2026 PLP 686 (YLR)

Sahibzada Asadullah, J.

Through this single judgment, we shall also decide the connected Cr.A. No. 1534-P/2023 titled "Ghulam Haider v. Alif Khan etc" as both the appeals are arising out of one and same judgment dated 28.10.2023 rendered by the learned Addl. Sessions Judge-XIV, Peshawar, in case FIR No. 970 dated 26.09.2020 under sections 302/324/34 P.P.C, registered at Police Station Nasir Bagh, Peshawar, whereby, the learned trial Judge has convicted and sentenced the appellants as under: I. Appellant Saif-ur-Rehman under section 302-B/34 P.P.C to death. He be hanged from neck till death subject to confirmation of his conviction from the appellate court while appellant Ghulam Haider under section 302-B/34 P.P.C to imprisonment for life as Tazir. The convicts are also to pay compensation of Rs. 1,000,000/-(ten lac) to the legal heirs of the deceased under section 544-A Cr.P.C recoverable as arrears of land revenue. In default in payment thereof, they shall further undergo months simple six (06) imprisonment. II. Both the appellants were also convicted and sentenced under section 324/34 P.P.C for attempting at the life of complainant, Alif Khan, for rigorous imprisonment of five (05) years with fine of Rs. 50,000/- (fifty thousand), in default whereof, the accused shall undergo simple imprisonment of three (03) months. Benefit of section 382-B Cr.P.C is extended to accused. All the sentences of imprisonment shall run concurrently.

2. The facts of the present case are that on 26.09.2020, Sub-Inspector Fazal Hayat Khan, upon receiving information regarding the occurrence, proceeded to, Police Post Regi Lalma (02), of Police Station Nasir Bagh, Peshawar. Upon arrival, he discovered two civilian individuals, namely Wazir Gul and Alif Khan, sons of Hakeem Khan, along with Constable Saif-Ur-Rehman (No. 7154), in an injured condition. The injured individuals were immediately shifted to Hayat Medical Complex (HMC), Peshawar, for medical treatment. At 03:30 hours, while under medical care, the complainant/injured, Alif Khan (son of Hakeem Khan), reported the incident to the effect that on the night of incident, he along with rest of his family members was fast asleep; that he heard the noise of opening the door, he got up and found his sister Mst. Sultana Bibi missing; that he along with the deceased started search for her and noticed her coming out from the Police-Post, towards their house; that they asked the reasons of her missing who replied that she had developed relationship with the constable Saif-ur-Rehman, so she had gone to visit him; that he along with the deceased went to the Police-Post to inquire about the matter, that they talked to the constable Saif-ur-Rehman and the discussion turned hot followed by free fight and thereafter the accused started firing at him and the deceased, that from the firing made by the appellant Saif-ur-Rehman, the deceased received a firearm injury, whereas from the firing made by the accused Ghulam Haider, he got injured; that the injured Wazir Gul after receiving firearm injuries succumbed to the injuries and died enroute to the hospital. Hence, the instant FIR.

3. After completion of investigation, complete challan was submitted to the court. Provisions of section 265-C Cr.P.C were complied with and the appellants were charge sheeted, to which they pleaded not guilty and claimed trial. In order to prove its claim, the prosecution produced and examined as many as seventeen (17) witnesses. After closure of prosecution evidence, statements of the appellants were recorded under section 342 Cr.P.C, wherein they posed innocence, however, neither they wished to be examined on oath as required under section 340 (2) Cr.P.C, nor wanted to produce evidence in defence. The learned trial Court, after full-fledged trial convicted the appellants vide judgment dated 28.10.2023. Felt aggrieved, the appellants filed the instant criminal appeals and the learned trial court sent the murder reference for its confirmation or otherwise.

4. Arguments of learned counsel for the parties and learned AAG representing the State were heard and record scanned through with their valuable assistance.

5. The unfortunate incident claimed life of the deceased while leaving two injured behind. The injured were collected from the spot, in the official vehicle, but the injured Wazir Gul succumbed to the injuries while enroute to the hospital, whereas the complainant and the appellant Saif-ur-Rehman were received in the hospital in injured condition, where, the complainant reported the matter to one, Fazal Hayat Khan, Sub-Inspector (SI), which was penned down in the shape of Murasila. The injury sheets and inquest report were prepared, the injured were examined by the doctor and their medico legal certificates were prepared, whereas the dead body was sent for post-mortem examination. The investigating officer visited the spot and on pointation of the complainant prepared the site plan. During spot inspection the investigating officer collected blood through cotton from the respective places of the injured. He also collected an empty of 7.62 bore from the place assigned to the appellant, Saif-ur-Rehman, whereas near from the place of the co-accused i.e., Ghulam Haider, two (02) live rounds along with two (02) empties of 30 bore were also taken into possession. As the appellant Saif-ur-Rehman had also received injuries in the episode and was charged by the complainant along with the appellant Ghulam Haider for the commission of the offence, so he was arrested and his card of arrest was prepared. It is pertinent to mention that when the Investigating officer visited the Police Post, where the incident had occurred. PW Anwar No. 2796, handed over the service rifle of the appellant Saif-ur-Rehman, lying in the Police-Post and also a 30 bore pistol. The recovered weapon along with the collected empties were sent to the firearms expert, a report was received where the 7.62 bore empty matched with the service rifle of the appellant Saif-ur-Rehman, whereas the remaining empties were declared to be that of 30 bore. Subsequently, the appellant Ghulam Haider was also arrested, his card of arrest was prepared. The investigating officer also recorded statement of Mst. Sultana Bibi, in support of the claim of the prosecution, and thereafter she was lodged in the Women Crises Center, as she had developed bad terms in her house, because of the incident. The appellants were committed for trial, and on conclusion of the trial the learned trial Court was pleased to convict and sentence the appellants vide the impugned judgment.

6. The learned trial Court while handing down the impugned judgment took into consideration the collected evidence and also the statements of the witnesses, and it was after application of its judicial mind, that it reached to the conclusion that the accused facing trial did commit the offence and as such they were held responsible. There is no denial to this fact that the unfortunate incident occurred inside the Police-Post, where the appellant Saif ur Rehman was posted, and the co-appellant Ghulam Haider, was engaged as a daily wager, but at the same time, the house of the complainant was situated near the Police-Post, so there was every possibility that the appellants were on terms to the inmates of the house. As the bone of contention was Mst. Sultana Bibi, and it was her visit to the Police-Post which troubled the complainant and the deceased, so this Court is to see as to who was responsible for the tragic incidence and that what responsibility could be placed over the shoulders of the complainant and the deceased, as it was the complainant and the deceased who visited the Police-Post with a disturbed mind. True that the appellant was serving as a constable and was posted in the Police-Post, but whether that alone would make him liable for the unfortunate incident, or that this Court would be at liberty to assess that what responsibility can be placed over the shoulders of the complainant and the deceased, as they visited the Police-Post, after getting information from their sister. This Court is to see as to whether the incident occurred in the mode, manner and the stated time and, that whether the prosecution came forward with the whole truth with no concealment of facts, as by doing so, this Court would be in a position to rescue the innocent and to punish the guilty. In order to appreciate this particular aspect of the case, we deem it essential to take into consideration the statements of the witnesses and to take into consideration the manner in which the incident occurred.

7. The points for determination before this court are as to whether incident occurred in the mode, manner and at the stated time, as to whether the complainant was present on the spot at the time of occurrence and that he received injuries in the same transaction; as to whether the prosecution succeeded in proving the alleged motive, and as to whether in support of its claim, the prosecution could bring independent witnesses; as to whether the medical evidence supports the case of the prosecution, and as to whether the prosecution succeeded in bringing home guilt against the appellants.

8. The incident shocked us to the core, as a responsible Police official was held responsible for killing of the deceased and that the incident occurred inside the Police-Post. This is unfortunate that the house of the complainant was situated near the place of occurrence and the most unfortunate aspect of the case is that the sister of the complainant had developed physical relationship with the constable, now the appellant. As the incident occurred in the odd hours of night. so this Court is to see as to whether, in fact, it was because of the visit of Mst. Sultana Bibi to the Police-Post that the incident took placed or that the charge was levelled against the appellants for undisclosed reasons. There is no denial to this fact that the incident occurred inside the Police-Post, and the recoveries were made from the place of incident, but there is also no denial to this fact that the prosecution is to tell and prove that the incident occurred in the stated manner. In order to appreciate the peculiar circumstances of this particular case, we deem it essential to go through the statements of the witnesses and to ascertain as to whether the witnesses came forward with the whole truth. In order to appreciate the essence of the matter, we want to go through the statement of the Police official who visited the Police-Post, soon after receiving information and who picked up the injured and shifted them to the hospital, in his official vehicle. The witness was examined as PW-11, who stated that after receiving information regarding the incident, he rushed to the Police-Post and found the injured lying on the spot; that they were shifted to the hospital, but the injured Wazir Gul breathed his last while enroute to the hospital; that the complainant reported the matter which was penned down in the shape of Murasila; that the injury sheets and inquest report were prepared and as such the injured were examined by the doctor whereas the dead body was sent for post-mortem examination. It is pertinent to mention that this witness was cross-examined regarding the time when he received information regarding the incident and he was also questioned regarding the manner in which he reached to the spot, collected the injured and brought them to the hospital. On one hand, one of the appellant was serving in the Department as a constable, whereas on the other, the scribe being an official of the same department, did not extend any favour to the appellant, rather he explained the circumstances as it occurred and as he observed. This witness was cross-examined regarding the shifting of injured to the hospital, but he succeeded to explain the same and even the Investigating officer succeeded in collecting the most essential documents showing the entries of the injured and deceased into the hospital. It is pertinent to mention that the OPD chits collected from the hospital disclosed the time of arrival of the complainant to the hospital as 03:51 AM, whereas that of the appellant, Saif-ur-Rehman, as 03:55 AM. The doctor also confirmed the time of arrival of the injured to the hospital and also the time of examination of the injured, so the quick succession of events has left no ambiguity in telling that the matter was promptly reported and that injured from both the sides were brought to the hospital at one and the same time. The scribe was questioned regarding the fact that as the incident occurred in odd hours of night, so there was no possibility for him to identify the injured, lying on the spot and to have noted the situation prevailing soon after the incident, the witness explained that the light was available and that he could identify the injured and the appellants. He further explained that as the injured were lying on the spot, so he deemed it necessary to rescue the injured to the hospital to save their lives. The scribe displayed a natural conduct, as in the attending circumstances of the present case, the priority was to save the precious lives, so he instead of waiting for report on the spot, shifted the injured to the hospital and after due satisfaction, the complainant reported the matter. It is pertinent to mention that the dead body was examined by the doctor and even the post-mortem examination did confirm that the incident occurred at the stated time and that the deceased and injured were shifted to the hospital hurriedly. As on one hand, the house of the complainant was situated near the place of incident and on the other, the complainant himself got injured in the transaction, so his presence in the hospital is neither disputed nor the same could be questioned. As the Investigating officer collected blood from the respective places of the injured and the deceased and, he also collected an empty of 7.62 bore along with two (02) empties of 30 bore and two (02) live cartridges of the same bore, from the place of incident, so no ambiguity is left that the incident occurred inside the Police-Post and that the complainant and deceased received injuries in the stated manner. The Investigating officer was examined as PW-15, who was cross-examined on material aspects of the case, who explained that it was he, who prepared the site plan on the pointation of the complainant and that he made recoveries from the spot. The Investigating officer also explained that when he visited the Police-Post, after doing the needful, PW Anwar produced the service rifle of the appellant, Saif-ur-Rehman, along with a 30 bore pistol and he sent the same to the firearms expert to ascertain as to whether the empties were fired from the collected weapons. The record tells that the 7.62 bore crime empty was found matched with the service rifle of the appellant. This piece of evidence cannot be disbelieved, as the weapon was issued to the appellant and that the same was produced by a witness, who was posted in the same Police-Post and was examined as PW-09. True that the witness denied to have seen the occurrence, but he admitted his presence in the Police-Post. His denial of having seen the incident would hardly be a circumstance for disbelieving the report of the complainant, as always in the Police-Posts, the Police posted are performing their duties on shift basis. The explanation given by the witness appeals to a prudent mind, as admittedly, Mst. Sultana Bibi visited the Police-Post to enjoy her relationship with the appellant, so the appellant would have taken all measures to maintain secrecy and the possibility is there that when PW Anwar was not available, he asked Mst. Sultana Bibi to visit the Police-Post. As the empty was collected from the spot and so the service rifle of the appellant, so we cannot doubt that it was the appellant who used his service rifle to fire at the deceased and the laboratory report has substantiated the claim of the complainant. Apart from the official witnesses, we have the injured eye-witness i.e., the complainant of the instant case, who was examined as PW-12, who stated that, on the night of incident, he along with his family members, was sleeping in the house, on hearing the noise of door opening, he woke up and saw his sister missing; that he and the deceased went outside the house to search her; that they noticed her coming out of the Police-Post, she was inquired about, who disclosed her physical relationship with the appellant, Saif-ur-Rehman, so he and the deceased went to the Police-Post; that they started altercation which infuriated the appellants and they started firing at them, that from the firing of the appellant Ghulam Haider, he received a firearm injury, whereas from the fire made by the appellant Saif-ur-Rehman, the deceased received a firearm injury, they were shifted to the hospital where the matter was reported, but the deceased while proceeding to the hospital breathed his last. The complainant was cross-examined with an attempt to extract something favourable to the appellants, but he remained consistent regarding the manner in which the incident occurred and regarding the manner in which they were shifted to the hospital and the matter was reported. The injuries on the body of the complainant has left no ambiguity in telling that he received the injuries in the same transaction and that the deceased also received a firearm injury at the hands of the appellant, Saif-ur-Rehman. The stance of the complainant gets strength from the statement of the scribe, as it was the scribe who reached to the Police-Post and it was he, who collected the injured from the spot and shifted them to the hospital, in his official vehicle. The recoveries of blood through cotton from the spot along with empties of different bores has further added to the miseries of the appellants and despite struggle, the defense could not succeed in convincing us to disbelieve the case of the prosecution. As admittedly the appellant was posted in the Police-Post and his presence at the place of occurrence is neither disputed nor any witness was produced who could tell that on the night of incident the appellants were not present in the Police-Post. The defense did not question the most relevant witness i.e., PW Anwar, regarding the presence or otherwise of the appellants in the Police-Post and even PW Anwar did not depose in his favour. As the most important witness was the scribe and it was he who picked up the injured, including the appellant Saif-ur-Rehman, from the spot, so his presence in the Police-Post at the stated time cannot be disputed. True that the complainant is the real brother of the deceased, but mere relationship of the complainant with the deceased would hardly be a circumstance for disbelieving his statement, that too, when he himself received injuries in the episode. We are not ready to accept the false involvement of the appellants for the tragic murder of the deceased, as under no circumstances, a real brother would stigmatize his real sister for falsely implicating the appellants in the instant case. As on one hand the complainant had the stamp of injuries, whereas on the other, the defense despite efforts, could not shatter his testimony, so the incident occurred at the stated time and in the stated manner. Reliance can be placed on Imran Mehmood v. the State and another (2023 SCMR 795), which reads as follows: - "However, it is by now a well-established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses out-rightly. If the presence of the related witnesses at the time of occurrence is natural and their evidence is straight forward and confidence inspiring. then the same can be safely relied upon to award capital punishment. Learned counsel for the appellant could not point out any reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit, who has brutally murdered her father and uncle."

9. The medical evidence fully supports the story of the prosecution, as there was altercation followed by a free fight, so the stamp of injuries on the body of the complainant, the appellant and the deceased left no ambiguity that the incident occurred in the stated manner. This Court is to see as to whether the medical evidence is in line with the report of the complainant and that whether the complainant made dishonest improvements to bring his testimony in line with the medical evidence. In order to appreciate as to whether the incident occurred in the manner as reported by the complainant, or that the complainant concealed some of the facts to bring his story in line with the attending circumstances of the present case, so cross-to appreciate the truthfulness of the witness, we deem it essential to go through the statement of Mst. Sultana Bibi, who was examined as PW-13, who stated that on the night of incident, she left her house, visited the Police-Post and on coming to the house, she was inquired by the complainant and the deceased and she was severely beaten. The witness was cross-examined regarding the time she left the house and regarding the time she returned to the house, she deviated from the report of the complainant and she explained that when she reached to the house, she was inquired into and beaten. When the statement of the lady is juxtaposed with that of the complainant, it tells that the complainant did not narrate the story in its natural way, rather he twisted the facts for reasons best known to him. The lady was examined by the doctor, who found many injuries in the shape of bruises and lacerations and the doctor also disclosed that she was brought to the hospital in unconscious condition. When these two statements are taken into consideration, this Court lurks no doubt in mind that the complainant noticed the absence of the lady from the house only when she returned to the house, when so, then the statement of the complainant regarding noticing her coming out from the Police-Post cannot be accepted. When this particular aspect of the case was pondered over, this Court came to the conclusion that the improvement so made was only to convince this Court that the appellants were responsible for the tragic incident and that no liability can be put over the shoulders of the complainant and the deceased. This particular aspect of the case has put us on guard to apply extra care to appreciate the liabilities of the parties and to fix the responsibility. If the report of the complainant is taken into consideration, then no ambiguity is left in holding that the complainant and the deceased went to the Police-Post after the lady was beaten and that they visited the Post with a disturbed mind, to be more specific, they visited the appellants to take the revenge for their relationship with their sister. The circumstances do tell that the complainant and deceased went to the Police-Post, they engaged in hot talks followed by a free fight, because the complainant received injuries in the form of lacerations and abrasions and even the doctor confirmed that no firearm injury was caused to the complainant. As in the episode the appellant Saif-ur-Rehman had also received injuries, so the possibility cannot be excluded that not only the appellants but the complainant and the deceased were equally instrumental in disturbing the peaceful atmosphere. We are not going to extend extra benefit to the appellants, more particularly, to the appellant Saif-ur-Rehman, as it was he who established his physical contact with the sister of the complainant and the retaliation of the complainant and the deceased was nothing but natural. As not only the appellants were responsible, but it was the sister of the complainant who wished to meet the appellant on the night of incident and it was she who visited the Police-Post, so this Court is not inclined to exonerate the complainant and the deceased from the responsibilities, as they were also liable and responsible for the tragic incident to some extent. As there was a free fight between the parties and so admitted by the complainant and as the deceased received a single firearm injury, so this Court is confident in holding that the approach of the learned trial Court qua awarding the penalty of death to the appellant Saif-ur-Rehman, is not in accordance with law, rather the learned Court failed to appreciate the particular atmosphere, which was holding the field at the time of occurrence, and it failed to take into consideration that this was the complainant and the deceased who went to the Police-Post with a pre-determined mind to teach a lesson to the appellants, it was the responsibility of both the parties which turned to be the cause of killing, so in our understanding, the awarding sentence is more than the required one which calls for interference. The instant criminal appeal to the extent of the appellant Saif-ur-Rehman is partially allowed and instead he is convicted and sentenced under section 302-B P.P.C to life imprisonment and the remaining portion of the judgement to his extent is left intact. The like circumstances came before the Apex Court and the Court was pleased to answer the same in case title "Ahmad v. the State", reported as "2015 SCMR 993", in the following manner: - "

5. For what has been discussed above this appeal is dismissed to the extent of the appellant's conviction for an offence under section 302(b), P.P.C. recorded and upheld by the learned courts below but the same, is partly allowed to the extent of the appellant's sentence on that count of the charge which is reduced from death to imprisonment for life.

10. Now diverting to the case of the appellant Ghulam Haider, this Court deems it essential to take into consideration the role assigned to him and the injuries caused to the complainant by him. As the complainant himself made dishonest improvement regarding his involvement in the episode and it was the complainant who assigned the role of firing to the appellant Ghulam Haider and it was the complainant who disclosed that from the firing made by the appellant, he received firearm injuries. Interestingly, when the complainant was examined by the doctor, no firearm injury was noted on his body and it is the medical evidence which is in conflict with the statement of the complainant qua the firearm injury caused to him and this conflict between the two has travelled deep to the roots of the case qua his involvement in the episode. Had this been a case of a pre-planned murder, then this Court would have hold the appellant equally responsible with the appellant Saif-ur-Rehman, but as admittedly there was hot talks between the parties followed by a free fight, so it was during altercation that the parties lost their cool and as such the incident occurred. When admittedly there was a free fight between the parties, then this Court is to see the individual liability of every accused in the episode, as the introduction of a free fight has discarded the joint liability and the factum of common intention. In case of free fight, every individual is to be held responsible for the role he played and as no firearm injury was found on the body of the complainant, so we are inclined to hold that the statement of complainant lost confidence on this particular aspect of the case qua involvement of the appellant Ghulam Haider in causing him a firearm injury. When such is the state of affairs, then this Court is confident in holding that the dishonest improvements made by the complainant by itself is sufficient for the acquittal of the appellant Ghulam Haider from the charge levelled against him. Keeping in view the peculiar circumstances of this particular case, we are refrain from applying "falsus in uno falsus in omnibus" rather we are inclined to sift grain from the chaff and by doing so, we are confident in holding that both the appellants could be treated justly and fairly. While sifting grain from the chaff, this Court is inclined to hold that the prosecution failed to connect the appellant Ghulam Haider with the commission of the offence and that it failed to bring home guilt against this appellant. Reliance is placed on the judgment of august Supreme Court of Pakistan cited as 2004 SCMR 1185 titled "Iftikhar Hussain and others v. The State" wherein, it has been held as under: "It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e. sifting of grain out of chaff i.e. if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search corroboration for independent on material particulars as has been held in number of cases decided by the superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1738."

11. The learned trial Court, though, did its best while appreciating the evidence on file, yet it fell into error while dealing with the matter and as such, we are confident in holding that miscarriage of justice has occasioned. When such are the circumstances, then this Court is left with the only choice to extend the benefit of doubt to the appellant Ghulam Haider, and while doing so, his conviction is set aside, he is acquitted of the charge, he shall be released forthwith, if not required to the detained in any other criminal case.

12. As the criminal appeal has been partially allowed, so the Murder Reference No. 24-P/2023 is answered in negative. Above are the detailed reasons of short orders of even date. JK/125/P Order accordingly.