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JUDGMENT SHEET
IN THE PESHAWAR HIGH COURT,
PESHAWAR
(Judicial Department)

J.Cr.A. No.569-P/2011

Date of hearing: 26.02.2015

Date of announcement: 12.03.2015

Appellant (s) : Zarif Khan by Mr. Altaf Khan, Advocate.

Respondent (s) : Noor Wali father of complainant and

Mian Arshad Jan AAG for the State.

JUDGMENT
ASSADULLAH KHAN CHAMMKANI, J.- Through the

instant Jail Criminal Appeal, appellant Zarif Khan, has

questioned the judgment dated 06.08.2011, passed by learned

Additional Sessions Judge, Hangu, whereby the appellant has

been convicted and sentenced as under:-

Under Sections 394 r/w 397 PPC: To

undergo life imprisonment and to pay a fine

of Rs.50,000/- or in default thereof to

undergo one year R.I. further.

Under Section 324 PPC: To undergo 10

years R.I. and to pay a fine of Rs.20,000/- or

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in default thereof to undergo 04 months R.I.

further.

Under Section 336 PPC: To pay Arsh

amounting to Rs.6,50,000/- equal to one half

of Diyat to the victim with five years R.I.

Under Section 337-D PPC: To pay Arsh

Rs.4,35,000/- equal to one third of Diyat to

victim with five years R.I.

Under Section 13 Arms Ordinance,

1965:- To undergo 05 years R.I. and to pay

a fine of Rs.20,000/- or in default thereof to

undergo 04 months R.I. further.

The payment of Arsh has been directed in

lump sum within three months from the date

of judgment and the sentences to run

concurrently. Benefit of S.382-B Cr.P.C. has

been extended to the appellant.

2. The prosecution case as unfolded in First

Information Report is that on 02.02.2010 at 1400 hours,

Ahmad Sohail alias Mahel (PW.9), reported to Islam ud Din

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SHO (PW.5), in injured conditional in Abdul Rauf hospital

Hangu, to the effect that he and Zarif Khan (appellant convict

herein) being friends, had visiting terms with each others;

that on the fateful day he while returning from Thall bazaar

on a motorbike met his friend Zarif Khan, who also

accompanied him to his house, where they spent a night

together in baithak; that on morning they both again

proceeded to Thall bazaar via his motorbikeKG-375; that on

their arrival in Thall Bazaar, Zarif Khan left and returned after

some time along with charas and a pistol; that they both

started for their home on motorcycle and when reached

“Khari Makh mountain Darga”, Zarif Khan asked him to stop

the motorcycle so as to smoke a cigarette of chars, who he

stopped where at about 8.00 a.m, Zarif Khan took out his

pistol and opened fire upon him with which he got hit and

seriously injured, while accused took away his motorcycle. He

was shifted to hospital where he lodged report. Report of the

complainant was reduced into writing in the shape of

murasila, on the basis of which FIR No.31 dated 02.02.2010,

under section 324 PPC read with S.17 (3) Offences Against

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Property (Enforcement of Hudood) Ordinance, was registered

at Police Station Thall. Islam ud Din SHO (PW.5), prepared

injury sheet of injured complainant Exh.PW.5/2 and referred

him for medical treatment. He also arrested accused Zarif

Khan vide arrest Card Exh.PW.5/1 and recovered motorcycle

bearing registration No.8149 LEP Delux Honda 125 Exh.P.3

from possession of the accused vide recovery memo Exh.PC.

3. Dr. Aurangzeb Khan (PW.7) examined injured

complainant and found serious firearm injuries on his person.

He was referred to Surgeon for Expert Surgical management

and on 08.02.2009, as per surgeon note, multiple firearm

injuries to abdomen and different internal vital organs like

liver, spleen, kidney, pleura and urinary bladder of the

injured were found.

4. Rais Khan S.I. (PW.1) conducted investigation in

the case. He arrested accused Zarif Khan on the same day of

occurrence, who led the police party to crime spot and on his

pointation site plan was prepared. During spot inspection 3

crime empty of 30 bore pistol were recovered and taken into

possession vide recovery memo Exh.PC/2. He also secured

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blood stained pebbles from the from the place of injured and

a 30 bore pistol bearing No.KG 375-Q 1954 with fixed

charged from near the place of incident vide memo Exh.PC/3.

He took into possession the bloodstained garments of the

injured vide memo Exh.PC, sent the bloodstained articles and

empties along pistol to the FSL, reports whereof were

received in positive. He also took into possession registration

documents of the motorcycle vide recovery memo Exh.PC/3,

recorded statements of the PWs under section 161 Cr.P.C.

and placed on file the medical treatment record of the

injured.

5. After completion of investigation, challan was

submitted against the appellant/accused 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 nine 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

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to produce evidence in defence. On conclusion of trial,

learned Trial Court, after hearing both the sides, convicted

and sentenced the appellant as mentioned above, hence, this

appeal.

6. Before dilating upon the merits of the case in light

of the arguments advanced from either side, we would like to

meet first the preliminary objection, raised by learned AAG

questioning the jurisdiction of this Court to entertain the

instant appeal. Learned AAG contended that as the appellant

has been tried for charged under section 324 PPC read with

S.17 (3) Offences Against Property (Enforcement of Hudood),

Ordinance, 1979, therefore, appeal would lie before the

Federal Shariat Court while this court lacks the jurisdiction to

entertain the same, therefore sought return of the appeal to

the appellant for its presentation before the proper forum.

7. Conversely, learned counsel for the appellant

contended that since no punishment, having been awarded

to the appellant under the Offences Against Property

(Enforcement of Hudood) Ordinance, 1979, rather he has

been convicted under the general law i.e. Pakistan Penal

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Code, therefore, the appeal has rightly been filed before this

Court against the judgment of the learned Trial Court.

8. In light of ratio of judgment of the Hon’ble

Supreme Court in case titled, “Attaullah Versus Abdur

Razaq and another” (PLD 2002 Supreme Court 534),

we are in agreement with contention of learned counsel for

the appellant as in the judgment (supra) the question of

jurisdiction in identical situation has been resolved by the

apex court after exhaustive discussion on S.24 and Sub-

section 5 of Section 17 of the Offences Against Property

(Enforcement of Hudood) Ordinance, 1979 as well as S.410

Cr.P.C.. In the above cited case, accused was charged under

S.17 (4) Offences Against Property (Enforcement of Hudood

Ordinance, 1979 read with Sections 302/34 PPC. On

conclusion of trial, charge against the accused was proved

only to the extent of Sections 302/34 PPC, therefore, he was

acquitted under section 17 (4) of the Ordinance, however,

convicted under sections 302/34 PPC. While resolving the

question of jurisdiction in such circumstance, the apex court

held as under:-

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“As stated above, the petitioner has been

sentenced to death under sections 302/34 PPC,

therefore, the Sessions Court was bound under the

law to send the reference for confirmation of

death sentence to the High Court and in such

circumstances, the petitioner rightly filed an

appeal under section 410 PPC to the High Court

against his conviction and sentence”.

Taking guidance from the judgment of the Hon’ble Supreme

Court (supra), the appeal has rightly been filed before this

court, and this court has the jurisdiction to try the same.

9. On merits, learned counsel for the appellant argued

that appellant is innocent and has been implicated falsely; that

testimony of injured complainant is suffering from material

contradictions and discrepancies creating serious doubts about

his credibility and reliability, therefore, the learned Trial Court

has wrongly believed and relied upon his statement as mere

stamp of injuries on the person of a witness cannot be a

certificate that whatever he is deposing would truth; that

testimony of the complainant does not find corroboration from

other strong circumstances of the case; that no charge under

section 13 of the Arms Ordinance, 1965 has been framed

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against the appellant, therefore, conviction under the said

section of law is unwarranted, and the positive FSL report qua

the pistol and empties would thus not advance the

prosecution case; that prosecution has miserably failed to

prove the guilt of the appellant beyond shadow of doubt

through cogent and confidence inspiring evidence, therefore,

the impugned judgment is liable to be set aside.

10. Conversely, learned AAG contended that

appellant is directly and singularly charged by complainant

having stamp of injuries on his person, whose presence on the

spot cannot be disputed at all; that recovery of blood from the

spot, bloodstained clothes of the injured and positive

Serologist report corroborate the version of the complainant;

similarly, recovery of crime empties and pistol from the spot

coupled with positive report of the FSL further supplement the

version of prosecution; that though charge u/s 13 A.O. has

not been framed but this piece of evidence has been put to

the appellant in his statement under section 342 Cr.P.C.,

therefore, the same has rightly been considered by the

learned Trial Court; that nothing is available on file to show

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mala fide or previous ill will of the complainant to falsely

charge the appellant, who was his close friend; that the

motorcycle snatched by the appellant from complainant has

been recovered from possession of the appellant and taken

into possession by the I.O. vide recovery memo Exh.PC/1;

that prosecution has successfully proved the guilt of the

appellant through cogent and confidence inspiring evidence

and the defence has failed to shatter the prosecution

evidence. He while supporting the impugned judgment sought

dismissal of the appeal.

11. We have heard the exhaustive arguments of

learned counsel for the appellant and learned AAG for the

State. Record perused with their valuable assistance.

12. In support of his version, injured-complainant

Ahmad Sohail appeared as PW.9, wherein he reiterated the

same episode set forth by him in his initial report. He charged

the appellant for commission of the offence. He has been

subjected to cross-examination but nothing beneficial to

defence could be extracted from him. Nothing has been

brought from him during cross-examination to prove his

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previous ill will or enmity with the appellant to prompt him to

falsely charge him. Rather he reiterated his friendship with the

appellant and their visiting terms to the house of each other.

The incident is that of a broad daylight and appellant and

complainant being friends inter-se question of mistaken

identity or substitution does not arise in absence of any

previous ill will between the parties. Rather, it is established

on the record that both complainant and appellant had close

friendship and it does not appeal to a prudent mind that

complainant will charge his close friend by letting off the real

culprit.

13. Bloodstained pebbles recovered during spot

inspection from the place of the injured complainant and his

bloodstained clothes have been sent to the FSL and positive

report of the Serologist corroborates and confirms the crime

venue as alleged by the complainant. The learned Trial Court,

has also relied upon the positive FSL report qua the crime

empties and 30 bore pistol recovered on the pointation of the

appellant from the spot, but record divulges that no charge

has been framed against the appellant under section 13 of the

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Arms Ordinance 1965. The learned Trial Court in support of

its finding held that since the appellant was confronted with

the recovery of pistol and positive FSL report in his statement

under section 342 Cr.P.C., therefore, this piece of evidence

could be taken against him. We do not agree with the findings

of the learned Trial Court on this point, as such exercise is

unwarranted under the law, rather the appellant should have

been confronted with the charge under section 13 A.O. by

giving him an opportunity to answer the charge, therefore,

this piece of the prosecution evidence is excluded from

consideration. Even if, the recovery of pistol and positive FSL

report qua the same is excluded from consideration, we have

trustworthy and confidence inspiring direct evidence of injured

complainant supported by recovery of blood from the spot, his

bloodstained garments coupled with medical evidence and

where the direct evidence is believed, then such like pieces of

corroborative evidence 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),

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“that if the court is satisfied about the truthfulness of direct

evidence available on record, requirement of corroboration is

not of much significance”. The motorcycle bearing registration

No.8149/LEP Deluxe Honda-125 Exh.P.3, snatched from the

complainant has also been recovered and taken into

possession vide recovery memo Exh.PC/3 from the appellant,

which also substantiate the version of complainant.

14. Dr. Aruangzed Khan who examined injured

complainant appeared as PW.7. He deposed that on his

examination, he found the injuries of the complainant serious,

therefore, referred him to Surgeon for surgical management;

that according to surgeon note in light of lapratomy,

abdomen, all vital organs like liver, spleen, kidney, plurea,

urinary bladder were found injured along with fracture of MIP

hip bone. Dr. Abdul Rauf appeared as PW.8. He deposed that

after resuscitation with 6 units of blood and other supportive

measuring, emergency lapratomy done with following

injuries:-

1. Two perforation in stomach.

2. Transverse mesocoln perforation.

3. ½ circumference shattered wall of sigmoid colon.

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4. Shattered spleen.

5. Almost transverse full circumference cut in distal

1/3 of pancreas with spleen vein damage.

6. Shattered Lt. Kidney with main vascular damage.

7. Two perforation in urinary bladder.

8. Big perforation in curare of Lt. diaphragm.

9. Reflection of Lt. perital pleura in 11th enter costal

space.

15. Thus, medical evidence discussed above, further

supports the injured-complainant’s version and indicates the

intention of the appellant to do the complainant away but it

was the Almighty Allah Who saved his life. The prosecution

has successfully proved the guilt of the appellant through

cogent and confidence inspiring evidence beyond shadow of

doubt and the learned Trial Court while appreciating the

evidence in its true perspective and taking into consideration

the injuries of the complainant in light of medical evidence

available on file, reached to a right conclusion by holding the

appellant guilty of the offences except the offence under

section 13 of the Arms Ordinance, to which no exception can

be taken. While the appellant stands acquitted of the charged

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under section 13 of the Arms Ordinance, in light of our

discussion mentioned above.

16. Resultantly, this appeal being without any

substance, stands dismissed. Conviction and sentences of the

appellant recorded and awarded by the learned Trial Court

vide impugned judgment dated 06.08.2011 except Section 13

of the Arms Ordinance, are maintained.

Announced.
12.03.2015.

JUDGE

JUDGE

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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

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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