JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, · committed the murder of his son at the abetment and...

*M.Siraj Afridi P.S. D

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr.A. No.647-P/2013

Date of hearing: 03.03.2015

Appellant (s) : Shah Zeb by Mr. Muhammad Saleem Khan, Advocate. Respondent (s) : Syed Inayat Ali Shah Bach, Advocate for complainant and the State by Mian Arshad Jan, AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- At a trial held

by learned Additional Sessions Judge-IV, Mardan, appellant

Shah Zeb son of Ayub aged about 35/36 years, was found

guilty for murder of Safdar deceased, thus, vide judgment

dated 06.12.2013, was handed down sentence of death with a

fine of Rs.1,00,000/- to be paid as compensation to LRs of the

deceased in terms of S.544-A Cr.P.C. He was further convicted

under section 13 of the Arms Ordinance, 1965 to undergo 03

years imprisonment and to pay a fine of Rs.20,000/- or in

default thereof to undergo 03 months S.I. further. Benefit of

section 382-B Cr.P.C. has been extended to him.


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2. The appellant has questioned his conviction and

sentences through the instant appeal as well as Cr.A. No.648-

P/2013, while learned Trial Court has sent Murder Reference

No.12-P/2013, under section 374 Cr.P.C., for confirmation of

death sentence awarded to the appellant-convict.

3. As all above, are the outcome of judgments of the

learned Trial Court dated 06.02.2013, in one and the same FIR

No.372 dated 02.05.2011, registered under sections

302/109/34 PPC read with S.13 Arms Ordinance, 1965, Police

Station Par Hoti, therefore, we propose to decide the same

through this common judgment.

4. The prosecution case as divulging from First

Information Report Exh.PA is that, on 02.05.2011, Muhammad

Iqbal Mashwani ASI (PW.7), during patrol duty, on receipt of

information about murder of a person, on Swabi road near

“Tursokon Hotel” and attempt of the culprit to flee away from

the spot, rushed there and after chase, nabbed him, who on

query disclosed his name as Shah Zeb (appellant-convict

herein). From his possession 30 bore pistol No.B9231 having

three live rounds in its magazine, giving fresh smell of


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discharge, was recovered. In the meantime, Sultan Wali

(PW.1), father of Safdar deceased reported him that he was

present with his deceased son on the crime spot, when in the

meantime, the arrested accused duly armed with pistol came

there and opened fire at his son, with which he was hit and

died on the spot; that after commission of the offence the

accused was trying to flee away, but was overpowered by you.

He alleged that he is fully satisfied that arrested accused

committed the murder of his son at the abetment and

instigation of Rizwan and Gul Zada (absconding co-accused),

with whom he has strained relations. In addition to

complainant, the incident is stated to have been witnessed by

PWs Maqsood and Saeed. Report of the complainant was

recorded in the shape of murasila Exh.PA on the basis of which

FIR No.373 dated 02.05.2011 under sections 302/34/109 PPC

read with S.13 of the Arms Ordinance, 1965, was registered at

Police Station Par Hoti, District Mardan.

5. Muhammad Iqbal Khan Mashwani ASI (PW.7)

prepared injury sheet and inquest report of the deceased

Exh.Pw.7/1 and Exh.PW.7/4, and shifted his dead body to the


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mortuary for autopsy under the escort of Manzar Ali FC

No.2642.

6. Dr. Nazir Ahmad SMO (PW.8), conducted autopsy

on the dead body of the deceased on 02.05.2011 at 05.30 p.m.

and found the following injuries on his person:-

1. Firearm entry wound size ½ cm x ½ cm at right

temporal region.

2. Firearm entry wound size ½ cm x ½ cm on occipital

region.

3. Firearm exit wound on left mandible region size 1

cm x 1 cm.

4. Firearm exit wound on right mandible region size 1

cm x 1 cm.

Opinion: According to opinion of the Medical Officer, cause of

death was firearm injury causing damage to vital organs

resulting severe haemorrhage shock and death. Probable time

between injury and death has been given as “15 minutes”

while between death and Post-mortem as “within 02 hours”.

7. Faiz Muhammad Khan SI (PW.10) conducted

investigation in the case. He proceeded to the spot, prepared

site plan Exh.PB, at the instance of eyewitnesses Maqsood and

Muhammad Iqbal Khan ASI. During spot inspection, he secured

blood stained earth from the place of the deceased Exh.P.1


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and 3 empties of 30 bore pistol, vide recovery memo

Exh.PW.10/1. Vide recovery memo Exh.PW.10/2, he took into

possession the last worn bloodstained garments of the

deceased, sent by doctor from the hospital. On the pointation

of the accused he prepared pointation memo Exh.PW.3/1, sent

the bloodstained articles and empties along with pistol to the

FSL, initiated proceedings under sections 204 and 87 Cr.P.C.

against the absconding co-accused, recorded statements of the

PWs and that of the accused under section 161 Cr.P.C. and

after completion of investigation, handed over the case file to

SHO, who submitted challan against the accused.

8. On receipt of challan by the learned Trial Court,

appellant was summoned and formally charge sheeted, to

which he pleaded not guilty and claimed Trial. To bring home

the guilt of appellant, prosecution examined as many as ten

witnesses. After closure of the prosecution evidence, statement

of the appellant was recorded under section 342 Cr.P.C.,

wherein he denied the prosecution allegations and professed

his innocence. He, however, declined to be examined on oath

under section 340 (2) Cr.P.C. or to produce evidence in


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defence. On conclusion of trial, learned Trial Court, after

hearing both the sides, convicted and sentence the appellant

as mentioned above.

9. Learned counsel for the appellant argued that

appellant is innocent and has been falsely implicated in the

case on mere suspicions; that it is an unseen occurrence and

Sultan Wali (complainant) and Maqsood, the alleged

eyewitnesses had been procured, later on, who have badly

failed to establish their association with each other and

presence with the deceased at the time of incident through

some strong physical circumstances; that both these PWs

blowing hot and cold in the same breath about their

association and presence with the deceased, have totally

shattered the prosecution case, hence, their testimony

suffering from material contradictions and discrepancies cannot

be believed; that had they been present on the spot, they

would have been cited as identifiers of the dead body; that

testimony of PW Muhammad Iqbal Khan ASI, who allegedly

arrested the appellant and PW Manzar FC No.2642, who stood

marginal witness to the recovery memo, are contradictory with


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each other as well as with the testimony of alleged

eyewitnesses; that it seems very strange that PW Muhammad

Iqbal Khan ASI, who belongs to Preventive Police, was also in

possession of injury sheet and inquest report, on prescribed

proformas, which he allegedly prepared on the spot; that

inquest report also does not bear necessary detail of the case;

that the alleged recovery pistol is planted one just to

strengthen the prosecution case; that the peculiar facts and

circumstances of the case, strongly prove that the occurrence

has not taken place in the mode and manner as alleged by the

prosecution; that the alleged crime empties have been sent to

the FSL with a delay of nine day, for which no plausible

explanation has been furnished by the prosecution, therefore,

the positive FSL report would not advance the prosecution

case. He contended that as there is no direct evidence,

therefore, mere recovery of blood from the spot, crime empties

and autopsy report as well as positive FSL reports, being

confirmatory and corroborative pieces of evidence, will not be

sufficient in isolation to prove the guilt of the appellant. He

contended that prosecution has miserably failed to bring home


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the guilt of the appellant through cogent and confidence

inspiring evidence, therefore, the impugned judgment being

based on surmises and conjectures, is liable to be set at

naught and murder reference to be answered in negative.

10. Conversely, learned AAG assisted by learned

counsel for the complainant contended that appellant has been

arrested red handed on the spot by the local police along with

crime pistol, after committing the murder of the deceased; that

eyewitnesses have successfully established their presence on

the spot and their association at the time of incident with each

other, being close relative inter-se, does appeal to a prudent

mind; that defence has failed to shatter their testimony during

cross-examination; that ocular account of the incident is further

corroborated by positive report of the FSL about recovered

crime empties from the spot and pistol recovered from the

appellant at the time of his arrest and similarly, positive report

of the Serologist qua the bloodstained articles and autopsy

report of the deceased according to which he met unnatural

death due to firearm injuries are the strong pieces of evidence,

corroborating the ocular account. They while supporting the


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impugned judgment, sought dismissal of the appeal and

requested for confirmation of sentence of the appellant.

11. We have considered the exhaustive arguments of

learned counsel for the parties, learned AAG for the State and

perused the record with their valuable assistance.

12. Record depicts that this untoward incident took

place on Mardan Swabi road near “Tursakon Hotel”, lying at a

distance of 1/2 Kilometers from Police Station Par Hoti Mardan.

According to version of the complainant on the fateful day at

relevant time, he was present with his son Safdar deceased,

when in the meantime, appellant came there and shot dead his

son, who while decamping from the spot was arrested by

Muhammad Iqbal Khan Mashwani ASI (PW.7) along with crime

weapon; that PW Muhammad Iqbal also recorded his report on

the spot Exh.PA/1. The incident is stated to have been

witnessed by PWs Maqsood and Saeed, out of whom PW

Maqsood also endorsed the report of the complainant.

13. Muhammad Iqbal Khan Mashwani ASI appeared as

PW.7. In his examination-in-chief he deposed that on the

fateful day during patrol duty he saw a person along with pistol


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running, who after chase was arrested by him and that he

came to know about commission of murder of the deceased

Safdar by the arrested accused. He deposed that he recovered

pistol from his possession, prepared his arrest card, drafted

murasila Exh.PA/1 on the report of complainant, and after

preparing injury sheet and inquest report of the deceased,

shifted his dead body to the mortuary for postmortem

examination. He did not utter a single word about receipt of

any information about the incident as stated by him in the

murasial. He failed to disclose the place of receipt of

information, the name of informer, source of information and

the time in which he reached the spot. Constable Manzar,

marginal to recovery memo Exh.PW.7/2, vide which

Muhammad Iqbal Khan ASI, allegedly recovered and took into

possession 30 bore pistol from the appellant introduced totally

new events by deposing that they were present on the spot

when in the meanwhile, a person fired at another, who died

and after that Thanidar handed over him his dead body which

he shifted to the hospital. This witness did not disclose about

presence of complainant and PWs Maqsood and Saeed on the


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spot. Besides, he himself and PW Muhammad Iqabal have been

shown eyewitnesses of the incident but such is not the case of

the prosecution. PW Muhammad Iqbal has not stated anything

about commission of the offence in their presence. PW

Muhammad Iqbal Khan ASI, prepared injury sheet and inquest

report of the deceased on the spot. In cross-examination he

admits that during the days of occurrence he was performing

his duties in operational staff having no concern with the

investigation Branch. He being official of the operational staff,

availability of inquest report and injury sheet with him on the

spot, does not appeal to judicial mind. Besides, the inquest

report does not bear the necessary details of the incident

including the time of occurrence. One Nazir and Muhammad

Ajmal Shah, residents of Mohib Banda have been cited as

identifiers of the dead body and according to PW Muhammad

Iqbal ASI, Mohib Banda is at a distance of 5 Kilometers from

the spot. Both these witnesses have not been shown present

on the spot neither by the complainant nor by PW Muhammad

Iqbal ASI, then how they reached the spot soon after the

incident, covering 5 Kilometers distance and why complainant


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and PWs Saeed, Maqsood, who allegedly were present on the

spot, were not cited as such. This is another crucial aspect of

the incident which disturbs a prudent mind, about the mode

and manner of the incident, presence of the alleged

eyewitnesses on the spot and the proceedings allegedly

conducted therein.

14. A look over initial report of the complainant in the

shape of murasila Exh.PA/1 reveals that he has not mentioned

detail story of the incident. He just narrated that was present

with his deceased son when in the meantime, a young boy

came there and shot dead his son, who was arrested by PW

Muhammad Iqbal and that the incident has also been

witnessed by PW Maqsood and Saeed, but during trial when he

appeared as PW.1 he introduced a detail story, that on the day

of occurrence his son Safdar had gone to Mardan bazaar to

repair Flyhing Coach; that he along his nephews PWs Maqsood

and Saeed, went after him to get some money from him for

purchase of house hold articles; that when they reached the

mechanic shop, his son Safdar was standing outside of (Mistry

Khana); that a person came near his son and opened fire at


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him; that he followed the accused to caught hold of him, but

he aimed his pistol at him and warned him not to come near;

that police present near the spot encircled and arrested him

along with pistol; that he came towards his deceased son, put

him in Flying Coach and took him to the hospital; that he told

police that his son had been murdered by the accused arrested

by them, who recorded his report, which besides him, was also

signed by PW Maqsood. This detail story has never been put

forth by the complainant in his initial report, which seems to be

after thought to make his statement believable, but in cross-

examination he totally shattered his own version by deposing

that he was called through mobile phone by a person that his

deceased son had been injured and he should reach him; that

when he reached the spot, his son was shot dead in his

presence by the accused facing trial. This piece of statement of

the complainant totally de-shapes the structure of the

prosecution case, which clearly proves that he was not present

with the deceased, and came to know about the incident on

information through his mobile. When learned counsel for the

complainant and learned AAG for the State were confronted


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with this piece of statement of the complainant, they could not

defend this aspect of the prosecution case to satisfy the judicial

mind through plausible explanation, rather according to them,

the same being a minor contradiction was ignorable. The

incident has not been registered in the FIR, rather through

murasila, a blank paper, which can be easily prepared, torn

and again prepared, at any time by inserting any story and

making any person as eyewitness, after thought, deliberation

and consultation. It has been held by the apex Court in so

many judgments that the F.I.Rs, which are not recorded at the

Police Station suffer from the inherent doubts that those are

recorded after consultation and deliberation. Reliance may be

placed on case titled, “Allah Bachaya and another vs the

State” (PLD 2008 SC 349). Moreso, the story of the

complainant that he along with PWs Maqsood Ali and Saeed,

left their village to purchase house hold articles in Mardan

Bazaar and that since he was not having money, therefore, he went

after his deceased son to workshop to collect the same from him,

does not appeal to a prudent mind, because complainant as well as

PW Maqsood have admitted in their statements that the


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articles which they wanted to purchase in the Bazaar, were

easily available in their village shops. So if those articles were

available in the village shops, what compelled the PWs to put

themselves in trouble by proceedings to Bazaar. It also does

not appeal to our mind that complainant was not having money

in his pocket and for collecting the same, he proceeded after

his son to the workshop. Even for the sake of argument if we

admit that he was not having money in his pocket, he could

easily borrow the same from his nephew PW Maqsood Ali, who

had visited village from Dubai few days prior to the incident. If

PW Maqsood Ali too was not having any money, the

complainant could borrow it from PW Saeed, instead of visiting

his son who was in workshop. This story of the PWs is cooked

one just to make believable their association with each other

and their presence on the spot. Neither, mechanic of the

alleged workshop nor anybody else from the nearby shops,

where the deceased had taken his Flying Coach, has been

examined in support of presence of the PWs with the deceased

on the spot. The alleged Flying Coach has also not been taken

into possession nor has anything been brought on record to


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prove ownership of the deceased about any such Flying Coach.

From the above discussed facts and circumstances of the case,

it can be safely concluded that the PWs were not present on

the spot with the deceased at the time of incident rather they

are procured.

15. PW Maqsood Ali appeared as PW.2. In cross-

examination he did utter about presence of abandoned PW

Saeed, with them. He deposed that on the fateful day at about

3.00 p.m., he came out from his house to purchase articles and

went to the house of complainant and told them that if they

need any article, he could bring for them, but complainant told

him that he wants to accompany him to the bazaar to purchase

articles; that they all came in Rickshaw to bazaar. Certain new

events has been introduced by this witness during his cross-

examination which he had never stated in his statement

recorded under section 161 Cr.P.C., with which he was

confronted during his statement, therefore, amounts to

dishonest improvements just to bring in line his testimony with

the complainant and other circumstances of the case.

Complainant Sultan has not stated a single word about visit of


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PW Maqsood to his house and inquiring from him about need

of any articles. Both the alleged eyewitnesses deposed that

after commission of the offence, they put the dead body of the

deceased in Flying Coach, so in such exercise their hands and

clothes should have been smeared with the blood of the

deceased, but neither they have shown their hands nor clothes

to the I.O. to establish their presence on the spot with the

deceased. Had complainant and PW Maqsood present with the

deceased, they would have definitely identified his dead body,

but contrary to it identifiers of the dead body of the deceased

are two other persons from village Mohib Banda, lying at a

distance of 5 Kilometers from the spot. All these peculiar facts

and circumstances of the case squarely establish that the

alleged eyewitnesses were not present on the spot at the time

of incident, rather they have been procured, later on,

therefore, their testimony, which otherwise, is suffering from

material contradictions and discrepancies, cannot be believed

and relied upon.

16. As regard positive FSL report qua the alleged

recovered crime pistol and empties from the spot, suffice it to


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say that the recovered pistol has not been sealed on the spot

as evident from the murasila and admission of PW Muhammad

Iqbal ASI that “he has not mentioned in the murasila that the

pistol was sealed on the spot”. Besides, the pistol and empties

have been sent to the FSL on 11.05.2011 i.e. after a delay of

about 09 days, for which no plausible explanation has been

furnished by the prosecution to determine as to whether the

pistol and empties were in safe hand during this period. In

absence of any evidence qua safety of the empties and pistol,

the positive FSL report, would lose its authenticity. Besides,

such like recoveries are always considered as corroborative

pieces of evidence, which cannot be substitute of direct

evidence. Rather, such like pieces of evidence are always

taken into consideration alongwith direct evidence. Similarly,

positive Serologist Report qua bloodstained articles as well as

autopsy report of the deceased, would only be sufficient to

prove the unnatural death of the deceased with firearm on a

particular place, but by whom, it never tell the name/names of

the culprit/culprits in absence of direct evidence. In the instant

case as we have disbelieved the direct evidence, therefore,


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these corroborative pieces of evidence by no stretch of

imagination would sufficient to bring home the guilt of the

appellant. Guidance may be derived from Riaz Ahmed’s case

(2010 SCMR 846). As per the dictum of the apex Court,

corroborative evidence is meant to test the veracity of ocular

evidence. Both corroborative and ocular testimony is to be

read together and not in isolation. Wisdom in this regard may

be derived from Ijaz Ahmed’s case (1997 SCMR 1279

and Asadullah’s case (PLD 1971 SC 541). It has been

held by the apex Court in case titled, “Saifullah Vs the

State” (1985 SCMR 410), that when there is no eyewitness

to be relied upon, then there is nothing, which can be

corroborated by the recovery. Similarly, in case titled, “Riaz

Masih Vs the State” 1995 SCMR 1730, the honourable

apex Court held that recovery of crime weapon by itself is not

sufficient for conviction on murder charge. In case of Siraj Vs

Crown (PLD 1956 Federal Court 123), it has been held

that recovery of handle of blood-stained hatchet at the

instance of the accused, when other evidence was disbelieved,

then it was not enough for conviction. The same view has


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been expressed by the apex Court in Saifullah’s case (1985

SCMR 410).

17. For what has been discussed above, prosecution

has miserably failed to prove the incident in the mode and

manner as alleged and to connect the appellant with the

offence of murder of the deceased through cogent and

confidence inspiring evidence beyond shadow of doubt and

thus, the learned Trial Court, by not appreciating the

evidence, in its true perspective reached to a wrong

conclusion by holding the appellant guilty of murder of the

deceased. The prosecution evidence is pregnant with doubts

about murder of the deceased by the appellant, benefit of

which is to be extended to the accused/appellant as

according to golden principle of benefit of doubt; one

substantial doubt would be enough for acquittal of the

accused. The rule of benefit of doubt is essentially a rule of

prudence, which cannot be ignored while dispensing justice

in accordance with law. Conviction must be based on

unimpeachable evidence and certainty of guilt and any doubt

arising in the prosecution case, must be resolved in favour of


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the accused. The said rule is based on the maxim “ it is

better that ten guilty persons be acquitted rather than one

innocent person be convicted” which occupied a pivotal place

in the Islamic Law and is enforced strictly in view of the

saying of the Holy Prophet (PBUH) that the “mistake of Qazi

(Judge) in releasing a criminal is better than his mistake in

punishing an innocent”. Wisdom in this regard can also be

derived from the judgments of the apex court in case titled,

”Muhammad Khan and another Vs the State” (1999

SCMR 1220) and case titled, “Muhammad Ikram Vs

the State” (2009 SCMR 230).

18. As regard recovery of pistol from possession of

the appellant, the prosecution to this effect has not shattered

the prosecution evidence, therefore, the learned trial Court

has rightly convicted and sentenced the appellant under

section 13 of the Arms Ordinance.

19. Resultantly, we allow this appeal, set aside the

convection and sentences of the appellant recorded and

awarded by the learned Trial Court under section 302 (b)

PPC, vide impugned judgment dated 06.12.2013, and hereby


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acquit him of the charge of murder. However, his conviction

and sentence under section 13 of the Arms Ordinance, is

maintained, resultantly, to this effect his Cr.A. No.648-

P/2013, titled, “Shah Zeb Vs the State” stands dismissed.

Murder Reference No.12-P/2013, sent by the learned Trial

Court for confirmation of the death sentence, is answered in

Negative.

These are reasons of our short order of even date.

Announced. 03.03.2015

J U D G E

J U D G E


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maintained that the learned Trial Court has the

jurisdiction to entertain the suit and in case of

decision of issue of the jurisdiction in favour of the

petitioners, after conclusion of trail, it would be

respondent to suffer and she is ready to face the

consequences of such scenario. He while supporting

the impugned orders, sought dismissal of the instant

petition.

5. Come what may, the issue raised, being a

mixed question of law and fact, can properly be

resolved, after recording pro and contra evidence of

the parties by the learned Trial Court. In view of the

above, the impugned orders of both the courts below

are set aside and the matter is remanded to the

learned Trial Court with the direction to frame a

specific issue (qua) jurisdiction, if already not framed,

to afford an opportunity to the parties for leading

their evidence and then to decide the suit on merits

in accordance with law. The learned Trial Court shall

conclude the trial as early as possible, but not later than

4 months, on receipt of the record. Office shall ensure


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JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, · committed the murder of his son at the abetment and...

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Transcript of JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, · committed the murder of his son at the abetment and...