JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, · judgment of the learned Trial Court, therefore, are...

*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,


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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.


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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.


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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


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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


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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


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JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, · judgment of the learned Trial Court, therefore, are...

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Transcript of JUDGMENT SHEET IN THE PESHAWAR HIGH COURT, · judgment of the learned Trial Court, therefore, are...