judgment sheet in the peshawar high court, · state and mr. astaghfirullah, advocate, for...

*M.Siraj Afridi P.S. D

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr.A. No.45-P/2013

Date of hearing: 12.06.2014.

Appellant (s) : Rehmatullah by Mr. Arb.Yasir A.Khan,

Advocate.

Respondent(s) : Mr. Arshad Ahmad Khan A.A.G. for

State and Mr. Astaghfirullah, Advocate,

for complainant.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This criminal

appeal calls in question the legality and propriety of

judgment dated 17.01.2013, passed by learned

Additional Sessions Judge-I, Charsadda whereby

appellant Rehman Ullah has been awarded penalty

of death as Ta’azir under section 302 (b) PPC for

committing the murder of Tila Muhammad

deceased and to pay Rs.1,00,000/- as compensation

to his LRs in terms of section 544-A Cr.P.C.,

recoverable as arrears of land revenue, in case FIR


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No.562 dated 05.11.2010, registered under sections

302/34 PPC, at Police Station Umerzai, District

Charsadda. For confirmation of penalty of death, the

learned Trial court has sent Murder Reference

No.1-P/2013 under section 374 Cr.P.C.

2. As both, the appeal as well as Murder

Reference, are arising out of the same judgment of

the Trial court, therefore, we are going to dispose of

both through this common judgment.

3. On 05.11.2010, Sami Ullah Khan ASI

(PW.9), on receipt of information about presence of

human dead body in the graveyard, near Dar-ul-

Uloom), rushed there. Khyal Muhammad (PW.11),

present on the spot with the dead body of his father

Tila Muhammad, reported him that on the fateful

day he had been to “Dar-ul-Uloom Umarzai” for

offering Juma prayer, when he received information


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about murder of his father. He attracted to the spot

and found the dead body of his father lying in a pool

of blood, being murdered by some unknown

culprit/culprits with firearm; that they have no

enmity with any body, therefore, he charged

unknown culprit/culprits for the offence. His report

was incorporated in murasila Exh.PA/1, on the basis

of which FIR, mentioned above was registered.

4. Sami Ullah Khan ASI (PW.9), prepared

injury sheet and inquest report of the deceased and

dispatch his dead body to hospital, where Dr. Anwar

Saeed THQ hospital Tangi (PW.5) conducted

postmortem examination of the deceased and found

the following injuries on his person:-

1. Firearm entry wound of size ¼ x ¼ inch

left side face.


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2. A firearm exit wound of ½ x ½ inch on the

right side of neck.

As per opinion of the Medical Officer, the deceased

died due to firearm injury to the main carotid

arteries on the neck resulting in severe blood loss

and shock. Probable time between injury and death

has been observed to be 3 to 5 minutes while

between death and postmortem upto 2 hours

approximately.

5. During spot inspection the I.O. secured

bloodstained earth from the place of the deceased,

4 crime empties of 30 bore and sent the same to FSL

for Expert opinion. He also secured the last worn

bloodstained garments of the deceased, sent by

Medical Officer, after his autopsy. It was on

10.11.2010, when complainant recorded his

statement under section 164 Cr.P.C. wherein he


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charged appellant Rehman Ullah along with his co-

accused Kiramat and Subhan Ullah alias Khanji

(acquitted by trial court) for murder of his father and

advanced the motive that deceased had witnessed

appellant while committing theft in the house of his

uncle Mehar Zada, which information was conveyed

by the deceased to said Mehar Zada. He further

added that appellant had extended threats to his

father in his presence. Said Mehar Zada also

recorded his statement under section 164 Cr.P.C.

wherein he alleged that deceased Tila Muhammad

had informed him about commission of theft in his

house by appellant Rehman Ullah, which annoyed

the appellant with the deceased. Similarly, one Gul

Muhammad recorded his statement u/s 164 Cr.P.C.

posing himself to be the was eyewitness of the

occurrence.


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6. After arrest of all the three accused,

challan was submitted against them before the Trial

Court, where they were formally charge sheeted to

which they pleaded not guilty and claimed trial. To

bring home 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,

acquitted co-accused Kiramatullah and Subhan Ullah

alias Khan Jee, however, convicted and sentenced

appellant Rehman Ullah, as mentioned above.


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7. Learned counsel for the appellant argued

that it is a case of no eyewitness; that complainant

in his initial report has categorically stated that

having no enmity with any one he charge unknown

culprit/culprits, therefore, his belated statement

record after five days of the incident, u/s 164 Cr.P.C.

introducing therein a concocted story/motive, being

after thought without disclosing the source of

information and satisfaction qua complicity of the

appellant is not believable; PW Gul Muhammad is a

procured witness keeping his unnatural conduct,

who remained mum for sufficient days to narrate

the occurrence before the I.O. or the complainant;

that he has not identified the assailants and

identification parade conducted with delay had no

sanctity in the eye of law. He added that his

testimony also does not find corroboration from


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medial as well as circumstantial evidence; that

motive has not been proved through cogent and

tangible evidence; that the learned Trial court has

erred in law while convicting the appellant on the

same set of evidence, on the basis of which, he

acquitted co-accused, whose role was no more

different with the appellant; that prosecution

evidence is pregnant of doubts, benefit of which is

to be extended to the appellant and he be

acquitted.

8. Conversely, learned counsel for the

complainant contended that prosecution has proved

the guilt of appellant through cogent and confidence

inspiring evidence; that belated statement of the

complainant depicts his bona fide intention that he

was not interested in charging innocent persons and

when he was satisfied he charged the appellant; that


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eyewitness Gul Muhammad has furnished true

account of the incident and he has identified the

accused in identification parade; that his testimony

is supported by medical as well as circumstantial

evidence; that motive has been proved by the

prosecution by producing Mehar Zad, who is the real

uncle of appellant; that FSL reports qua

bloodstained articles and empties further

strengthen the prosecution version. He argued that

prosecution has successfully proved the guilt of the

appellant through cogent and confidence inspiring

evidence, therefore, the learned Trial court has

rightly convicted and sentenced him for the offence.

9. Learned A.A.G. while adopting the

arguments of learned counsel for the complainant

supported the impugned judgment and sought

confirmation of death sentence of the appellant.


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10. We have given our anxious consideration

to the respective arguments of learned counsel for

the parties and perused the record with their able

assistance.

11. On the face of record, it was on

05.11.2010, when Tila Muhammad was found

murdered with firearms, in graveyard near religious

school of Umar Zai, known as Dar-ul-Uloom Umar

Zai. On the same day the incident was reported by

Khial Muhammad, son of the deceased, wherein he

did not charge any body by name. On the same day

no body come forward to furnish the ocular account

of the incident. On 10.11.2010, after five days of the

occurrence, complainant recorded his statement

under section 164 Cr.P.C. wherein he charged the

appellant along with his acquitted co-accused.

Perusal of his statement u/s 164 Cr.P.C. reveals that


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he has not furnished the source of his satisfaction

about involvement of the accused/appellant. The

relevant part of his statement in this regard is

reproduced below:-

“I was searching for the accused,

now I have satisfied myself that my

father was killed by Kiramat son of

Zardar ullah, Subhan Ullah alias

Khanji, Rehman Ullah son of Kiramat

r/o Sarwar Abad Umarzai. Motive

behind the occurrence is that before

the said occurrence, accused

Rehman Ullah committed theft from

the house of his uncle, namely,

Mehar Zada, who is our neighbor.

Accused Rehman Ullah was seen by

my deceased father when he was


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jumping through the wall of Mehar

Zada after committing the

occurrence. My deceased father

narrated the whole story to Mehar

Zada, on which, the accused was

annoyed. The accused mentioned

above had also given threats to my

deceased father in my presence.

Now I charge all the accused named

above for commission of offence”.

The bare reading of statement of complainant

clearly shows that neither he has given the source of

his satisfaction about involvement of the appellant

nor has he asserted a single word about the motive

and threats in his initial report. Had there been any

such motive and threats, he could easily narrate the

same to scriber of his report, though he does not


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charge the appellant by name. During trial he was

examined as PW.11 wherein he has reiterated the

same version set forth by him in his initial report and

statement under section 164 Cr.P.C., however, in his

cross-examination he categorically admitted that

prior to the present occurrence they had no enmity

or ill will with anyone. He further admitted that they

had good terms with the accused prior to the

occurrence. He further admitted the non-

mentioning of motive in his report. Regarding

motive he deposed that for the said theft in the

house of Mehar Zada, appellant Rehman Ullah was

nominated, but the matter was patched up with said

Mehar Zada.

12. Mehar Zada, whose statement was also

recorded under section 164 Cr.P.C. wherein he

supported the motive as alleged by the complainant,


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appeared as PW.12. In his examination in chief he

stated about theft in his house by appellant Rehman

Ullah in which 2 ½ tolas gold ornaments and

Rs.40,000/- were allegedly stolen away. He deposed

that by disclosing the name of appellant before him

by the deceased, appellant was annoyed with the

deceased. But in cross examination he deposed that

regarding the said theft he had not lodged any

report in Police Station, which does not appeal to a

prudent mind. He deposed that the matter was

resolved by Jirga members, but he does not

remember about his signature or thumb impression

on any Jirga verdict to this effect. On the basis of

statements of both the aforesaid witnesses the

prosecution has failed to prove the alleged motive.

No jirga verdict in black & white has been

produced/exhibited during trial. No alleged Jirga


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member has been examined before the court or by

the I.O. during investigation, who allegedly resolved

the matter of theft between the deceased and the

deceased. No doubt, motive is not required to be

proved in each and every case, but once it has been

set up by the prosecution, non-proof of the same

would be fatal for the prosecution. In the instant

case, the prosecution ought to have proved the

same because the complicity of the appellant has

been made for murder of the deceased entirely on

the said motive, but the prosecution failed to prove

the same, which would definitely be fatal for its

case.

13. The entire case of the prosecution hinges

upon the testimony of one Gul Muhammad, who

later on, introduced himself to be the eyewitness of

the occurrence and his statement was recorded


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under section 164 Cr.P.C. on 23.11.2010 i.e. after

seventeen days of the occurrence. In his said

statement he has charged three un-known accused

for committing murder of the deceased in his

presence with firearms and deposed that he could

identify them, if brought before him. We would like

to reproduce his statement for convenience:-

“Stated that, on the day of

occurrence, I, had come to my

relative’s home, in village Sarwar

Abad Umarzai. I was going to

perform Juma prayer. When I

reached graveyard near Dar ul

Uloom Umarzai, three duly armed

persons came and made firing on

one person and he died on the spot.

The occurrence was seen by many


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people available at the relevant

time. Later on, I came to know that

the name of deceased was Tila

Muhammad son of Faiz Muhammad

r/o Sarwar Abad Umarzai. I had seen

the accused at that time but I was

not familiar with their names. After

the occurrence, I went to my home.

But my conscience did not leave me

with calm and patient. Therefore, I

visited Police Station Umarzai and

narrated the whole story to them.

The local police of Police Station

Umarzai had arrested two accused

in the case. And I correctly identified

the arrested accused in Sub-Jail

Charsadda in identification parade in


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the presence of Illaqa Judicial

Magistrate. The names of the

accused are Kiramatullah s/o Zard

Ullah and Farman Ullah alias Kanji

son of Kiramat r/o Sarwar Abad. I

correctly identified them and they

are the persons who killed Tila

Muhammad. The accused were also

accompanied with another person, if

he is brought before me, I can

identify him. Today I recorded my

statement with my sweet will and

there is no pressure upon me”.

Thorough perusal of statement of Gul Muhammad

referred to above reveals that he has disclosed

about three duly armed persons, but in last of his

statement while specifically naming the acquitted


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co-accused, deposed that those were the accused,

who committed the murder of the deceased. The

belated alleged ocular account of PW Gul

Muhammad does not find corroboration from

medical evidence as well as circumstantial evidence

in the shape of recovery of crime empties from the

spot. He has attributed general role of firing to all

the three accused whereas according to autopsy

report of the deceased, there was only single entry

wound with exist, which does not commensurate

with the number of the accused. On the same set of

evidence, two co-accused who had been attributed

the same role as given to the appellant have been

acquitted by learned Trial Court, against which

neither the complainant nor the State has filed any

appeal. There is no shred of evidence to distinguish

the role of the appellant/convict from that the of


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acquitted co-accused. The identification parade

admittedly having been held without observing

necessary formalities had no sanctity and

identification of accused without description of their

roles in the occurrence would lose its efficacy. In his

statement under section 164 Cr.P.C. PW Gul

Muhammad has not stated a single word about the

features, texture and other details of the accused.

Moreover, identification test being a corroborative

piece of evidence cannot form basis for conviction

when substantive evidence stood discarded.

14. In the instant case the statement of PW

GulMuhamamd is discrepant and pregnant with

serious infirmities which cannot be relied upon and

made basis of conviction of accused in absence of

strong corroborative evidence which is lacking in the

case. As regard recovery of pistol and matching of


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crime empty with the same, being corroborative

piece of evidence would not be sufficient by itself to

prove commission of murder by the appellant in

absence of substantive evidence. In view of the

peculiar facts and circumstances of the case, it can

be safely concluded that the occurrence is unseen

while the corroborative evidence is so weak,

untrustworthy that it cannot remove inherent

defects in prosecution story.

15. From whatever angle the prosecution

evidence is looked at, it does not inspire confidence

and as such the charge against the appellant cannot

be held to have been proved beyond any shadow of

reasonable doubt. There being no satisfactory basis

for upholding the conviction and sentence of the

appellants, we allow this appeal, set-aside the

conviction and sentence of the appellant recorded


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by the trial Court vide impugned judgment and here

by acquit him of the charge. He be set at liberty

forthwith if not required in any other case. Death

sentence awarded to the appellant is not confirmed.

Resultantly, Murder Reference is answered in the

negative.

16. We had, by our short order dated

12.06.2004, allowed this appeal and acquitted the

appellant for reasons to be recorded later. Above

are the detailed reasons of our short order, read as

under:-

“For reasons to be recorded later on,

this appeal is allowed. The conviction

and sentence of the appellant,

Rehmanullah, awarded to him in case

F.I.R No.562 dated 05.11.2010 under

sections302/34 P.P.C., Police Station

Umarzai, Charsadda by learned

Additional Sessions Judge-I, Charsadda


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vide judgment dated 17.01.2013, are

set aside and he is acquitted of all the

charges levelled against him. He be

released from jail forthwith, if not

required in any other case. The

Murder Reference sent by the learned

Trial Judge is answered in negative”.

Announced.

12.06.2014

J U D G E

J U D G E


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judgment sheet in the peshawar high court, · state and mr. astaghfirullah, advocate, for...

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