Shamim Khan Vs State

JUDGME1\JT SHEET

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BA TU BENCH "

(Juclicicil J)epwiincni)

Cr.J.A No.6243 of 2-01 3.

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l)aie ui hciring 06.10.21.) 15

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I(ILIL'.T J.j

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lhlot.h this single jLldgmcnl WC Intend to Lispose oF i1.L1;11 C'i.J A. "lu.62-13/20 13 and Criminal Revision

3.as 1)0t1 ai•c oulcome the same impugned udement dated 2G,2.201 3 of learned Additional Sessions Bannu in case FIR No. 101 datcd 12.9.201 I under :i) tinder section 302 (b) PPC and sentenced to ri..otot.Is hle iI1iJ)flS0t1I1Ic.'iJt as Ia'iir . .ial'lebito Py Ks. 1 ,00,000/- (one licj as cotpc1saion under SuctiOn 514-,\ (I.JC tc h dw legal heir ul dec:icd 01, 111

thereof th- accused has to tii'thcr undergo for a (J1, 00 1U( ))ItIr. JlllplcuIjsisiii 11:1 It.

leiu:c beiatit 411 •(CR)I1 t8?.-.l ('r.l'.

t':.teI)l((I 1i aeclIs((l.

2.l3rief 1cts of the cise as per PIR are that on coniplajuant, Sairullab K han lodged a report in the emecc.cncy ward oI' Civil 1[3spit1jl, l3anmt to the cf1cE on the da" ol uceurren:e he alongwith his wi l .lL.AI..l)IIr 13:111o, his brother Sliamini arid WaiduLlab - :re CtILt III tilelE house, SitlUttC(t in Land Khuari, 'ehen in the meanwhile hard words were cxchari,ed hwcen hi vv i fle and his l)rothcrs S haniim and \Vthiclulhli on this Wahiclullab commanded to his Niotlier Shamiin for Living at Ilk wi li., who in conipt lance tired at his, Nvile with 30 huic pistoI as a result of vl.icli 11i-: WI :ii:tained irijurirs and 1Il clown on the u.rnuiid.

itIt the accused lied away orn the spot and when he lii \Vie, .h: Was 1)11.51 by Ihvn. Motive l':liiil he occiti i-ice was stated to be exeliangeil of hai-d words ai al im the report of the complainani case under section .02 PJC vjd, 1-jR No.101 dated 12.9.201 I was yejstej'cd

21inst the accused/appellant and other co-accused for the commission of the alleged offence.

:3. Pi>seciiion to J)rO\'c Us case produced 09 \vitiicsscs anlolig tlieiii PVv'-3 is Lady Dr. Shiiiqa Khial.

vlio COfl(lIIc(((l irieclical litupsy on deial body and hc Lildursed Lhe l'Evl report as I x :P'A/J/ I and Il Ivin1' \VO1ii1(j5 \VLte !iiiind

i)c)nufi,e ent,i i'ow141 size 1/4" x 1/4" iwar lefi ear.

One fire exil wound size 1/4" x 1/4" on posterior (.IXJ)ecI o/ iiecic.

(:'iIt'/iI•e cnlrv ii'ozi,,cl oll leJi si/a ,,pp lip.

ii',i ()i,c' lire exit wound on ri'hi .vicle upper lip si:e

In hCI Opinion, (.IecCaSc(l (lied due to litcarni lnjLiLics.

Noze and iicck l)Ofle fractured. She also endorsed the ii iur\ :heei and inquest report being signed by her in:iiLed as I2x:PW3/2 and lx:P\V3/3.

l. I ttVCStigation comrnenccd a fler registration ot case upon 'Murasila' x:PW4/ I and FIR lx:PW I / I, f.() JicJ)irC(I Site plan on the poinuitioti of complainant as fts:PW7/l. collected blood stained earth horn the place of i

\J. deceased, and one empty of 30 bore pistol was tnkci - into }1()SSCSSIOO marked as P-I vde rcuvery memo ie':ult of FSL ahoiii blood stained earth was ioi.ind human

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blood ;aine FSL report was endorsed by, him as i x :I' \V7/4, exami nation of crime empty was scot to PSI, and report is l)i:lCe&i as ix:P'V7/6.

While 13 W-1 is Gui Janan AS!, who on

receipt of Miirasila' registered the case vidc FIR No.101 I/I . Siatenient ol compkiiiiant rCcOrded as PW-5, while the statement of real brother of deceased namely .JCltiLI37e() I'.. haii lCCOLded as 1' WO.

I .IZtFI)C(I counsel br the appellant vehemently argued that the impugned judgment of the Will Court is ii tesult al I sicac.liii iiid iit,iu., eidiin• u ;videiit;e [liii the testimony or PW-5 is lull of contradictions and discrLpaneies while ocular account is belied by medical us wcll as cLrcumstantial evidence and the site plan; that the learned trial Court has not taken the legal as)ecI (J thC C1SC that PW-5 is the husband of dcceascd and interested witness and accused cannot be convicted I I, olu' cvjdcnci of this sijiele witness. Morcover, not i ye and pJCVI0LIS enmity not proved so the learned trial ('aunt bus ci- red in law while convicting the appellant by auuardinu ii le Imprisonment, hence, the impugned iidgnieit is liable to reversal and accused be acquitted.

h: )r •'•

- J.

7.On the other hand, learned A,A.G assisted by learned counsel for complainani have strongly opposed thearguments, advanced by the learned counsel !hr the uppel hint by stibiiiittini that the appellant fled away From the spot alongwith absconding co-accused who are directi charged in promptly lodged FIR Iir murder oF (ICLeasc(l lady. 'l'he Occwrcticcis a Of &hty I ivjil atid lLle.ti(iII il ni.idejitiIic:itiuii did iiot arise :icctis&.iJ livin, coin ni on ii lent ion wh icli has been proved through CO,Cfl t, coherent and con lidencc inspiring ocular evidence upportecI by circujns1anljiI evidence in the hpe of virious iccoveries from the ciinic venue as well as through med cal evidence, thus, he has rightly been cOnvjctC(h by the learned trial Court. They further argued that 1St. repOrt 0! 1)100(1 stained earth recovered empty P- Iroin the PlC of deceascd are in line wilt-i the prosecution case. Moreover, there is no legal impeehimeul thai conviction could not be judged upon the evidence of :fl ie.tc witness and same single witness is natural, triistvoitliv and al lull credence could be relied upon.

hit c:isc :iiainsl the :iiiscd/appehl:ini lilly hence, is

est:ll)hjstje(I. lii sulhil)Oi 1 01 criinjiiah Lcvisiuii, teaiiicil counsel contended that proseCution has proved the guilt of

the appcllaiu upo the hilt and in the circumstances, the punishment ol accused may be enhanced by awarding On death penally for such a brutal murder.

We have heard and consideted ilte

;ubmi:siopis Or lcisriied counsel lot the 1Xai1s atid [ftc letiicd A.A.G (or the Slate and gotic through the record.

From the perusal of record it reveals that Ilic crime reported was conimitted inside the residential house of private respondents. Appellant, co-accused and - complainant are real brother inter sc while deceased lady Mst. Akhtar Bano was the wife of complainant. Both the .icu;cil c.lecantped horn the spot but accused Shantini K hatt was arrested on I 5.9.2() II while accused \.Vihiclulltli alter occurrence absconded and was proceeded under section 512 Cr.P.0 on 29.11.2011. All the witnesses rclrr'cl above were subjected to a taxing cross-examination but delence lti1cd for bringing on ICc(wd sot ne inconsistency in the statement or prosectitioli messes about the main story. We have lound nothing in ii teir Lest i mony to create atty suspicion the benefit oC - which could be extended to appellant.

Etc High; 'Ii1 It i, nit Hi•t Ci'

IC). PW-5 is complainant in wloc presence

cidence occurred. I us credibil iCy could liot hrtishcd :c;i(lc uiily ott (he ruinid that deceased was his -vtI and had l'alsely implicated the two accused who arc his real brothers, hence was put to severc cross-examination at length but dc1i ice hiiled to shaiter his veracity. Moreover, L(()I1 the other eitctimstaiitjal anti euttobot:utin CVJ(lcfleC (ii record his pieseitec at Lhe place 01 occurrence but the incident as narrated in the FIR had been proved. 'l'hcrc is no need olso many witnesses but single witness is enough I upon deep examining his evidence is Ibund believable :10(1 coiihdericc inspiring that can he relied iipoii. So in

this reiard arriument s 0 learned counsel for appellant have IRI force that cuniphainant evidence is not believable.

I The leaiiied trial Jtidge, while givinp the jtidnncnt impiitned herein, has attended each and every piece o I cv iclerice with j udicia I care and caution at id a 11ev 'i )(I apI) Leci;ttjUil of ilie suiie evidence on record had rcacl)ed in ilie conclusion that PiosecLition has succeeded to I)rin i'.iiiit at hi.niie to (he accused/appellant beyond ieioi)ablc douh hut the only mitigating circumstance that \ OCCUITC11CC took place all of sudden within the house as co-accused \Vahidullah upon altercation with his deceased

'Iili;iIii :it llic :iiii id inuilielit :uiniii;iiikjd lii;

Shamim Khan to kill her who by acting UI)Ofl the said command hac.1 killed her, escaped the proper judicial in(IukCnCe by the lcai'ned trial Court.

2.li'oiii (lie perusal ot Ilk; statement ci Cyewitness and findings of learned trial Court below, it clearly showed that there was no background of ill-will or bitterness between the accused/appellant and deceased lady or her husband/complainant, the incident erupted all of sudden without, any premeditation as it was airight be ('ore ccc iurrcnce and compLainant while deposed he staicti liOtLii!iL iilX)Li1 previous ill-will ci' slightest natuic a inoili. ii is brotheis, ii is wi ii aid hi in, so the present ease W5 One 01 sudden provocation and miltereiii.icn which I I hi iiiiiujiiiu:itc ilicidCril.

I Icr the dispensation of criminal justice

slicejal Iv cases involving capital punishment high degree ul care and caution is required while analyzing and L'N. 111) i I I I ru,,the vidciiee olwitnesscs about oral account ci' i he inc I((eut as well as material ccl lectcd and brouc,ht on

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iecord as evidence.

.1. L is competence and quality of evidence li;ts to be taken into consideration and its reliability il' RuIehsU)nc of' principles enunciated by the I n )tlIahlc Supreme Court of Pakistan. The evidence of liubaod ol deceased lady atains1 his real L)rothers in a u inativ lodiecl FIR supported by other circumstantial e\ - Klonce like medical report, result of Forensic Science I .iboratory cannot be discarded only on the ground that comp lai narit was husband of deceased lady so to treat him interested witncs. in this en,itrd wisdom is derived hum the judgment ul' 1-1011ourable Supreme Court in case Iii lcd "1\huti;niijn:iti Ma,ish:i \/; 'fur (:tIe" cited 2111)1 -( MI W) tin' i'ltriui I)UlIj(lI (4! jt141i.IIit.'Iit a114IIi cult ipetence alld about single witness laid down isas undei:-

lmucre.';ie(f il'i!nC.S'S is one ii'ho has a niolive jo lu/se/i' iinj.'licae an ciccisseci or has .'coi,ie / >I'f1'(OU.v (fill/n/v to i,'ivolcc a Person I/U I/c i/i /4/i'. No lulL u/ 1(1 II' I/mi .viaii'n,e,,I o/ em, iiiici'exic'cl wimncss cont/of be taken into cun.yicicraljon t i'll/iou! corroboration and 1(IW)u/'flb()/ ut (-'ci Ve/w (00 cciii be relied in cur/levi ii:ifI, oilier circumslctnces o/ pci/iic'zt/ai- c'as."-

lii the sante jtidmcnt conviction can be awarded on the basis of' sole witness is also reproduced for guidance as belos.v:-

.-1 ban . / h ri/vt!! 11 ,11111d cc id ii (iii ii Ilie as eiiiployccf in the 'scud Article I 7( 1)(h) is lice frau, any atnbiguity and no sc/b/ar/v interpretation is req i tired. The /111'ruvu)l7.y (is ie/livdlllCcc/ /itaei,icibove v/the \t titi ii ilicic wolild Ii(Ctf(e if (tillinc (ant clear 1/1111 J 1t1;iiclI/ar /mn7ber o/wii'nesses s/ta/I not lie seqiifred /br the j;roo/ of any f.ict u;ucoiiiiig ihe,abv that a frict can be proved 1)17/I In' ci single i'ilr,ess "it is not seldom hid! a c-tune has been committed in the J)iL'Sd/lcC qfonly one wiaiess. leaving aside those cct.ves F V/I/Cl? are itot of niucomitnicin ('&cttui,7cc, li'/ieie d/C1CJ/,/j/kiIjOfl of ti,i/t t/l./)eul(is 'b1/1fiU/)/ ()fl C//(11171.yi(i/iu/(f/ i'iil,i:t'. II i/u !_ei:i.riali,re FVI'Id 10 ii,visf / '(in-a/i/i' 11' c/essex, cave it'/ieic the 1c'xIiino,, ''/ (I Stud/C iI'i/uiCSS ()17/)) dOlt/ti be (Ivii//tu/)l&' in /'l)H/ 0/ tile dli i/c, II'Oii/, / .(' F11//'i/ltix/ie(/ If i.' Ii, i I/all tI,• Ii iii c/I I/ic l'i'est, (iii Il(cfyd clil/ICS i/ill) p/ui. I/ic' nki/iei' I/lily 1111151 .'eiicl itf)oil the CiI'CuInsldunces 0/cad, cave aml the qua/i y of the evidence of tile sing/c witiless ti'/,Ose ICS(/1i7(flF)1 has 10 be eiI/7er aecc'pk-c/ or i'ejeclec/. I/such ci testiniony is /in,su( In' the Cot,,t to be entirely rclio/,7a, i/lei'' is ito legal iinpc.'c fimeni to the dc)ilttdliccii 0/ I/ic (icc/used /id'I'SOt7 art .viicii / I) n 1/Ii' 'n CLV i/iL' tinii 1/ (lii (Iccu.vi 'c/ /)ersnJl hUll' be jroved In' the testimony of a .vl,zd/ ti'/a,c.v,v, the innocejicu ol'un accused /Jc/0/1 nut be eslcib/ished on the testimony 0/ ci single witness, even though crni.vidc'itthle number o/ witnesses may be /(n'I'icoinuig to tes(i/i' to the truth of the ('(l.Vd. /0, the pro.Fecuu(iofl. The Court is eoiI('L'JuIvtI tilt/i the qncihiv and not with the N qiuniiriiv of the evic/ellec' lccesxarp fur /)ioF'iuu or c/is/Jioviii a Judy ". (Principles ünd l)ici'.i n! the Lan' at Evidence b M. ,iu,, k' ptute

I So zilLcr careful examination of the evidem ice On record and the solitary Statement of 1''N-5 and other c(,mrul)I)taLIIm' ev,tL:iice iii sliajc oF site pkiii. p;Iiitemu IIII 1114 \'i(I(II,, )I

sole \\itness UI the OCCtIITCOCC is worth credence, dependable and consistent and the learned trial Court has currecily appreciated the cvidcnce by convicting the aectised/appel Iai it.

No' the other queslion ibm determination

I)etOre this Court is as to whether the iinlhriunate murder ul deceased lady WaS P1'CPIaJliied and premeditated act oF (>CnCe or same thing happened 'which resulted into siiddeu quarrel ol and the said incident. So From the peiLisal uI FIR and entire record, we arc of the considered 'ic\' tli:u lie jccuticjce 1001< place it the spin ol miiuii,eiit (ILIO lo ainc sudden altercation and provocalion which could be ucated as a mitigating circumstance in the ease br 1-CdILIC1ion o the sentence, awarded to the appellant.

17.ihus, we hold that the case atainst

- appellant/accused fell within the purview of provisions of \_i•\ -_.

sccton 302 (c) PPC and not under section 302 (h) I'PC, hence, sciltence is converted irom section 302 (b) PPC to

sect ion .02 (c) PPC. ConscLuenLly, the Conviction 01 :ieeu-.ed/appel lant awarded by learned trial Court upheld, however, (lie sentence is reduced from rigorous life imprkonment to 1 5 years ri &o rot is mi pu soli in en L w h ii e the other part ui sentence as to compensation to be paid to iIi Lti.i1 liii. :iiiut (IIi1I( I ,0000/.(uii l.ic) ;tiitl iii It t CLII iller six niotit le; sii nple

tII)ii.:I)iItiieI;I :111(1 hciielit Of sccLioi, .2-U (.'r.ftY maintained. In this regard wisdom is derived from the LI(10 111e)I1 o I 1-lonourable Supreme Court of Pakistan in ease hued as "e\i.rnatullah Vs The State" reported in :o14 S(.'Mt Z (178.

I zi. (..,o in the light of above discussion, this criniin:tI jail appeal is parliafly allowed and the impugned is modi licd in the above terms while criminal rL'visioJ) petition No.2213/2013 is hereby dismissed.

JUDGE

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,, jUDGE

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4 U;itc, A!Ndo 87 .i :1.;' (.)11,)r t?-

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Pd.(1

IN ThE PESHe2XWM HIGH C0U, :

BANNUJ3ENCIL .•\ I ..

(R'i'twr,No 22-3 of2(fl3 Sa.ti.t j/h1: J(Iiij Sha:aii,z .Kiwn elc. --- ---- .11.IDGt4EIVT l)u1.e heirin 06.10.201 5

Appt-I Li iL-ItLiLj>ner :Y-- Respndi'n I.. _.(c.k&J4Q

LJAI7I.47AK' J.-- Vide

ow- detail judtt.ni

ZD

ol the even Lirite in the connected Cr. A No. 62-U/2013 tiLk'd Simmim Kh.ui Vs Statc, this criIni[Uuj rC\'isuIIiLidS1j5LttjsseL1.

Airouti cod

06. 0.20 IS. JUD1

J U.D G