2025 PLP 1752 (YLR)

Sahibzada Asadullah, J.

Through this criminal appeal, appellant has questioned the legality and validity of the judgment dated 20.09.2023 passed by learned Additional Sessions Judge-VI, Nowshera delivered in case FIR No.59 dated 19.02.2020 under sections 302/324/34 P.P.C, registered at Police Station Misri Banda, Nowshera, whereby the appellant has been convicted and sentenced in the following manner: - i. Under section 302(b) P.P.C, to life imprisonment and would also pay compensation amount of Rs.200000/-(two lac), payable to the legal heirs of the deceased within the meaning of Section 544-A Cr.P.C which shall be recoverable as arrears of land revenue. In case of default of payment of compensation, the convicts shall further undergo simple imprisonment for a term of six (06) months. ii. Under section 324 P.P.C to ten (10) years of Rigorous Imprisonment and shall also be liable to fine in tune of Rs.50,000/-. The same shall be recovered according to the law and in default thereof, he shall further undergo simple imprisonment for a term of six (06) months. iii. Under section 337-D to pay the Arsh one-third of Diyat to the injured complainant Qaiser and as Tazir ten (10) years of Rigorous Imprisonment. iv. All the sentences mentioned above shall run concurrently. v. Benefit of Section 382-B Cr.P.C was extended to the appellants."

2. Facts, in brief, as per contents of the FIR are that on 19.02.2020 complainant/injured reported the matter to the police at MMC, Mardan to the effect that he is the driver of Zia Ullah; that on the day of incident he along with deceased Mst. Nazia and Mst. Zainab went to Gumbat Mera, Mardan in a white colour Fielder motorcar bearing No.890/UA; that on return when they reached to the place of occurrence, two persons duly armed with pistols riding on motorcycle 125 CC without number, came there, out of them, one was Syed Nabi Shah; that the accused intercepted their motorcar and when deboarded, they started firing at them with murderous intention, as a result of which the complainant Qaiser got hit on the right side of his chest and Mst. Nazia got hit on her right eye and chest, while Mst. Zainab miraculously escaped unhurt. Later on, one Nisar Khan (father of the deceased Mst. Nazia) recorded his 164 Cr.P.C statement, wherein he also charged the accused Syed Nabi Shah and one unknown accused for the commission of the offence. After the arrest of accused Syed Nabi Shah, he disclosed the name of the co-accused as Mohabbat Khan, hence, the present FIR.

3. On arrest of the accused and on completion of investigation, complete challan was submitted before the Court against the accused. The provisions of 265-C Cr.P.C were complied with, and charge was framed against the accused, to which they pleaded not guilty and claimed trial. In order to substantiate its claim prosecution produced and examined as many as 14 witnesses. Thereafter, statement of accused were recorded under section 342 Cr.P.C wherein, they professed their innocence, however, neither they opted to produce defense evidence nor wished to be examined on Oath under section 340(2) Cr.P.C. After full-fledged trial, the learned trial Court convicted and sentenced the appellants, fully detailed in the opening para of this judgment, hence, the present appeal.

4. Heard, record perused.

5. The shocking incident claimed life of the deceased and left behind the complainant, injured. The dead body was shifted by the complainant and the eye-witness to the hospital where the matter was reported. The injury sheets and inquest report were prepared. The dead body was sent for post-mortem examination whereas the complainant, being injured, was sent for his medical examination. He was examined by the doctor and his medico-legal certificate was prepared. The spot was visited by the Investigating officer and on the pointation of the eye-witness, prepared the site plan. During spot inspection, the Investigating officer collected blood through cotton from the place of the deceased, whereas 04 empties of 30 bore were collected from the spot lying scattered. The collected empties were sent to the firearms expert but the report is deficient in that regard. As the accused went into hiding, so it was on 28.06.2020 that the appellant was arrested, whereas the acquitted co-accused was arrested on 15.07.2020. As the physical custody of the accused/appellant was requested, so he, during investigation, led the Police party to the spot and also on his pointation, from his house, the motorcycle used in the commission of the offence was recovered. Both the accused were committed for trial and on conclusion of the trial, the learned trial Court was pleased to convict and sentence the appellant vide the impugned judgment, whereas the co-accused was acquitted from the charge.

6. It was after full-dressed trial, that the learned trial Court succeeded in holding the appellant responsible for the murder of the deceased and for the injury caused to the complainant, but this Court is to see as to whether, the learned trial Court could appreciate the evidence on file and that the conclusion drawn finds support from the evidence, collected by the prosecution. We are conscious of the fact that the tragedy claimed life of the deceased and the complainant, in the same transaction, received a firearm injury, but whether that alone would be sufficient for holding the appellant responsible for the tragic incident and that whether the learned trial Court could appreciate the peculiar circumstances of this particular case. True that the complainant got injured in the same incident, but mere stamp of injuries on his body would hardly make the appellant responsible for the tragic incident, unless the complainant would prove his presence on the spot and would convince that the incident occurred in the stated manner. We do not doubt the injuries received by the complainant, but it would hardly lead this Court towards the guilt of the appellant, rather under all circumstances, the complainant must convince his presence on the spot and also the manner in which the unfortunate incident occurred. Mere stamp of injuries would hardly qualify for the conviction, of an accused, as by doing so, the Courts of law would deviate from the set pattern, which in turn would lead to unfavorable results, not for the appellant, but for the prosecution as well. The stamp of injuries may indicate the presence of the injured on the spot, but that would hardly qualify a witness as a truthful witness and would hardly convince that what the witness spoke, was the whole truth. In this particular case, on one hand, the complainant reported the matter, whereas on the other, PW Zainab, was shown, to be the eye-witness of the occurrence but astonishingly, she was neither produced nor her statement was recorded. The prosecution could produce the complainant as the sole eye-witness and no efforts were made to get examine the eye-witness, so the prosecution's case is based upon the sole statement of the complainant, who though received a firearm injury, but his status from the beginning till the end, is shrouded in mystery, so to believe his testimony, much care and much caution is needed. True that prosecution has the choice to produce the witnesses it likes, but while exercising such a choice, the prosecution must display reasonableness, more particularly, when the most relevant and the most important witnesses are left over. In order to avoid miscarriage of justice, we deem it essential to re-appreciate the evidence on file and to re-consider the reasoning of the learned trial Court, when it reached to such a conclusion.

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 complainant received injury in the same transaction and that it was he who reported the matter; as to whether the medical evidence supports the case of the prosecution and as to whether the prosecution succeeded in bringing home guilt against the appellant.

8. In order to appreciate the manner in which the incident occurred, we deem it appropriate to go through the statements of the witnesses and to consider the same in light of the evidence collected from the spot. Record tells that the deceased, the complainant and the eye-witness were the residents of Sheikh Maltun Town, Mardan, whereas the unfortunate incident occurred in a deserted area near Karnal Sher Khan Interchange, so this Court is to see that how the deceased, the complainant and the eye-witness reached to the haunted place and that how the accused chased the motorcar to the spot. In order to resolve the controversy, we deem it essential to go through the report of the complainant and his statement recorded before the learned trial Court. The complainant in his report explained the places they visited before the occurrence and also confirmed that on reaching to the spot, the accused attracted on a motorcycle and fired at them. The complainant further disclosed that after commission of the offence, the accused decamped from the spot, whereas he along with the eye-witness, shifted the deceased in injured condition to the motorcar and drove towards the hospital. It has further been explained that the deceased breathed her last while en-route to the hospital and he reported the matter to the local Police. The complainant put his appearance before the learned trial Court and recorded his statement as PW-4. In his examination-in-chief, he tried to explain the circumstances, in which the incident occurred, but at the same time, we noticed great improvements in his statement, so this Court is to appreciate as to what impact his improvements would have over the truthfulness of this witness and that whether the same can be termed as dishonest. The complainant while reporting the matter charged the accused for firing at them, but in his Court statement, he made improvements and explained the circumstances in a different manner. Report tells that on reaching to the spot, the accused stopped the motorcar, they de-boarded and were fired at, but in his examination-in-chief he explained that he was first targeted and thereafter the deceased was fired at. The witness maintained silence in respect of the firing over the eye-witness, so the same is in conflict with what was reported. The improvement is not only conscious, but dishonest as well, that too, with the only attempt to establish his presence on the spot. It is essential to note that in his Court statement, the complainant disclosed that after receiving firearm injury, he with help of the eye-witness, shifted the deceased then injured to the motorcar and thereafter, he drove the motorcar towards the hospital where he reported the matter, but the report lacks the explanation. These facts were introduced after the lapse of time, that too, when the trial commenced. The injured received a firearm injury on his chest, whether after receiving such an injury, the complainant was able to drive and was capable to shift the deceased from spot to the motorcar. Once he confirmed that due to severe injury, he failed to notice that what injuries were caused to the deceased, then with the same injury, how did he shift the deceased to the motorcar and that how he managed to drive to the hospital and reported. We are shocked to see that the report of the complainant was verified by Zia Ullah i.e., husband of the deceased, but his statement was neither recorded by the Investigating officer nor he put his appearance before the trial Court. The complainant instead of Zia Ullah, introduced one Atta Ullah as the one who verified the report, but he did not appear and his statement was never recorded. The scribe was examined as PW-10, who stated that the report was made by the complainant, Awhereas PW Zia Ullah verified the same. When the statements of these witnesses are taken into consideration, no ambiguity is left that they did not support each other on this material aspect of / the case and the conflict between their statements has damaged the case of the prosecution beyond repair. Once the injured witness denied the presence of PW Zia Ullah, then his statement can be taken into consideration, and once the complainant claimed that his report was verified by one Atta Ullah, then this Court is inclined to hold that the scribe was not telling the truth. PW Zia Ullah, who was the husband of the deceased, did not put his appearance before the Investigating officer and even before the learned trial Court, when the Court proceeded with the trial, so the lack of interest on his part has questioned the truthfulness of the complainant on one hand, and on the other the promptness and reliability of the report. There is no denial to this fact that the complainant claimed to have received a firearm injury in the same episode, but at the same time, the improvements he made has questioned his truthfulness, so the stamp of injury on his body would hardly be a circumstance to be pressed into service for holding the appellant responsible for the tragic murder of the deceased. Stamp of injuries can tell alone of the presence of a witness, but it by itself is not sufficient for convincing that what the witness told is the whole truth. Similar circumstances were dealt with by the apex Court in case titled "Amin Ali and another v. The State" 2011 SCMR 323), wherein, the apex court has held as under:

12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses as has rightly been held in case titled Said Ahmad v. Zammured Hussain (1981 SCMR 795)

9. Apart from the complainant, father of the deceased i.e., Nisar Khan, also recorded his statement under section 164 Cr.P.C, where he charged the appellant and another for the murder of the deceased, but admittedly he is not the eye-witness of the occurrence. This witness put his appearance before the learned trial Court, his statement was recorded as PW-5, but he could not convince regarding the alleged motive. This witness tried his level best to convince of the inter-se relationship between the parties and also regarding the interest of the appellant, who was claiming the hand of the deceased, but when this witness was cross-examined, he failed to answer satisfactorily and as such, his conscious attempts reacted back over the genuineness of his statement and over his credibility as a witness. It was stated that the marriage between the deceased and PW Zia Ullah was solemnized three (03) years before the occurrence and the spouses were blessed with a daughter, but the witness could not convince that why the appellant waited for long three years and that why the spouses were allowed to live a happy life, rather the appellant would have attempted in the early days of their marriage. The witness further explained that because of close relationship, the appellant was on visiting terms and that he visited his house till the incident occurred. If, the witness knew the intention of the appellant, then why he permitted the appellant to visit his house. The introduction of this witness was to fill up the lacuna, but he failed to fetch the desired results. We are to see that who visited the spot and that on whose pointation, the site plan was prepared. The complainant claimed to have pointed out the spot to the Investigating officer, on the next day of the incident, whereas the Investigating officer claimed to have prepared the site plan on the pointation of the eye-witness. As the eye-witness was not produced, so this aspect of the case cannot be appreciated while referring to her statement but we are anxious to ascertain the truthfulness of the witness, so for this particular purpose, we took into consideration the statement of the scribe, who was examined as PW-10, the complainant PW-04 and the marginal witness, as PW-06. The site plan is shown prepared on the pointation of the eye-witness, but the complainant denied the same. The marginal witness disclosed that he along with the Investigating officer visited the spot on the day of occurrence at 08:30 PM; the site plan was prepared on the pointation of the complainant and the Investigating officer spent 45 minutes on the spot. The Investigating officer was examined as PW-07, who stated that the site plan was prepared on the pointation of the eye-witness i.e., Mst. Zainab. He further explained that he visited the spot on 19.02.2020, and prepared the site plan on the pointation of the eye-witness. Self-stated that as it was 12 O'clock, so some proceedings were carried out on 19.02.2020 whereas the remaining on 20.02.2020 as the day changed, so the date. When the statement of Investigating officer is read in juxtaposition with that of the marginal witness, both are in conflict and even the complainant denied their statements qua pointation by the eye-witness. Right from the beginning till the end, the prosecution witnesses fell in dishonest improvements, trying to make its case a success, but instead they damaged the case beyond repair. Neither the complainant could tell that who prepared the site plan, on whose pointation nor the Investigating officer. It was the inconsistency between these witnesses which showered mist over the place of occurrence and even the witnesses could not confirm the venue, where the unfortunate incident occurred.

10. There is a mystery regarding the presence of the eye-witness and the witnesses could not confirm her identity. Had the eye-witness been present at the time of report, then she would have verified the report of the complainant, but neither the Investigating officer could procure her attendance, nor her statement could be recorded, by the learned trial Court. The eye-witness was the most important witness, but the prosecution, more particularly, the Investigating officer, lacked interest in bringing her to light. Once it is disputed that on whose pointation the site plan was prepared and once the witness was left unexamined, then the site plan as a piece of evidence can hardly be taken into consideration. The conduct of the complainant is not above board, as from the beginning till the end, he tried to conceal the real facts and he failed to convince that it was he who took the deceased for that particular purpose to different villages. It is for the complainant to tell that what relationship he had with the eye-witness and that wherefrom the eye-witness accompanied the deceased. As the unfortunate incident occurred in the month of February, that too, at the time when the darkness had prevailed, so on one hand the identity of the assailants is disputed, whereas on the other the prosecution would tell that from where the accused received information regarding their presence on the spot. Had the appellant an interest to kill, he would have killed the deceased when she visited his village. The conduct of the complainant is not above board, as he could not explain that who permitted him to take the ladies to the desired places and that what relationship, either he or the deceased, had with the eye-witness. As PW Zia Ullah being husband of the deceased did not record his statement, so his conduct and his interest has further created doubts in the case of the prosecution. The circumstances do tell that the incident did not occur at the stated time, in the stated manner and that the complainant concealed the real facts, The statement of the eye-witness is shown recorded under section 161 Cr.P.C where she narrated the incident in a different manner, by disclosing that the accused tried to kidnap/take away the deceased but the deceased was not willing, so the deceased grappled with the accused and the accused fired at the deceased. If such statement is taken into consideration, then this Court is to see that why the human hair found in possession of the deceased, collected by the doctor, handed over to the Investigating officer was not sent for DNA, knowing the fact that it was the best evidence, in possession of the prosecution, for establishing the identity of the accused. The reluctance on the part of the Investigating officer to transmit the same to the laboratory for DNA is a factor which this Court cannot ignore and in our understanding, the Investigating officer did not send the same apprehending that the same would exclude the involvement of the appellant and that his miseries, to investigate further, would increase. The world has changed and so the requirements to prove. In the like nature cases, it is a must that recourse should be made to scientific evidence, more particularly, the DNA if such like material would come in possession of the prosecution. As admittedly, human hair was found in possession of the deceased, the same was collected by the doctor and received by the Investigating officer, so under all circumstances, it was essential for the Investigation officer to have asked for the conduct of DNA, but knowing the fact that the same would lead to the actual culprit, the evidence was disrespected and dishonored. Emphasis is on the conduct of DNA, provided the prosecution would come in possession of such like evidence and even the Superior Courts time and again highlighted and emphasized the collection of such evidence. Reliance is placed on the judgment of the apex Court (PLD 2021 Supreme Court 362) titled "Ali Haider alias Papu v. Jameel Hussain and others" which reads as follow: - "

10. DNA evidence is considered as a gold standard to establish the identity of an accused. As a sequel of above discussion, it can safely be concluded that DNA Test due to its accuracy and conclusiveness is one of the strongest corroborative pieces of evidence."

11. Forensic science assists the law enforcement by providing accurate, objective analysis of criminal evidence. It helps to identify the culprit, investigate the duration and understanding the nature of the crime, forensic research scientists can aid investigators in learning how a crime was committed, including what tools were used, when the crime occurred and where it occurred. DNA evidence has revolutionized the field of forensic science, playing a crucial role in solving homicide cases. By analyzing genetic material found and crime scenes, investigators can identify suspects with a high degree of certainty, but it requires the strongest will and the desire to bring the actual culprits to books. We are confronted with many profound difficulties which hamper our quest to discover the cause and to unearth the wrongdoer. We live in a world where change is inevitable, but live in a society where no one is ready to shoulder the responsibility. We are still living in illusions where performance is gauged either with honesty or with efficiency, but we never demanded honest and efficient at one and the same time. We must know that neither honest, nor efficient alone would work. Success lies when both the qualities combine. We do not blame the investigating officer to have conducted investigation in dishonest manner but we feel no hesitation in saying that the investigating officer was inefficient. It is for him to tell that it was either his dishonesty or inefficiency that prevailed. Despite having the best evidence in his possession, he spoiled the same which in turn benefited the killer and as such a precious life though lost, but the killer went undiscovered. The courts proceed when the prosecution finishes, but we must remember that in a system we have i.e., accusatorial, the courts are to hear and then decide, unlike the inquisitorial system. Here it lies with the prosecution to charge and to prove. We noticed that the prosecution charge hastily but it was lacking the courage to investigate diligently. We do not blame the prosecution, as no efforts were made to streamline the way the investigation is made and to encourage the collection of credible evidence which in turn would decide the fate of all concerned. Here much is expected from the Courts and less from the law enforcement agencies instead, it is the law enforcement agency which is to collect more and the courts would then appreciate the collected evidence. It is irony of fate that when prosecution submits challan/charge sheet, it ends like, "Now the accused is left at the mercy of the court. We are mistaken in holding so, because the courts are supposed to decide the matter strictly in accordance with law, that too, after appreciating the evidence on file. We noticed that the investigating officer, in this particular case, surrendered and his surrender has disturbed the balance which in turn benefited the accused/appellant. We are not reluctant in holding that this imbalance in turn has occasioned miscarriage of justice. We are mindful of what Hazrat Ali (R.A) said: "Society can survive with Kufr (infidelity), but not with injustice." Much is needed for overhauling the existing criminal justice system, but that is possible only when the persons at the helm of affairs would step forward with the strongest desire, to rectify the errors, and by doing so, we would prevent further erosion to which our system in prone.

12. We are conscious of the fact that the most important witnesses were not produced, so it is for the prosecution to tell that why it lacked interest in bringing the witnesses and it is for the Investigating officer to tell that why statement of the husband of the deceased was not recorded. No explanation is given by the Investigating officer for not associating the eye-witness during investigation, so an inference can be drawn that the witness was not ready to support the false claim of the complainant and that the prosecution did not produce the witness with a fear in its mind. Once the best available evidence is withheld, then an adverse inference can be drawn and for this particular matter, we are inclined to take into consideration Article 129-G of the Qanun-e-Shahadat Order, 1984. Reliance is placed on case titled "Abdul Qadeer v. The State" reported as 2024 SCMR 1146, the relevant is reproduced below: - "

15. Under Article 129 (g) of the Qanun-e-Shahadat Order, 1984 the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. Hence, adverse inference is drawn to the effect that had the above witnesses been produced at the trial, they would have not supported the prosecution case. Reliance in this regard is placed on the cases of "Muhammad Jabran v. The State"1 and "Mst. Shahnaz Akhtar v. Syed Ehsan ur Rehman".

13. The medical evidence is in conflict with the ocular account. As the deceased received multiple firearm injuries, so it excludes the possibility that she was fired at in the stated manner. The complainant in his Court statement, made dishonest improvements regarding the manner in which the deceased was fired at and regarding the accused who fired at the deceased. If we admit struggling between the assailant and the deceased, then the medical evidence would have supported the same, but neither marks of violence were found on the dead body of the deceased nor any entry was caused from a close range. As on one hand the eye-witness failed to convince that the incident occurred in the stated manner, whereas on the other, the medical evidence does not support the case of the prosecution, so the conflict between the two has damaged the case of the prosecution beyond repair. Reliance is placed on the judgment of the apex court titled "Khial Muhammad v. The State" (2024 SCMR 1490), wherein, it has been held as under: "The State (1995 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048). The same view was reiterated in the case reported as Abdul Jabbar v. State (2019 SCMR 129) wherein it was held that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."

14. The motive was stated to be the refusal of the hand of the deceased by her father, but as the deceased got married and spent as many as 03 years with her husband and no attempt was made by the appellant to kill her at the earliest, so in our understanding, the prosecution failed to prove the motive, that too, when no independent witness was examined in that respect. True that weakness or absence of motive would hardly be a circumstance for the acquittal of an accused, but when motive is the only cause of killing, then its failure may lead to outright acquittal, and the present case is no exception. Reliance is placed on case titled "Iftikhar Hussain alias Kharoo v. The State" (2024 SCMR 1449), wherein, the august Supreme Court held as under: "As far as motive is concerned, same stands disproved. Since, no evidence was produced by the prosecution to substantiate the motive of the accused to commit the murder of the deceased, specifically in light of the fact that, petitioner/ accused has no previous enmity with the complainant party, therefore motive set up by the prosecution in the FIR disbelieved by the High Court."

15. We failed to gather from record any reason that would justify the approach of the learned trial Court and the discrepancies between the witnesses has further added to the miseries of the prosecution. We are inclined to hold that the learned trial Court failed to appreciate the evidence on file and as such, misdirected itself, both in law and on facts while reaching to such a conclusion.

16. The cumulative effect of what has been stated above, leads this Court to an irresistible conclusion that the prosecution failed to bring home guilt against the appellant and the learned trial Court fell into error while handing down the impugned judgment. The impugned judgment is suffering from inherent defects, which calls for interference. The instant criminal appeal is allowed, the impugned judgment is set aside and the appellant is acquitted of the charge levelled against him. He be released forthwith, if not required to be detained in any other criminal case. Above are the detailed reasons of our short order of even date. JK/37/P Appeal allowed.