*M.Siraj Afridi P.S. D 1 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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JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, · State and Mr. Astaghfirullah, Advocate, for complainant. JUDGMENT ASSADULLAH KHAN CHAMMKANI, J.- This criminal appeal calls in question
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*M.Siraj Afridi P.S. D
1
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
*M.Siraj Afridi P.S. D
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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
*M.Siraj Afridi P.S. D
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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.
*M.Siraj Afridi P.S. D
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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
*M.Siraj Afridi P.S. D
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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.
*M.Siraj Afridi P.S. D
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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.
*M.Siraj Afridi P.S. D
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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
*M.Siraj Afridi P.S. D
8
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
*M.Siraj Afridi P.S. D
9
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.
*M.Siraj Afridi P.S. D
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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
*M.Siraj Afridi P.S. D
11
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
*M.Siraj Afridi P.S. D
12
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
*M.Siraj Afridi P.S. D
13
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,
*M.Siraj Afridi P.S. D
14
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
*M.Siraj Afridi P.S. D
15
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
*M.Siraj Afridi P.S. D
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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
*M.Siraj Afridi P.S. D
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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
*M.Siraj Afridi P.S. D
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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
*M.Siraj Afridi P.S. D
19
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
*M.Siraj Afridi P.S. D
20
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
*M.Siraj Afridi P.S. D
21
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
*M.Siraj Afridi P.S. D
22
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