*M.Siraj P.S. D

1

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, BANNU BENCH

(Judicial Department)

Cr.A. No.154-B/2011

Date of hearing: 19.06.2014.

Appellant (s) : Abdul Razzaq S/o Miras Khan by Mr. M.

Alamgir Wazir, Advocate.

Respondent(s) : State by Sairf-ur-Rehman, A.A.G.

Respondent by Mr. Anwar-ul-Haq, Advocate.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This

common judgment shall dispose of the instant

criminal appeal, filed by appellant Abdur Razaq

against the judgment dated 05.04.2011 whereby he

was convicted under section 302 (b) P.P.C. and

sentenced to undergo imprisonment for life and to

pay a fine of Rs.50,000/- to LRs of deceased, as

compensation within the meaning of section 544-A

Cr.P.C. or in default thereof to undergo 6 months S.I.

further, in case F.I.R No.258 dated 12.06.2009

registered under sections 302/324/34 P.P.C., Cr.R.

*M.Siraj P.S. D

2

No.05-B/2011, filed by petitioner-complainant

Muhammad Hanif for enhancement of sentence of

convict from life imprisonment to death, Cr.R.

No.18-B/2011, filed by petitioners Muhammad Hanif

and Yousaf Khan seeking reversal of the findings of

the Trial Court to the extent of deletion of section

324 P.P.C. and Cr.A. No.141-B/2011, filed by

appellant Muhammad Hanif against acquittal of

accused/respondent Miras Khan, as all are the out

come of the same judgment of the learned Trial

Court, referred above.

2. The prosecution case is that on

12.06.2009 at 11.00 a.m. complainant Muhammad

Hanif (PW.8), in company of dead body of his

brother Rehmat Ullah, reported to Ghulam

Muhammad ASI (PW.11), in emergency room of civil

hospital Naurang Lakki Marwat that on the fateful

day, he, his deceased brother and Yousaf Khan

*M.Siraj P.S. D

3

(PW.9), was sitting near a Tube-well of their village

Nali Chak. At 10.00 a.m accused Miras Khan, duly

armed with “Dasguzar” 7.62 bore rifle, Wahid Ullah

and Abdur Razaq, armed with mark-IV rifle and

Kalashnikov, respectively, sons of Miras Khan, came

there. Accused Miras Khan ordered his sons/co-

accused to kill, on which, accused Wahid Ullah and

Abdur Razaq opened fire at them with intention to

commit their Qatl-e-Amd, resultantly, his brother

Rehmat Ulalh was hit and fell on the ground while he

and PW Yousaf Khan luckily remained unhurt. After

the occurrence the accused run from the spot. The

injured succumbed to the injuries on the way when

he was being shifted to hospital. Motive behind the

occurrence is stated to be a dispute over the said

Tube-Well. Report of the complainant was reduced

in to writing in the shape of murasila Exh.PA, on the

basis of which F.I.R mentioned above was registered.

*M.Siraj P.S. D

4

3. Initially challan under section 512

Cr.P.C. was submitted against all the accused. Later

on, accused-appellant Abdur Razaq and accused

Miras Khan were arrested. On completion of

investigation, supplementary challan was submitted

against them before the learned Trial Court, where

they were formally charge sheeted to which they

pleaded not guilty and claimed trial. To prove their

guilt, prosecution examined as many as fourteen

witnesses. After closure of the prosecution evidence,

statements of accused were recorded under section

342 Cr.P.C. wherein they denied the prosecution

allegations and professed their innocence. They

however, declined to be examined on oath under

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

defence. On conclusion of trial, the learned Trial

Court, after hearing both the sides, convicted and

sentenced appellant Abdur Razaq under section 302

*M.Siraj P.S. D

5

(b) P.P.C. as mentioned above, however, acquitted

co-accused Miras Khan.

4. Learned counsel for the appellant

argued that conviction and sentence of the appellant

recorded by learned Trial Court is the result of

misreading and non-reading of evidence; that ocular

account furnished by interested witnesses is

suffering from material contradictions and

discrepancies creating serious doubts in the

prosecution case; that let off the alleged

eyewitnesses by the accused who at their mercy and

their escape from the alleged firing of the accused,

when they were in close proximity of the deceased is

disturb a prudent mind; that medical evidence does

not support the prosecution version where

dimension of entrance wounds is one and the same

indicating the occurrence to be the job of single

person; that neither any crime empty nor weapon of

*M.Siraj P.S. D

6

offence has been recovered or sent to the FSL; that

testimony of the alleged eyewitnesses and I.O. are in

contradictions on material proceedings conducted

on the spot; that both the alleged eyewitnesses have

failed to established their presence on the spot,

hence, their testimony cannot be believed and relied

upon. He went on to say that accused Miras Khan

has not been attributed any role of firing by the

complainant, who is a man of advance age nor the

prosecution has proved his common intention

through cogent and confidence inspiring evidence,

hence, he has rightly been acquitted by Trial Court;

that prosecution case is pregnant of doubts, benefit

of which is to be extended to appellant/convict and

he be acquitted.

5. Conversely, learned counsel

complainant contended that accused are directly

charged for committing murder of the deceased

*M.Siraj P.S. D

7

along with their absconding co-accused; that

complainant and PW Yousaf Khan have furnished

true account of the occurrence and their testimony

finds corroboration from medical evidence as well as

circumstantial evidence; that both the accused

remained fugitive from law for noticeable period and

were declared Proclaimed Offenders, which prove

their guilty conscious. He argued that the learned

Trial Court has rightly held the appellant-convict as

guilt of the offence and he was liable to the

maximum punishment. He contended that

prosecution has also proved the guilt of acquitted

co-accused Miras Khan because on his command the

occurrence was initiated by his sons/co-accused, as

such he also sought his conviction. He lastly argued

that prosecution has brought cogent and confidence

inspiring evidence that the accused have also

attempted at the lives of the PWs, therefore,

*M.Siraj P.S. D

8

findings of the Trial Court qua section 324 P.P.C. are

liable to be set at naught.

6. Learned A.A.G. adopted the arguments

of learned counsel for the complainant.

7. We have considered the respective

submissions of learned counsel for the parties and

perused the record with their able assistance.

8. In this case the occurrence allegedly

took place on 12.06.2009 at 10.00 a.m. which has

been reported at 11.00 a.m. in civil hospital Naurang

by complainant Muhammad Hanif (PW.8) wherein

PW Yousaf Khan is also cited as eyewitness of the

incident. Both have furnished the ocular account of

the incident. Both of them are closely related to the

deceased. No doubt, conviction can be recorded on

the basis of testimony of interested and close

relative of the deceased provided their testimony is

trustworthy, confidence inspiring and find

*M.Siraj P.S. D

9

corroboration from other strong pieces of evidence.

Thus, taking the testimony of the alleged

eyewitnesses at the touch stone of said principle, we

have to evaluated their evidence.

9. In his report, complainant Muhammad

Hanif categorically stated that the moment they

shifted the deceased to hospital, he succumbed to

the injuries there, but in cross-examination he

deposed that deceased then injured Rehmat Ullah

died on the way to hospital. He further deposed that

they reached hospital at about 11.00 a.m/11.05 a.m.

and after 10/13 minutes of their arrival, police

reached there and similarly doctor also came. He

while contradicting his own stance further says that

he made report at 11.00 a.m. Here question arises

that when complainant reached hospital at 11.00 or

11.05 a.m. and after 10/13 minutes the police

reached hospital, how he made report at 11.00 a.m.

*M.Siraj P.S. D

10

The time of arrival of the complainant to hospital is

further contradicted by Ghulam Muhammad S.H.O.

(PW.5), who drafted murasila report. In cross-

examination he deposed that at about 10.30 a.m. he

received information through Moharrir in Police

Station about arrival of dead body to the hospital,

meaning thereby that the dead body was there in

the hospital at 10.30 a.m. Again according to

another eyewitness Yousaf they shifted the

deceased and reached hospital at 10.45 a.m. All the

three PWs have given different timings about their

arrival to hospital, making the report doubtful.

10. General role of firing has been

attributed to two accused by the complainant and

PW Yousaf Khan, but complainant making dishonest

improvements in his Court statement, in cross-

examination deposed that accused Abdur Razaq

fired three shots in single form while accused

*M.Siraj P.S. D

11

Waheed Khan fired four shots at them from a

distance of 8 to 10 paces. Perusal of site plan

Exh.PW.14/1 shows that both the eyewitnesses are

in close proximity with the deceased at point No.1

and point No.3 whereas at point No.2 the deceased

has been shown, but none of the PWs has sustained

any firearm injury, which does not appeal to a

prudent mind because keeping points of their

presence as shown in the site plan in juxtaposition

with the points of presence of accused, they both fall

in direct fire line of accused shown at points No.4, 5

and 6. It is not the case of the prosecution that the

eyewitnesses at the time of firing took shelter some

where. Moreover, it also disturbs a prudent mind

that when the accused had common motive with the

deceased and eyewitnesses, why the deceased was

chosen and the PWs were let off despite that they

were at the mercy of the accused armed with deadly

*M.Siraj P.S. D

12

weapons. Both the PWs have admitted existence of

a wall at their back on the spot but no bullet or

pellet has been recovered from the said wall. None

of the two alleged eyewitnesses have produced their

clothes smeared with the blood of the deceased as

they would have picked up the deceased while

shifting him to the hospital, which were important

piece of evidence to establish their presence with

the deceased on the spot. Similarly, both are

consistent on the point of shifting of deceased then

injured in a Rickshaw, but the said Rickshaw driver

has not been produced to establish their presence

on the spot. Inquest report does not bear names of

both these eyewitnesses as identifiers of the dead

body. Rather, one Ghulam Farid and Muhammad

Younas have been mentioned as identifiers of the

dead body. Had they been present with the

deceased the medical officer would have mentioned

*M.Siraj P.S. D

13

their names as identifiers of the dead body. All these

peculiar facts and circumstances of the case make

presence of the alleged eyewitness highly doubtful.

11. Both the alleged eyewitnesses as well

as Bashir Khan I.O. have also contradicted each other

on material aspects of investigation on the spot.

According to complainant Muhammad Hanif on his

arrival to his house from the hospital, the police

summoned him to the spot where he pointed out

place of occurrence. He deposed that preparation of

site plan started at about 1.00 p.m and took 30 to 35

minutes. He further deposed that I.O. remained on

the spot for about 30/35 minutes and thereafter left

the spot. As against that, Yousaf Khan (PW.9) says

that preparation of site plan took about one hour

and he remained on the spot with the I.O. for one

hour. While contradicting both the alleged

eyewitnesses, Bashir Khan I.O. (PW.14) deposed that

*M.Siraj P.S. D

14

he remained on the spot for 4/5 hours. The

statement of complainant that they were summoned

to the spot by the I.O. is negated by Hassan Khan HC,

marginal witness to recovery memo Exh.PW.1/1 vide

which bloodstained earth was secured from the spot

and recovery memo Exh.PW.1/2 vide which the last

worn bloodstained clothes of the deceased were

taken into possession by the I.O. In cross

examination he deposed that when they reached

spot, PWs Muhammad Hanif and Yousaf Khan were

already present there. He further deposed that they

remained on the spot till 5.00 p.m and the

bloodstained garments of the deceased were

brought and handed over to Bashir Khan SI on the

spot at 4.00 pm. Again the stance of this PW is

contradicted by Nisamatullah FC (PW.3), who

escorted the dead body of the deceased. He

deposed that after post mortem examination the

*M.Siraj P.S. D

15

medical Officer handed him over post mortem

documents and bloodstained garments of the

deceased which he produced before Bashir Khan S.I.

in police Station. These contradictory versions

regarding same facts make the reliability and

credibility of witnesses highly doubtful.

12. Autopsy report of the deceased reveals

that he sustained two entrance wounds having same

dimension i.e. ¼ “ x ¼ “. According to medical Officer

(PW.7) the entrance wound on back in the right

lumber caused the death of the deceased while so

far the remaining wounds are concerned, these were

simple in nature which cannot become the cause of

death. No crime empty has been recovered from the

spot. It is not the case of the prosecution that some

body interfered with the spot after the occurrence.

No crime weapon has been recovered from direct or

indirect possession of the accused. The dimension of

*M.Siraj P.S. D

16

entrance wounds on the person of the deceased in

absence of recovery of crime empties and FSL report

qua the same, strongly indicates the occurrence to

be the doing of a single person. The prosecution has

miserably failed to prove the occurrence to have

taken place in the mode and manner as alleged by

the complainant and PW Yousaf. Rather, the peculiar

facts and circumstances of the case strongly reveals

that deceased had been done to death by single

person with fire arm but not in presence of the

alleged eyewitnesses. Complainant is the brother of

deceased and he in his cross-examination admitted

existence of his house near the tube well. So

probably he was informed in his house by some one

else about the occurrence whereafter he and PW

Yousaf Khan would have attracted to the spot, but

this fact is fully established from the evidence

*M.Siraj P.S. D

17

available on record that both the PWs have not

witnessed the incident.

13. So far as abscondence of the appellant

is concerned. He has denied the same in his

statement under section 342 Cr.P.C. It is settled law

that abscondence alone, cannot be a substitute for

real evidence. It has been observed by the apex

Court in Farman Ali and others’ case (PLD 1980 SC

201) that abscondence by itself would be of no avail

to prosecution in absence of any other evidence

against the absconding accused. Mere abscondence

of accused would not be enough to sustain his

conviction. Wisdom in this regard may be derived

from case titled, “Muhammad Vs Pesham Khan

(1986 SCMR 823). Since there is no credible

evidence to support the prosecution version, so

abscondence, itself, would not be sufficient to prove

the guilt of the accused. According to golden

*M.Siraj P.S. D

18

principle of benefit of doubt, one substantial doubt

is enough for acquittal of the accused. Basically, it is

the principle enshrined in Islamic jurisprudence,

fourteen hundred years ago that “it would be better

to acquit hundred culprits than convicting one

innocent soul.” Which has now been transformed

into the form of the principle that, “acquitting by

error would be better than convicting by error”. The

said commandment has evolved into the theory of

benefit of doubt, which, invariably, is extended to

the accused for safe administration of criminal

justice. In the instant case, the prosecution evidence

is highly discrepant, full of infirmities and doubts.

The learned trial Court has not evaluated the

evidence in its true perspective thus reached to an

erroneous conclusion by holding the appellant guilty

of the offence, therefore, the impugned conviction

is not sustainable. Resultantly, this appeal was

*M.Siraj P.S. D

19

allowed. Convection and sentence of the appellant

were set aside and he was acquitted of the charge

while connected criminal revision petitions were

dismissed and similarly, appeal against acquittal of

accused Miras Khan was also dismissed.

14. These are the reasons of our short

order of even date, which is reproduced below:-

“For reasons to be record later, we

allow this appeal set-aside the

conviction and sentence of the

appellant Abdur Razaq, recorded

vide impugned judgment dated

05.04.2011, passed by learned

Additional Sessions Judge Lakki

Marwat, in case F.I.R No.258 dated

12.06.2009, registered under

sections 302/324/34 P.P.C. at Police

Station Naurang Lakki and hereby

*M.Siraj P.S. D

20

acquit him of the charge in the

aforesaid case. He be set at liberty

forthwith, if not required in any

other case. On acquittal of the

convict, connected Cr.R. No.18-

B/2011, Cr.R. No.05-B/2011, have

become infructuous, which stands

dismissed as such. Similarly, Cr.A.

No.141-B/2011, is also dismissed.

Announced.

19.06.2014

J U D G E

J U D G E

*M.Siraj P.S. D

21