Faiz-ul-Haq Versus State
Muhammad Aamir Nawaz Rana, J .--- By this common judgment, Criminal Appeal No.26 of 2025 and Criminal Revision Petition No.01 of 2025 are being adjudicated together, as both matters arise out of and are directed against the judgment dated 03.02.2025 rendered by the learned Sessions Judge, Pishin. Through the impugned judgment, the trial Court, upon conclusion of a full-fledged trial, convicted the appellant/accused and sentenced him to imprisonment for life. The appellant/accused has challenged his conviction and sentence by filing the aforesaid criminal appeal under Sections 410 of the Code of Criminal Procedure ( Cr.P.C ), whereas the complainant has instituted the connected criminal revision petition under Sections 435 and 439, Cr.P.C., seeking enhancement of the sentence from life imprisonment to capital punishment.
SUMMARY OF FACTS:
2. On 15.01.2024, the complainant submitted a written report (Exh/1-A) to the SHO, Police Station Pishin, stating therein that he is engaged in agricultural work. According to the complainant, on the day of the incident, he, along with his sons Shoaib Khan and Ajab Khan, his brother Mohibullah, and his nephew Muhammad Younas, had gone to the mosque for the Isha prayer. After offering the prayer, all of them proceeded towards their homes, Shoaib and Ajab were walking ahead of the rest. At approximately 8:00 p.m., at a short distance ahead, he saw the appellant/accused, Faiz-ul-Haq son of Noor-ul-Haq, along with another unknown person, intercepting Shoaib and Ajab on the way and assaulting them with a knife. The appellant/accused, Faiz-ul-Haq, stabbed Shoaib Khan on the left side of the chest, and when Ajab Khan attempted to rescue Shoaib, the appellant/accused, Faiz-ul-Haq, attacked him with a knife and injured him on the left arm, below the shoulder. The other unknown accused assaulted them with kicks and fists. According to the complainant, when he, along with his brother Mohibullah and nephew Muhammad Younas, reached at the spot, the accused persons, Faiz-ul-Haq and his unknown companion, issued serious threats, used abusive language, and fled from the scene on a motorcycle. The complainant further stated that Shoaib Khan had fallen to the ground, covered in blood, and had succumbed to injuries on the spot. Per complainant, arrangements were made to shift the deceased to Civil Hospital, Pishin. Consequently, FIR No.05/2024, dated 15.01.2024, under Sections 302, 324, 341, 504, 506(ii), and 34 P.P.C (Exh/12-A) was lodged at Police Station Saddar, District Pishin.
INVESTIGATION:
3. The investigation of the case was entrusted to PW-12, Muhammad Sadiq, Sub-Inspector, Police Station Sadar, Pishin. He went to Civil Hospital, Pishin, where he conducted inquest proceedings under Section 174, Cr.P.C, and recorded the statement of the injured, Ajab Khan, under Section 161, Cr.P.C. For further proceedings, he took the dead body of the deceased, Shoaib Khan, to Civil Hospital, Quetta, and upon the complainant s refusal to permit post-mortem examination, he handed over the dead body to the complainant. Thereafter, he proceeded to the place of occurrence, prepared the site sketch on the pointation of the complainant, and recorded the statements under Section 161, Cr.P.C., of the eye-witnesses of the incident, Mohibullah and Muhammad Younas. He also recorded the statements, under Section 161, Cr.P.C., of the witnesses to the preparation of the site sketch. The blood-stained soil and the crime weapon (a knife) were taken into possession through seizure memos and, in respect thereof, parcel Nos. 1 and 2 were prepared. He recorded the statements under Section 161, Cr.P.C., of the witnesses to the seizure memos and prepared a list of the legal heirs. On 15.01.2024, he obtained the medical certificate of the injured, Ajab Khan. On 16.01.2024, the accused was arrested and his personal search memo. was prepared. On 17.01.2024, the remand of the appellant/ accused was obtained from the competent Court. On 20.01.2024, the complainant handed over the blood-stained clothes of the injured as well as the deceased, which were taken into custody through recovery memos and, in respect thereof, parcel Nos. 3 and 4 were prepared. He also recorded the statements under Section 161, Cr.P.C., of the witnesses to the recovery memos. Thereafter, parcel Nos. 1 to 4 were sent for forensic analysis to the Crimes Branch, Balochistan, Quetta. On 25.01.2024, he obtained drafted sketch of the site from the concerned Halqa Patwari. On 26.01.2024, he obtained the death certificate of the deceased, Shoaib Khan, from Civil Hospital, Quetta. On 30.01.2024, the accused was sent to Judicial Sub-Jail, Pishin, and the case file, for the purpose of submitting the challan, was handed over to IP/SHO Rozi Khan, who prepared the challan and submitted it before the Court. After receipt of the FSL report, the case file, for the purpose of preparing a further challan, was handed over to SI/SHO Rahmatullah, who prepared the challan and submitted it before the Court. On 15.08.2024, the photographs of deceased Shoaib Khan were taken into possession through recovery memos; the statements under Section 161, Cr.P.C., of the witnesses to the said recovery memos were recorded; and the case file, for the purpose of preparing the challan, was handed over to IP/SHO Muhammad Asif, who prepared the challan and submitted it before the Court.
TRIAL:
4. In order to substantiate the charge, the prosecution produced twelve (12) witnesses at trial, including the Investigating Officer. PW-1, Amir Ullah, is the complainant, as well as the father of deceased Shoaib Khan and injured Ajab Khan; he also appeared as an eye-witness of the occurrence. PW-2, Mohibullah, is another eye-witness of the incident. PW-3, Ajab Khan, is the injured witness and deposed regarding the injuries sustained by him during the incident. PW-4, Muhammad Younas, is similarly an eye-witness of the occurrence. PW-5, ASI Zain-ud-Din, is the witness to the preparation of the site sketch (Exh/5-A). PW-6, ASI Abdul Qadeer, is the marginal witness to the seizure memo. of blood-stained soil and the alleged crime weapon, i.e. a knife (Exh/6-A). He produced sealed parcel No.1 of blood-stained soil as Art.P/1, the sample seal as Art.P/2, and the blood-stained soil as Art.P/3, and further produced the parcel of the knife as Art.P/4, the sample of seal as Art.P/5, and the knife with yellow handle as Art.P/6. PW-7, Mohibullah, Patwari, produced the drafted site sketch as Exh/7-A and also produced the murasila addressed by the Investigating Officer to the Tehsildar Settlement as Exh/7-B. PW-8, ASI Rehmatullah, is a witness to the seizure memo. of the blood-stained clothes of deceased Shoaib Khan and injured Ajab Khan (Exh/8-A). PW-9, Dr. Saleemullah Pathan, Medical Officer, examined the injured Ajab Khan and placed on record the medico-legal certificate as Exh/9-A. PW-10, Dr. Zahid Ali, Police Surgeon, examined the dead body of deceased Shoaib Khan and issued the death certificate (Exh/10-A). PW-11, Baz Muhammad, is a witness to the seizure memo. of the photographs of deceased Shoaib (Exh/11-A) and produced the photographs as Art.P/13 to Art.P/18. PW-12, SI Muhammad Sadiq, is the Investigating Officer who, as noted above, visited the place of incident, prepared the site sketch, recorded the statements of the witnesses, and explained the various steps of his investigation before the trial Court.
5. The Investigating Officer produced the FIR as Exh/12-A; the Naqsha-e-Mazroobi of deceased Shoaib Khan and injured Ajab Khan as Exh/12-B and Exh/12-C; two photographs of deceased Shoaib Khan and two photographs of the crime scene depicting bloodstains as Art.P/19 to Art.P/22; the list of legal heirs of the deceased as Exh/12-E; the site inspection map as Exh/12-F; the incomplete challan as Exh/12-G; the FSL report as Exh/12-H; Challan No.10-A/2024 as Exh/12-J; and Challan No.10-B/2024 as Exh/12-K.
6. It is observed that though the Investigation Officer (PW-12) produced the Naqsha-e-Mazroobi of deceased Shoiab Khan and injured Ajab Khan before the trial Court as Exh/12-B and Exh/12-C, but the Court record mistakenly reflected the forwarding letters addressed to the Police Surgeon and the Medical Officer, Civil Hospital, Quetta, seeking issuance of the post-mortem report and medicolegal certificate, as Exh/12-B and Exh/12-C. Subsequently, the complainant, through counsel, filed an application seeking rectification of the said mistake and for the proper exhibition of Naqsha-e-Mazroobi as Exh/12-B and Exh/12-C.
7. Thereafter, the appellant/accused was examined under Section 342, Cr.P.C., wherein he denied the prosecution allegations and claimed innocence; he did not opt to record his statement on oath under Section 340(2), Cr.P.C., nor did he produce any witness in his defence.
8. Upon conclusion of the trial, the trial Court, vide impugned judgment dated 03.02.2025, found the appellant/accused guilty and convicted and sentenced him in the following terms:
16. Consequent to what has been discussed hereinabove, the accused person namely Faiz-ul-Haq son of Noor-ul-Haq, caste Kakar, resident of Petau Bayanzai, Pishin is hereby convicted under section 300 of Pakistan Penal Code and is sentenced under section 302(b) of P.P.C to suffer rigorous imprisonment for Life as Tazir.
17. The accused person is directed to pay Rs.5,00,000/- (rupees Five Hundred Thousand) as compensation to legal heirs of the deceased Shoib Khan as provided under section 544-A of Criminal Procedure Code and in default of which the convict shall further undergo for a period of six months.
18. The accused person Faiz-ul-Haq son of Noor-ul-Haq is also sentenced under section 324 of P.P.C for attempt to commit Qatal-e-Amd i.e causing injuries to Ajab Khan (PW-3) to suffer R.I for 05 years and to pay fine of Rs.50,000/- (Rupees Fifty thousand only), in default of which he shall further suffer six months simple imprisonment.
19. In addition to above, the accused is also convicted to pay Daman for the hurts caused to injured Ajab Khan, as provided under section 324 of Pakistan Penal code with following manners;
(i) The nature of injuries of injured Ajab Khan are covered by section 337-E(iii) of Pakistan Penal code, therefore, accused is sentenced under section 337-F(iii) of Pakistan Penal Code for three years rigorous imprisonment and to pay Daman of Rs.100,000/- (Rupees One Hundred thousand) to injured Ajab Khan.
(ii) The sentences awarded under sections 302(b), 324 and 337-F(iii) of Pakistan Penal Code, respectively, shall run concurrently.
19. Benefit of section 382-B of Cr.P.C is also awarded to convict w.e.f 16-01-2024.
ARGUMENTS:
9. Learned counsel for the appellant/accused contended that the impugned judgment dated 03.02.2025 is perverse, contrary to the record and not sustainable in law. He submitted that the trial Court misappreciated the evidence by placing unwarranted reliance on related and interested witnesses whose testimonies are riddled with material contradictions, omissions and improvements; that the ocular account does not accord with the medical evidence; and that even the identification of the appellant as the perpetrator is shrouded in doubt. Learned counsel maintained that the trial Court overlooked mandatory procedural and substantive provisions, failed to correctly interpret and apply the Qanun-e-Shahadat Order, 1984, though framed the charge under Section 34, P.P.C but did not address the element of common intention, and rendered a judgment falling short of the requirements of Section 367, Cr.P.C. According to learned counsel, material portions of the evidence were misread or not read at all and the settled principles relating to benefit of doubt, including the maxim in dubio pro reo and the rule that the accused is the favorite child of law, were ignored. Lastly, learned counsel contended that the prosecution has failed to prove the charge beyond reasonable doubt and that the impugned judgment is devoid of legal sanctity and liable to be setaside.
10. Conversely, learned counsel for the complainant, while supporting the conviction of the appellant/accused, assailed only the quantum of sentence and contended that although the trial Court rightly found the appellant/accused guilty of murdering Shoaib Khan and injuring Ajab Khan, it erred in awarding an unduly lenient sentence of life imprisonment instead of the maximum penalty of death under Section 302(b), P.P.C. It was argued that the prosecution case stood fully proved through a consistent ocular account, duly corroborated by medical evidence and documentary material, and that the appellant/accused neither rebutted the prosecution evidence nor produced any defence. Learned counsel submitted that, despite the established motive and the brutal murder of a 16-year-old boy, the trial Court assigned no cogent reason for taking a lenient view, thereby rendering the lesser sentence contrary to law and liable to enhancement. He further contended that the compensation of Rs.500,000 awarded under Section 544-A, Cr.P.C., is below the Diyat amount notified by the Government for the relevant fiscal year and, therefore, requires enhancement. Lastly, learned counsel prayed that the impugned judgment be modified, the sentence of life imprisonment be enhanced to death, and the amount of compensation be increased in accordance with law.
11. Learned Additional Prosecutor General ( APG ) supported the impugned judgment and opposed the appeal, contending that the trial Court properly appreciated the evidence and passed a well-reasoned judgment. Per learned APG, the relationship of the eye-witnesses with the deceased and injured is not, by itself, a ground to discard their statements when they are consistent, confidence-inspiring and corroborated by other evidence; further stated that the alleged contradictions are minor and immaterial.
DETERMINATION:
12. The record demonstrates that the FIR was lodged with promptitude, wherein the appellant/accused is expressly nominated and assigned the role of inflicting the fatal injury upon the deceased, Shoaib Khan. The allegations set-forth in the FIR are fully corroborated by the uniform and mutually reinforcing statements of the complainant, the eye-witnesses, and the injured witness, Ajab Khan (PW-3). Given that the appellant/accused, the eye-witnesses, and the deceased were inter se close relatives, no ambiguity arises regarding the correct identification of the appellant/accused. The medical evidence likewise lends strong support to the ocular account furnished by the eye-witnesses. In such circumstances, the possibility of the appellant/accused being falsely implicated through substitution of the actual culprits is improbable. Reliance in this regard is placed upon the case title as Muhammad Afzal v. State [1] , relevant excerpt whereof is reproduced:
-------. The statements of both the prosecution witnesses qua the time, date, mode and manner of occurrence are identical. Although they were cross-examined at length but nothing detrimental to the salient features of the prosecution case was detected from cross-examination conducted by defence counsel. Otherwise it is an admitted fact that the occurrence has taken place in the open field whereas the parties are known to each other since long. The occurrence has taken place in the broad daylight and there is no chance of any misidentification. All these factors when evaluated conjointly it is abundantly clear that the prosecution has succeeded to establish case without any reasonable doubt.
13. The appellant/accused has not substantially questioned the presence of the eye-witnesses at the place of the incident. It remains undisputed that the deceased met an unnatural death, and that the appellant/accused was specifically nominated in the FIR as the individual who inflicted the fatal blow causing the deceased s death and the injury to PW-3. The eye-witnesses, being residents of the same locality, were naturally present at the material time, and their testimony cannot be discarded as that of chance witnesses. The defence likewise did not deny the presence of appellant/accused at the place of occurrence; rather, during the cross-examination of PW-1 (complainant), the defence put a suggestion that on the night of the incident i.e. 15.01.2024, the appellant/accused, Faiz-ul-Haq, had officiated the Isha prayer in the absence of the imam. The relevant extract from the cross-examination of PW-1 is reproduced:
14. The ocular evidence is fully corroborated by the statements of the eye-witnesses. The medical evidence also supports the ocular version, and, as noted above, the FIR was lodged with promptitude, thereby leaving minimal room for the false implication of the appellant/accused. Even otherwise, the defence plea advanced by the appellant/accused that he was illegally nominated in the FIR due to a civil dispute is untenable and illogical, particularly in view of the close familial relationship between the complainant and the appellant/accused. It is inconceivable that the complainant or any eye-witness would substitute the actual culprit by falsely nominating the appellant/accused. Therefore, in absence of any credible or convincing material that could create doubt regarding the prosecution case, and keeping in view the consistent chain of oral evidence duly supported by medical evidence, nothing has surfaced on the record that could, in any manner, support the case of the appellant/accused.
15. The Criminal Revision Petition filed by the complainant has also been considered. Since no motive was alleged by the complainant in the FIR, and the deceased received only one fatal blow i.e., stab wound on the left side, front of chest 2 x 1 muscle deep, and as the medical certificate confirms that the dagger blow was not repeated; in these circumstances, in absence of motive, coupled with the non-repetition of the dagger blow, constitutes a mitigating factor in the assessment of culpability. The trial Court, therefore, acted correctly in extending consideration to these mitigating circumstances.
16. It is trite principle of law when the complainant and eye-witnesses have not alleged any motive either in the FIR or in their courts statements; though defence side had tried to introduce certain motive but same was also not proved. In such circumstances when motive is shrouded in mystery this very fact becomes a mitigating circumstance. Even it is settled law that an accused cannot be acquitted on the sole ground of absence of motive or failure of prosecution to prove the same, however, the said gap can be considered towards mitigation of the sentence, therefore, the trial Court by taking lenient view has rightly awarded the sentence of life imprisonment to the appellant/accused. Reliance in this regard is being placed on the case titled as Muhammad Shoban v. State [2] , whereby the Honourable Supreme Court held as under:
The law of the land in this regard is much settled by now that absence of motive or absence of proof of the same would be a sufficient mitigating circumstance to determine the quantum of sentence. We can lay hands on some of the latest judgments of this court for a matter of reference i.e. Mst. Nazia Anwar v. The State (2018 SCMR 911), Nadeem Ramzan v. The State (2018 SCMR 149), Haq Nawaz v. The State (2018 SCMR 21), Ghulam Muhammad v. State (2017 SCMR 2048), Saif Ullah v. State (2017 SCMR 2041) and Waris Ali v. The State (2017 SCMR 1572).
In the wake of the above deliberations, and after careful examination of the record, we find no justification to disturb the findings of the trial Court, as neither the Criminal Appeal nor the Criminal Revision Petition raises any tenable ground for interference. Consequently, the same are hereby dismissed.
JK/24/Bal. Appeal dismissed.