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*M.Siraj Afridi P.S. D
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JUDGMENT SHEET
IN THE PESHAWAR HIGH COURT, PESHAWAR
(Judicial Department)
Cr.A. No.367-P/2013
Date of hearing: 29.01.2015
Date of Announcement: 12.02.2015
Appellant (s) : Malang Shah by Barrister M. Zahoor ul Haq. Respondent (s) : Muthair Shah alias Tahir Shah by Mr. Nisar Khan, Advocateand the State by Mian Arshad Jan AAG.
JUDGMENT
ASSADULLAH KHAN CHAMMKANI, J.- At a trial held
by learned Additional Sessions Judge Shabqadar Camp Court
Tangi, Charsadda, appellant Malang Shah was found guilty of
various offences, thus, vide judgment dated 20.02.2014, he
was convicted and sentenced as under:-
Under Section 302 PPC:- Penalty of death
on two counts for the murder of Mst. Bushra
and Umar Khan deceased. To be hanged by
neck till he is declared dead and to pay
Rs.1,00,000/- as compensation in terms of
S.544-A Cr.P.C. to LRs of each deceased or in
default thereof to undergo 06 months S.I.
further.
Under Section 324 PPC:- To undergo 05
years simple imprisonment on two counts for
attempting at the lives of complainant and
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PW and Mutawasil Shah and to pay a fine of
Rs.50,000/- to each injured or in default
thereof to undergo 04 months S.I. further.
Under section 337-F(v):- To pay Daman
amounting to Rs.50,000/- to injured Mutahir
Shah and to suffer two years S.I. as Ta’zir.
Under Section 337-F (iii) PPC:- To pay
Daman amounting to Rs.50,000/- and to
suffer 02 years S.I. as Ta’zir.
The sentences have been directed to run
concurrently and benefit of S.382-B Cr.P.C.
has been extended to the appellant-convict.
2. Being aggrieved from his conviction and
sentences, appellant-convict Malang Shah, has preferred the
instant criminal appeal, while the learned Trial Court has sent
Murder Reference No.10-P/2013, in terms of Section
374 Cr.P.C. for confirmation of death sentence of the
appellant-convict. As both are stemming out of the same
judgment of the learned Trial Court, therefore, are going to
be disposed of through this common judgment.
3. The prosecution case as enumerated in First
Information Report is that on 13.07.2009, complainant Tahir
Shah (PW.8), in injured condition, reported to local police in
RHC, Jamal Abad, that on the fateful day he was on his way
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to house from his shop and at 12.00 noon, when he reached
near his house, Malang Shah (appellant-convict herein) along
with his brother Niazbin Shah (absconding co-accused), duly
armed with firearms, emerged there and started
arguments/altercation with him; that on commotion, his
father Umar Khan deceased, brothers Mutawasil Shah
(PW.11), Akhtar Shah, Hanif Shah (abandoned) and sister
Mst. Bushra, came out of the house. In the meantime, both
the accused, opened indiscriminate firing at them with
intention to commit their Qatl-e-Amd, resultantly, his father
Umar Khan and sister Mst. Bushra got hit and died on the
spot while he, his brothers Hanif Shah and Mutawasil Shah
sustained firearm injuries, whereas his other brother Akhtar
Shah, luckily remained unscathed. Motive behind the
occurrence is stated to be a dispute over a house. In addition
to complainant, the occurrence is stated to have been
witnessed by PWs Akhtar Shah, Mutawasil Shah and Hanif
Shah. Report of complainant was reduced into writing in the
shape of murasila Exh.PA/1 by Muhammad Anwar Khan SI,
on the basis of which, FIR No.289 dated 13.07.2009 was
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registered under sections 302/324/34 PPC at Police Station
Mandani District Charsadda. Muhammad Anwar Khan SI
(PW.4) prepared injury sheet of injured Tahir Shah, Hanif
Shah and Mutawasil Shah Exh.PW.4/1 to Exh.PW.4/3. He also
prepared injury sheets and inquest reports of deceased
Mst. Bushra and Umar Khan deceased Exh.Pw.4/4 to
Exh.PW.4/7, shifted their dead bodies to the mortuary for
autopsy under the escort of Constable Ikram Ullah and
referred the injured for medical examination.
Lady Dr. Afshan Shafiq (PW.1) conducted
autopsy on the dead body of Mst. Bushra
deceased on 13.07.2009 at 2.00 p.m and
found the following:-
1. Firearm entry wound 1x 5 cm x 1x 5 cm
on left side of chest posterially at
medial border of left scapula.
2. Firearm exit wound 4 x 4 cm interially on
the left side of chest below the medial
(1/3rd of clavicle).
Opinion: According to her opinion, the
deceased died due to cardio respiratory
arrest because of damage to her vital organs
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i.e. heart, lungs and major blood vessels,
caused by firearm.
Probable time between injury and death
has been observed by her as “10 minutes”
and between death and postmortem as “½
hours”.
Dr. Muhammad Riaz (PW.2) conducted
postmortem examination on the dead body of
deceased Umar Khan on 13.7.2009 at 1.30
p.m. and found the following injuries on his
person:-
1. Firearm entry wound 1x 5 cm x 1 x 5 cm
on the back toward left side of left
scapula with fracture left scapula.
2. Firearm exit wound No.1 intero lateral
wall of left side of chest below left
axilla 3 x 3 cm in size.
3. Firearm entry wound on the posterial
aspect of right thigh 1x5 cm x 1 x
5 cm in size.
4. Firearm exit wound (of wound NO.3) on
intero medial aspect size 2x 5, 2x 5
cm.
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Opinion: According to opinion of the Medical
Officer, the deceased died due to cardio
respiratory arrest because of damage to his
heart, lungs and major blood vessels caused
by firearm.
Probable time between injury and death
has been given as “about 10 minutes” and
between death and postmortem as “one
hour”.
On the same day he also examined injured
Hanif Shah and found the following injury on
his person:-
A firearm crush wound on left face and
neck with loss of muscle and skin. After
administering first aid, the patient was
referred to LRH Peshawar.
Kind of weapon: Firearm
Nature. Grievous.
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The said Medical Officer also examined
injured Mutawasil Shah and found the
following on his person:-
1. A firearm entry wound on right thigh
intero lateral aspect.
2. A firearm entry wound on the right
buttock.
After administering first aid, patient was
referred to LRH, Peshawar.
On the same day Dr. Muhammad Riaz (PW.2)
examined injured Mutahir Shah and found
the following:-
1. Firearm entry wound below left scapula.
2. Firearm exit wound on left shoulder.
After first aid, the patient was referred to
LRH, Peshawar. The nature of injury was
found grievous.
4. Said Rahim Khan S.I. (PW.12) conducted
investigation in the case. After registration of the case, he
proceeded to the spot and prepared site plan Exh.PB on the
pointation of eyewitness Akhtar Ali. During spot inspection, he
secured bloodstained earth from the places of injured and
deceased, two crime empties of 7.62 bore and single empty of
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30 bore pistol, vide recovery memo Exh.PW.10/1, recorded
statements of the PWs under section 161 Cr.P.C. Vide
recovery memo Exh.PW.12/2, he took into possession the
bloodstained last worn clothes of the two deceased as well as
injured. As the accused were avoiding their lawful arrest,
therefore, he initiated proceedings under sections 204 and 87
Cr.P.C. against them vide applications Exh.PW.12/3 and
Exh.PW.12/4, sent the bloodstained articles to the FSL for
Serologist opinion vide application Exh.PW.12/5, report
whereof is Exh.PW.12/6. On completion of investigation,
challan in terms of S.512 Cr.P.C. was submitted against the
accused.
5. Saifullah Anjum ASHO (PW.6) arrested appellant
Malang Shah, who was already arrested by local police of
Takht Bhai in case FIR No.737 dated 25.12.2010 under section
381-A PPC, FIR No.13 dated 06.01.2011 under section
457/380 PPC and FIR No.39 dated 19.01.2011 under section
381-A PPC. He after fulfilling all legal formalities requisitioned
the appellant from District Jail Mardan through Zamima Bey.
The appellant was interrogated by him and after completion of
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necessary investigation, Noor Elahi Khan SI (PW.13)
submitted supplementary challan against him before the
learned Trial Court, where he was formally charge sheeted to
which he pleaded not guilty and claimed trial. To prove its
case, prosecution examined as many as thirteen 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 or
to produce evidence in defence. On conclusion of trial, the
learned Trial Court, after hearing both the sides, convicted
and sentenced the appellant, as mentioned above.
6. Learned counsel for the appellant argued that
appellant is quite innocent and has been implicated falsely;
that confirmatory evidence i.e. autopsy reports of the two
deceased and medico legal reports of the injured, does not
support the ocular account, albeit, furnished by injured
witnesses, namely, Mutahir Shah and Mutawasil Shah, as
keeping in view the dimension of injuries on the persons of
the deceased and injured, the incident seems to be the doing
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of single person, but the charge has been exaggerated; that
prosecution has miserably failed to prove that single person to
be the appellant; that similarly, recovery of 2 empties of 7.62
bore and single empty of 30 bore pistol, in light of allegations
of indiscriminate firing by two persons, does not corroborate
the ocular account because in such eventualities more empties
should have been recovered from the spot and much damage
should have been caused to the complainant party, but
contrary to it, a single injury has been found on the person of
each injured including deceased Mst. Bushra while two firearm
injuries have been found on the person of deceased Umar
Khan; that neither any spent bullet has been recovered from
the spot nor any bullet marks have been noticed by the I.O.
during spot inspection which negates the prosecution version;
that PWs Akhtar Ali alias Akhtar Shah and Hanif Shah, have
been abandoned by the prosecution for no good reason which
amounts to withholding of best available evidence and in the
circumstances, adverse inference within the meaning of Article
129-G of the Qanun-e-Shahadat Order, 1984, would be drawn
against the prosecution; that in the initial report general role
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of firing has been attributed to two accused, but later on,
during preparation of site plan, abandoned PW Akhtar Ali
assigned specific role to each accused, which amounts to
dishonest improvement and the learned Trial Court while
considering and relying his statement recorded under section
161 Cr.P.C., has committed gross illegality as statement under
section 161 Cr.P.C. is not a substantive piece of evidence; that
statement of a witness under section 161 Cr.P.C. is
inadmissible evidence the object of which is only to confront
the said witness with his statement for the purpose of
contradiction; that on one hand the motive alleged, has no
concern with the appellant, as the civil proceedings on the
disputed house, were inter-se deceased Umar Khan and
absconding co-accused Niazbin Shah since 2007, while on the
other hand, the parties being residing in the same Mohallah
having their houses adjacent to each, suggests that there was
no previous enmity between them; that had there any
intention of the appellant to do the complainant party away on
the basis of said motive, then why he kept mum since 2007
i.e. the year of the civil proceedings till 2009 i.e. the year of
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incident; that peculiar facts and circumstances of the case
suggests that PWs have amalgamated the truth and false thus
have not come forward with clean hands, therefore, failed to
prove the incident in the mode and manner as alleged by the
prosecution; that the occurrence does not seem to be a pre-
planned rather the result of sudden flare up between the
assailant and the complainant party and who was that
assailant is shrouded in mystery; that documents of the suits
qua the alleged motive, placed on file on the application of the
complainant party have neither been exhibited during trial nor
the appellant has been provided an opportunity of cross
examination over the same, therefore, it would not advance
the case of the prosecution; besides, the appellant has not
been confronted with these documents in his statement under
section 342 Cr.P.C. and any piece of evidence not put to the
accused in statement u/s 342 Cr.P.C. cannot be considered
against him; that prosecution evidence is suffering from
material contradictions, discrepancies and is pregnant with
doubts, benefit of which is to be extended to the appellant not
as matter of grace or concession but as a matter of right.
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7. Conversely, learned AAG assisted by learned
counsel for the complainant contended that appellant is
directly charged alongwith absconding co-accused Niazbin
Shah (his brother) for the incident in a promptly lodged
report, eliminating the possibility of consultation and
fabrication; that in the incident two persons have been done
to death while three have been injured by attempting at their
lives; that being a broad daylight occurrence and parties
closely related to each other, question of mistaken identity
does not arise; that there was a civil suit over a house
between the parties which was decreed by two courts below
in favour of the complainant party, which culminated in to the
present incident, in support whereof record has been brought
on record on the application of complainant party, not
objected by the defence, therefore, motive has been
successfully proved; that having stamp of injuries on their
persons, the presence of PWs Mutahir Shah and Mutawasil
Shah cannot be denied, who both have charged the appellant
and absconding co-accused; that both have furnished the true
account of the incident and have corroborated each other on
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all material aspects of the incident while the defence
miserably failed to create any dent in their testimony; that
ocular account is supported by medical evidence coupled with
recovery of bloodstained earth from the spot, bloodstained
garments of the deceased as well as injured, positive
Serologist report and noticeable unexplained abscondance of
the appellant; that it is not the quantity of evidence to be
considered rather the quality and conviction can be recorded
even in a capital charge on the basis of solitary statement of a
witness; that prosecution has examined two injured witnesses
in support of its case, therefore, non-examination of PWs
Akhtar Shah and Hanif Shah, would not damage the
prosecution case; that statement of Akhtar Shah, has been
exhibited by the defence in the statement of the I.O.,
meaning thereby that the defence is relying on his statement,
therefore, the same has rightly been taken into consideration
and believed by the learned Trial Court; that in case of direct
evidence of unimpeachable character like the one in case in
hand, mere non-recovery of much number of empties from
the spot, which otherwise is a corroborative piece of evidence,
*M.Siraj Afridi P.S. D
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would also not damage the prosecution case; that though
from the tenor of cross-examination of PWs, the defence has
tried to shift the incident towards the absconding co-accused,
but no such specific plea has ever been alleged by the
appellant nor any shred of evidence whatsoever has been
brought on record to prove the incident to be the doing of
absconding co-accused. They lastly contended that
prosecution has successfully brought home the guilt of the
appellant through cogent and confidence inspiring evidence
and there being no mitigating circumstance, the learned trial
Court by holding the appellant guilty of the offence was
justified by awarding him the maximum punishment of death.
They sought dismissal of the appeal and requested for
confirmation of sentence of the appellant.
8. We have heard the exhaustive arguments of
learned counsel for the parties and learned AAG for the State
and perused the record with their valuable assistance.
9. It appears from the record, particularly, from the
statement of appellant under section 342 Cr.P.C. that
appellant has not denied relationship of absconding
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co-accused Niazbin Shah to be his real brother and injured
PWs Mutahir Shah and Mutawasil Shah, as well as injured
Hanif Shah and Akhtar Shah (abandoned PWs) to be his real
nephews. Houses of both the parties situate in one and the
same street, adjacent to each other. This untoward incident
took place in front of their houses on a thoroughfare of village
Sheikhano Bari Band, leading towards village Khair Gul Khel
Kale Charsadda at 12.00 noon, which has been reported with
promptitude at 12.45 p.m. i.e. within 45 minutes, eliminating
the possibility of consultation, deliberation and concoction.
Being a broad day light incident and parties close relative
inter-se i.e. the appellant maternal uncle of the complainant,
question of any mistaken identity does not arise. Besides, it
does not appeal to prudent mind that nephews will charge
their innocent real maternal uncles letting off the actual
culprits. In support of his version, complainant Mutahir Shah
alias Tahir Shah appeared as PW.8. In his examination in chief
he reiterated the same facts as set forth by him in his initial
report. He deposed that on the fateful day, he after closing his
shop was on his way to his house; that when he reached near
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his house he confronted with the appellant and his brother
absconding co-accused Naizbin Shah, who started
altercation/arguments with him, on which inmates of his
house i.e. his father Umar Khan deceased, brothers Akhtar
Shah, Hanif Shah and Mutawsil Shah including his sister Mst.
Bushra deceased, came out of the house and the accused
initiated incident. As the altercation was in front of the house
of the complainant, therefore, on commotion, attraction of
inmates of house of the complainant including his sister Mst.
Bushra, to the spot was natural, which does appeal to mind,
as she being the niece of the accused, having no formalities of
“pardha” with them, also reached there. Moreso, in village life,
in such altercation between relatives, the women folk of their
houses also attract as having no limit of Pardha with each
other. Had there been altercation inter-se the complainant and
some strangers, the lady deceased would have not attracted
there nor his brothers would have allowed her to go out of the
house. This aspect of the case further substantiates the
version of the complainant.
*M.Siraj Afridi P.S. D
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10. Other injured prosecution witness Mutawasil Shah
appeared as PW.11 and supported the version of the
complainant. He deposed that on the day of occurrence he
along with his father Umar Khan deceased and brothers Hanif
Shah, Akhtar Shah and sisters Mst. Bushra was present in
their house. In the meanwhile, they heard commotion outside
the house, on which they attracted to the spot and noticed
appellant Malang Shah and Niazbin Shah, their maternal
uncles in altercation with their brother Mutahir Shah alias
Tahir Shah complainant, who on seeing them, opened fire at
them, as a result he, Mutahir Shah, Hanif Shah, Umar Khan
and Mst. Bushra got hit; that his father Umar Khan and sister
Mst. Bushra died on the spot while PW Akhtar Shah luckily
escaped unhurt. He advanced the same motive as alleged by
the complainant i.e. a dispute over a house and pendency of
civil proceedings qua the same.
11. Both these injured eyewitnesses have been
subjected to taxing and comb searching cross-examination by
the defence, but nothing beneficial to defence could be
extracted from them. They remained stuck on their stance and
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supported each other on each and every material aspects of
the incident. In their cross-examination, the defence has tried
to prove the incident to be the doing of single accused and to
shift that burden towards the absconding co-accused by
putting certain suggestions, but failed. From the very first day
till their statements before the court, both the PWs are
charging the two accused for the occurrence. Their testimony
get corroboration from medical evidence in shape of autopsy
reports of the deceased and medico legal reports of the
injured coupled with the statements of Medical Officers. The
unnatural death of the two deceased with firearms further
substantiates the ocular account. Similarly, recovery of
bloodstained earth from the places of the deceased and
injured coupled with their bloodstained garments and positive
Serologist report, confirms/establishes the crime venue as
alleged by the prosecution.
12. So far as recovery of less number of crime empties
from the spot is concerned, suffice it to say that the place of
occurrence is a general thoroughfare. It is not the case of the
prosecution that the complainant party remained there and
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nobody interfered with the spot. As huge loss in the shape of
two deceased and three injured had been caused in the
incident to the complainant party and soon after the incident,
they shifted to the hospital, therefore, it does appeal to mind
that somebody might have removed some empties from the
spot, without sensing their evidentiary value. In the case in
hand, the ocular/direct evidence furnished by injured
eyewitnesses as discussed above, is trustworthy and
confidence inspiring, therefore, in such circumstances, there
would hardly be signification of corroboration, as per the
dictum laid down by the apex court in case titled,
“ Muhammad Ehsan Vs the State” (2006 SCMR 1857),
“that if the court is satisfied about the truthfulness of direct
evidence available on record, requirement of corroboration is
not of much significance”.
13. The arguments of the learned counsel for the
appellant that adverse inference is to be drawn against the
prosecution because of non-production of rest of the
eyewitnesses named in the FIR i.e. Hanif Shah and Akhtar
Shah, is unpersuasive, as in criminal cases, what is more
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essential to be observed by the courts, is the veracity and
credibility of the witnesses and not their numbers and
relationship, because it is quality and not the quantity of the
evidence which matters. In the instant case two injured
eyewitnesses have been examined. By virtue of Article 17 of
the Qanun-e-Shahadat Order, 1984, in financial matters, two
male or one male and two female witnesses, have been made
the requirement of law to prove the financial obligations.
Whereas in all other matters including criminal, there is no
such obligation, which clearly suggest that a single witness is
sufficient to prove a fact. When the law permits a fact to be
proved through the statement of a single witness, there is no
reason or logic to call for more witnesses than one. The
Hon’ble Supreme Court in Zar Badadar’s case (1978
SCMR 136), has dealt with the same proposition in the
following words:-
“We are also aware, and learned counsel place
great stress on it that according to the two
eyewitnesses, Mohammad Sher was with them
and that the other persons in the hotel
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including its proprietor had seen the murder.
Mr. Enayat Elahi, therefore, submitted that the
courts had erred in law in not drawing an
adverse inference against the prosecution for
not examining these other witnesses. The
submission is not correct because the
prosecution is not required to examine every
eyewitness of a crime. The only question if
whether the evidence of the witnesses is
sufficient to prove the prosecution version of
the crime and both the courts have held that
the evidence of PWs Akbar and Roidad were
sufficient to prove the petitioner’s guilt as we
indicated this finding is supported by evidence,
therefore, nothing turns on the fact that the
prosecution did not examine every possible
eyewitness of the murder. Additionally, as
pointed out by the courts, the ocular evidence
receives support from the evidence for the
motive of the crime and from the petitioner’s
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abscondance because the abscondance was for
a long period”.
Same view has been reiterated by the apex court in case
titled, “Muhammad Ahmad and another Vs the State
and others”(1997 SCMR 89), that “prosecution is not
required to examine every eyewitness of a crime”.
14. In case titled, Muhammad Mansha Vs the
State” (2001 SCMR 199), the Ho’ble Supreme Court while
dilating upon the spirit of Article 17 of the Qanun-e-Shahadat
Order, 1984, held the following:-
“A bare perusal would reveal that the
language as employed in the said Article 17
(1) (b) is free from any ambiguity and no
scholarly interpretation is required. The
provisions as reproduced hereinabove of the
said Article would make it abundant clear that
particular number of witnesses shall not be
required for the proof of any fact meaning
thereby that a fact can be proved only by a
single witness”.
In the Judgment Supra in Para No.7, the apex Court held that
conviction can be recorded on the testimony of a single
witness in the following words:-
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“Even as the guilt of an accused person may
be proved by the testimony of a single
witness, the innocence of an accused person
may be established on the testimony of a
single witness, even though considerable
number of witnesses may be forthcoming to
testify to the truth of the case for the
prosecution. The Court is concerned with the
quality and not with the quantity of the
evidence necessary for proving or disproving a
fact. (Principles and Digest of the law of
Evidence by M.Monir page 1458).
The Hon’ble Supreme Court in the judgment Supra while
referring to C.D. Field on the law of Evidence (Page 4746)
reproduced the following:-
“Thus evidence of a single witness is sufficient
to sustain and may legally be made the sole
basis for a conviction, the relevant section 134
having enshrined the well-recognized maxim
that ‘evidence has to be weighed and not
counted’. Through the Legislature has placed
no jurisdictional limitation on the power of a
Judge to act on the sole testimony of a single
witness, even though uncorroborated, the
Judges themselves have from time to time
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evolved some rules and guidelines of
circumspection as to when such evidence can
be or cannot be acted upon without
corroboration.(Pema Dukpa v State Sikkim.
1981 Cr. LJ 276).
Reference in this regard can also be made to case titled,
“Dildar Hussain Vs Muhammad Afzaal alias Chala and 3
others” (PLD 2004 Supreme Court 663), and case
titled, “Farooq Khan Vs the State” (2008 SCMR 917).
Deriving wisdom from the judgments of the apex court
(Supra), non-examination of remaining eyewitnesses, namely,
Hanif Shah and Akhtar Shah, by the prosecution would not
damage the prosecution case.
15. It is borne out from the record that soon after
the incident, appellant/accused went into hiding and remained
fugitive from law for considerable long period, for which he
has not furnished any plausible explanation. Proceedings
under sections 204 and 87 Cr.P.C. had been initiated and
completed against him. The unexplained disappearance of the
appellant from the ordinary place of residence immediately
after the occurrence, knowing that the deceased were none
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else but their nephews, tantamounts to deliberate absconsion
with guilty mind, therefore, it would be another circumstance
to establish his culpability.
16. For what has been discussed above, we have
reached to an irresistible conclusion that prosecution has
proved the guilt of the appellant up to the hilt through cogent
and confidence inspiring evidence and the learned Trial Court
has rightly held him guilty of the offence.
17. Now the moot question before us would be the
quantum of the sentence to be awarded to the appellant to
meet the ends of justice. We are not in agreement with the
learned Trial Court on the point of proof of motive because it
appears from the record that the civil suit regarding disputed
house was inter-se the deceased and the absconding
co-accused Niazbin Shah, which was filed in the year 2007,
but despite that the parties were living in the same Mohallah
having adjacent houses, which means that their relationship
were not so strained to prompt the appellant for such
untoward incident. The occurrence seems to be the result of
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sudden flare up during altercation/arguments without any
premeditation. Besides, general role of firing has been
attributed to the appellant and absconding co-accused. It is
not certain from the evidence that whose fire shots proved
fatal. The learned Trial Court while taking the statement of
abandon PW Akhtar Shah, recorded under section 161 Cr.P.C.
to the extent of specification of role of each accused, has
committed illegality as statement recorded under section 161
Cr.P.C. is not a substantial piece of evidence, which can only
be used for the purpose of contradiction so as to bring out the
truthfulness of a witness. Statement recorded under section
161 Cr.P.C. is otherwise inadmissible evidence. Such
statement can be used for limited purpose of contradicting a
witness at the trial. Statement under section 161 Cr.P.C. of a
person who is not produced cannot be considered as a
substantive piece of evidence. Thus, taking into consideration
the sudden flare-up between the parties, non-specification of
effective role to any of the two accused, as mitigating
circumstance, the learned Trial Court ought not to have
awarded the maximum penalty of death.
*M.Siraj Afridi P.S. D
28
18. Resultantly, conviction of the appellant recorded
by the learned Trial Court in all the offences is maintained,
however, we while modifying his sentence under section 302
(b) PPC, reduce the same from maximum penalty of death to
imprisonment of life. His remaining sentence under section
302 (b) PPC i.e. payment of compensation and sentence in
default thereof shall remain intact. Similarly, his conviction
and sentences in other offences are also maintained. All the
sentences shall run concurrently. Benefit of S.382-B Cr.P.C. is
also extended in favour of the appellant-convict. With the
above modification in the sentence of the appellant, this
appeal is disposed of accordingly.
19. In view of the above, Murder Reference
No.10-P/2013, sent by the learned Trial Court in terms of
Section 374 Cr.P.C. for confirmation of death sentence of the
appellant-convict, is answered in Negative.
Announced.
12.02.2015
J U D G E
J U D G E
*M.Siraj Afridi P.S. D
29
*M.Siraj Afridi P.S. D
30
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
*M.Siraj Afridi P.S. D
31
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
*M.Siraj Afridi P.S. D
32