material irregularity committed by the trial Court which could warant interference by this Court. The impugned conviction and sentence awarded to the appellant is thus upheld. Resultantly, the appeal in hand stands dismissed.

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16.Now the Criminal No. 190-

Pl202l '6Sohail Khan vs Saeed Khan and another filed by the complainant Sohail Khan for enhancement of the sentence awarded by the trial court to the appellant is taken up for discussion. This Court has to see whether the trial court, in facts and circumstances of the case was justified to award life imprisonment to the accused-appellant. As mentioned in the foregoing paras, the complainant though advanced motive, however, he neither gave the specific date, time and place of such altercation nor produced any evidence in that respect. In case titled ooHasil Khan Vs the State and others" (2012 SCMR L930, the august Supreme Court of Pakistan observed as under:

o'Moreover, as rightly observed by the learned Trial Court the immediate motive remained / shrouded in mystery and the Trial Court rightly did not award the maximum sentence of death provided under section 302(b), P.P.C. to the appellant."

17.As observed above, since the prosecution could not satisfactorily prove the motive, as such the

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learned trial court considering it as mitigating circumstance was justified and has rightly awarded the sentence of life imprisonment to the accused- respondent. No case for enhancement of sentence awarded to the accused-respondent is made out. Hence the Criminal Revision No. 190-Pl202l is dismissed.

18.Coming to the connected Criminal

Anneal No. 5381-P 12021 wherein the complainant has challenged the impugned judgement dated 13.10.2021 to the extent of acquittal of the accused-respondent under section 324 PPC. Perusal of contents of FIR would reveal that the complainant though charged the accused-responderil for firing at the deceased as well as attempting at his life, however, since he was seated in the rear seat, as such he escaped unhurt. Similarly, the motive which though has not been proved was stated to be between the accused and the deceased which can give an inference that the accused attacked the

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deceased and he had no intention to make attempt at the life of complainant. Thus, the prosecution failed to

v establish the guilt of the accused under section 324 ppc. As such, he has rightly been acquitted of the above charge and the impugned judgement qua his acquittal under section 324 PPC in our view does not need arry interference by this court. The criminal A No. 1037-P 1 stands

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dismissed I

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Ju dge

Ann ounced u ge Dated. 29.L1.2023

DBHon,bleMr.JusticeljazAnwararrdHon,bleMr.JusticesyedMuhammadAttiqueShah.

'.Amir"