2025 PLP 1178 (YLR)

Muhammad Faheem Wali, J.

At a trial held by learned Additional Sessions Judge-l Haripur in case FIR No. 372 dated 21.11.2016 registered under Sections 302 /324/109/34 P.P.C. at Police Station Saddar District Haripur, appellant (Akhtar Nawaz son of Abdullah), after having been found guilty for committing murder of deceased namely, Yasir Nadeem and injuring Muhammad Javed and Aamir Shehzad, has been convicted and sentenced vide impugned judgment dated 25.03.2024 as under: Under Section 302 (b) P.P.C. to life term imprisonment with a fine of Rs.5,00,000/- as compensation to legal heirs of deceased (Yasir Nadeem) under Section 544-A Cr.P.C or in default to suffer further six (06) months S.I. Under Section 324 P.P.C. to ten (10) years R.I for effectively firing upon injured Muhammad Javed and Aamir Shehzad. Under Sections 337-A (i) and 337-F (ii) P.P.C. to three (03) plus three (03) years Sl respectively. Under Section 337-D P.P.C. to pay Arsh i.e. 1/3rd of Diyat amount prevailing at the time of occurrence, besides payment of Rs.50,000/- as Daman to each of the injured namely, Muhammad Javed and Aamir Shehzad. All the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C.

2. As per prosecution story, as unfolded in FIR (Ex.PA), on 21.11.2016 at 10:45 hours complainant Yasir Nadeem (then injured now dead) while reporting the crime in injured condition to Jehanzeb Khan IHC (PW-19) at Emergency Ward of DHQ Hospital Haripur alleged that he, being Naib Nazim of Union Council Bajeeda, had been busy in construction of street near the house of one Nawaz. He stated to have also been accompanied by his brother Aamir Shehzad (PW-04), father Haji Abdul Rahim (PW-01) and uncle Muhammad Javed (PW-05), meanwhile at 09:45 hours Muhammad Yousaf (dead co-accused) and Akhtar Nawaz (appellant) duly armed with pistols had statedly arrived at the crime spot and suddenly started firing at them. As per crime report, the complainant stated to have received firearm injuries on his left side of abdomen while his father (PW-01) sustained injury on his back at the hands of Muhammad Yousaf (dead co-accused) whereas Aamir Shehzad (PW-04) had received injuries on his forehead over left eye and left hand whilst Muhammad Javed (PW-05) sustained injury on his left side of abdomen at the hands of Akhtar Nawaz (appellant). The occurrence was stated to have also been witnessed by Haji Abdul Karim (not produced at the trial), Muhammad Nawaz (PW-02) and Ghulam Mustafa (PW-03). The complainant also charged acquitted co-accused namely, Shah Nawaz and Dilshad for abetment. Motive for the crime was dispute over construction of pathway of the Union Council. Report of the complainant was reduced into Murasila (Ex.PW-19/1), which was sent to police station through constable Nawaz No. 105 and Yasir Khan IHC (PW-11) incorporated its contents into FIR (Ex.PA).

3. Upon conclusion of investigation, challan was submitted before the learned trial court. Formal charge was framed against the appellant and his acquitted co-accused namely, Dilshad and Shah Nawaz, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution produced twenty one (21) witnesses, whereafter accused were examined under Section 342 Cr.P.C, wherein they denied the allegations and professed innocence, however, they neither opted to be examined on oath nor produced evidence in their defence. At the conclusion of trial, the learned trial Judge convicted and sentenced the appellant vide impugned judgment as mentioned above while acquitted the co-accused Dilshad and Shah Nawaz. Aggrieved of the impugned judgment, the appellant has filed the instant appeal.

4. We have heard arguments of learned counsel for the parties as well as learned State counsel and gone through the record with their valuable assistance.

5. Though the learned trial Court passed a guilty verdict, yet this being the appellate Court is under the bounden duty to assess and re-assess the available evidence on the file and to appreciate as to whether the learned trial Court was correct in its approach by convicting the appellant. In order to ascertain as to whether the impugned judgment is based on proper reasoning and that the learned trial Court correctly applied its judicial mind to the facts and circumstances of the case keeping in view the evidence available on the file, so we deem it essential to thrash out the evidence so as to avoid miscarriage of justice.

6. Before dilating upon merits of the case, it is necessary to be noted that initially after completion of investigation, challan was submitted before the learned trial court at the time when dead co-accused namely, Muhammad Yousaf was alive and a full-fledged trial was conducted, wherein the learned trial court vide judgment dated 16.07.2020 convicted and sentenced the appellant and his dead co-accused. Aggrieved of their conviction and sentence, both the convict had filed appeal (Cr.Appeal No. 131-A/2020) before this court which was allowed vide judgment dated 24.11.2021 by remanding the case back to learned trial court for want of some deficiency in the charge as well as impugned judgment. After remand, a de novo trial was held by learned trial court by re-framing the charge in accordance with the guidelines, mentioned in the judgment. During pendency of subsequent trial co-accused (Muhammad Yousaf) had met his natural death, however, at the conclusion of trial, the learned trial Judge convicted and sentenced the appellant vide judgment dated 28.04.2023 and acquitted the co-accused (Dilshad and Shah Nawaz) while proceedings against dead co-accused (Muhammad Yousaf) stood abated. Dissatisfied with the findings of learned trial court, the appellant had filed Cr.Appeal No. 151-A/2023 before this court, which was allowed vide judgment dated 27.02.2024 by remanding the case back to learned trial court for re-writing of judgment by rendering a definite decision either for the acquittal or conviction under / for each head of charge as well as applicability or otherwise of Section 34 P.P.C.. The learned trial court after remand again vide impugned judgment dated 25.03.2024 acquitted the co-accused (Dilshad and Muhammad Nawaz) and convicted the appellant as mentioned above.

7. We are conscious of the fact that the learned trial court while convicting the appellant had relied upon ocular account furnished by three (03) eye-witnesses i.e. Abdul Rahim (PW-01), Aamir Shehzad (PW-04) and Muhammad Javed (PW-05) besides medical evidence and recovery as well as discovery effected from the appellant, detailed in the judgment, however, as the principal accused Muhammad Yousaf had passed away during pendency of the subsequent trial and rest of the co-accused namely, Dilshad and Muhammad Nawaz, to whom the role of abetment was attributed, had already been acquitted by learned trial court, against whom no appeal has been filed by the complainant, therefore, instead of discussing the entire evidence, we deem it appropriate to debate upon the role attributed to the present appellant as well as the mode and manner of occurrence in which it had statedly taken place.

8. The complainant (then injured now dead) while reporting the crime alleged that he along with eye-witnesses namely, Haji Abdul Karim (PW-01), Aamir Shehzad (PW-04) and Muhammad Javed (PW-05) were busy in construction of street in front of the house of Muhammad Nawaz (PW-02) when in the meanwhile the appellant and his dead co-accused emerged and suddenly started firing upon them, as a result of which, he and his father Haji Abdul Karim (PW-01) had statedly received injuries with the firing of dead co-accused (Muhammad Yousaf) while Aamir Shehzad (PW-04) and Muhammad Javed (PW-05) had allegedly received injuries with the firing of appellant (Akhtar Nawaz). However, while twisting the story the star witness of the prosecution i.e. Abdul Karim (PW-01) stated in his examination-in-chief that he along with complainant (then injured now dead), Aamir Shehzad (PW-04), Muhammad Javed (PW-05), Muhammad Nawaz (PW-02) and Ghulam Mustafa (PW-03) and other people of the vicinity were present at the crime spot when the appellant and his dead co-accused (Muhammad Yousaf) reached there at 09:45 hours and asked them to stop the work of paving the street, whereafter the latter started altercation with them, followed by firing. Meaning thereby that the occurrence had not taken place in the mode and manner as narrated by the complainant in his report. It appears that first the appellant and his dead co-accused on reaching at the crime spot tried to stop them from paving the street, whereafter perhaps an altercation might have taken place, which resulted into firing upon each other as on one hand the complainant had lodged the instant FIR while, on the other hand, the appellant had also lodged a cross case bearing FIR No. 373 of even date. Besides the above, this witness while further exaggerating the stance also stated in his examination in chief that after commission of the offence the accused decamped from the scene while such fact could not be mentioned in the FIR by the complainant.

9. It is in evidence that the complainant was Naib Nazim while dead co-accused (Muhammad Yousaf) was Councilor of the area and both were having dispute upon construction / paving of the street near the house of Nawaz. As the appellant had also lodged a cross case vide FIR No. 373 of even date wherein Muhammad Javed (injured of this case) was charged for firing upon the appellant while dead complainant of this case namely, Yasir Nadeem, was charged for inflicting pistol butt blows to appellant on his head whilst injured Abdul Karim and Muhammad Ali had been charged for inflicting baton blows to brother of appellant namely, Muhammad Yousaf, now dead, which suggests that the complainant was knowing well the consequences of construction /paving of the disputed street that is why he along with his father, brother and uncle were present at the crime spot. From the facts narrated in both the FIRs it has become clearer than crystal that despite having dispute over construction of the street the complainant party was present at the crime spot, duly armed, and when the appellant and his dead co-accused arrived at the spot, first both the parties might have exchanged hot words, whereafter an altercation took place, however, when the sentiments of both the parties had gone at peak, thereafter they started firing upon each other, resulting into causing firearm injuries not only to the complainant party but also to the appellant and his brother (Muhammad Yousaf).

10. In the ibid eventualities when both the parties had admittedly exchanged hot words, followed by firing upon each other, now a question would arise that who was aggressor and who was aggressed upon. Although the prosecution examined number of witnesses but it cannot be gathered therefrom that which party was aggressor and which party had been aggressed upon, however, a glance over the statement of Investigating Officer namely, Abdur Rasheed (PW-17) divulges that in the first line of his cross-examination when questioned he admitted as correct that he had not specifically mentioned in his entire investigation that who was aggressor and who was aggressed upon, meaning thereby that this question had been left unanswered. If so, then none of the party can be held responsible for aggression. Both the parties in their respective reports have suppressed the injuries of each other by concealing the real facts. There is no credible evidence on record to prove that which of the two parties was aggressor by initiating the fight and which party had acted in self defence. The well recognized rule for evaluating the evidence in cross cases is to determine that who was aggressor and who was aggressed upon irrespective of the damage caused to either side. If the court, by evaluating the evidence in light of the aforesaid rule, finds one of the parties as aggressor and responsible for initiating the fight then that conclusion shall be followed by punishment of the aggressor in accordance with law. But when there is doubt that who was aggressor and who was aggressed upon and the evidence on record is not sufficient to prove the said fault on the part of either party, in that eventuality both the parties would be entitled to get the benefit of that doubt. By evaluating the evidence on the touchstone of the aforesaid rule, there is doubt that which of the two parties was aggressor or responsible for initiating the fight and evidence on record is not clear enough to establish that appellant and his dead co-accused were either aggressor being responsible for initiating the fight or they had exceeded the right of private defence, therefore, they are entitled to get benefit of the said doubt. In the like situation the Hon'ble Supreme Court of Pakistan while delivering its verdict in the case of "Saeed Muhammad v. The State" reported as 2007 SCMR 203 has extended benefit of doubt to petitioner Saeed Khan by holding as under: - "In view of the observations made by the High Court in the impugned judgment, the extract of which have been reproduced above, we have examined the evidence and found the same borne out on the record of the case. In view of such circumstances, when the situation lead to a free fight between the parties, subsequently one cannot be definite that it was the petitioner side who either initiated the episode or they have exceeded their right of self defence and particularly when the deceased has received only one Sota blow and who then fell in the pond." The ibid point has further been elaborated by Hon'ble Supreme Court of Pakistan, wherein also there was cross version and no definite finding had been given about aggression, by delivering its judgment in the case of "Mushtaq Hussain and another v. The State" reported as 2011 SCMR 45 wherein it has been held as under: - "

25. To rebut the argument that the defence did not plead right of self defence, we will refer to very recent judgment by this Court reported as Ghulam Farid v. The State, (2009 SCMR 929) where it was ruled that an accused if not raised the plea of self-defence during the trial either in his statement under section 342, Cr.P.C. or at the time of cross-examination of prosecution witnesses--Court, however, could infer the same from the evidence led during trial if it was tenable.

26. Since benefit of cross-version was given to the accused of cross-case, same will be extendable to the present two appellants particularly when the two eye-witnesses were injured but have charged the acquitted co-accused as well for causing injuries to them. The net result of this detailed discussion is that since both the Courts below have held that there is a cross-case and no definite finding can be given about the aggression made by the present appellants, they were entitled to benefit of doubt." The fact that one party sustained more loss or severe injuries than the other is also not a criterion for determining the factor of aggression. Though a precious life has been lost in the present case for which the appellant was held responsible by trial court but without taking any notice of the fact that complainant in his report has not only suppressed the injuries sustained by appellant and his dead co-accused in the same occurrence but also failed to explain the same. This situation leads to a reasonable doubt regarding the version of prosecution. The benefit of which goes to appellant as per well cherished principle of criminal justice. When from the evidence adduced at the trial it could not be gathered that which party was aggressor and which party was aggressed upon, then the only question left with this court will be constructive liability.

11. So far as constructive liability under Section 34 P.P.C. is concerned, suffice it to say that in the case in hand appellant and his brother i.e dead co-accused (Muhammad Yousaf) had been charged for firing upon the complainant and three (03) injured while in the cross case FIR No. 373 the appellant (Akhtar Nawaz) had also charged Muhammad Javed (injured) for firing at him and dead complainant (Yasir Nadeem) for inflicting pistol butt blows to him on his head whereas injured Abdul Rahim and Abdul Kareem had been charged for inflicting baton blows to Muhammad Yousaf (dead co-accused). No doubt the dead co-accused was charged for firing at the complainant, who died after 72 days of the occurrence due to the injuries sustained at the hands of dead co-accused while the present appellant was charged for causing injuries to Aamir Shehzad (PW-04) and Muhammad Javed (PW-05), however, at the same time it may also be taken into consideration that the appellant had also received injuries in the same incident while during evidence it cannot be proved that which party was aggressor and which was aggressed upon, thus, it cannot be said with certainty that the appellant had either shared his common intention with his dead co-accused or he in self defence had committed the offence On one hand possibility of arriving at the crime spot premeditated by the appellant cannot be ruled out of consideration, however, at the same time gathering of the complainant party, duly armed, at the crime spot may also cannot be brushed aside. As both the parties were having dispute over the construction / paving of street and they were duly armed and during combat both the parties had sustained injuries and in evidence it cannot be ascertained that which party was aggressor and which was aggressed upon, thus, in such a situation the appellant cannot be held responsible for sharing common intention in peculiar facts and circumstances of the case. In such a situation when both the parties caused firearm injuries to each other and when in view of facts and circumstances of the case it cannot be ascertained that which party was aggressor and which was aggressed upon, then this court cannot keep aside Sections 96, 97, 100 and 102 of the Pakistan Penal Code, 1860 whereby the wisdom behind was to extend the right to protect one's self from an act of aggression and from an activity which towards the end would claim his life. The combined reading of the ibid sections leave no ambiguity that the appellant acted in self defence and the injury caused to him was on the vital part of his body i.e. thigh besides receiving butt blows injury on his head, so in our understanding the appellant was deserving the extended concession, but the learned trial court failed to consider the most essential, and the most crucial aspect of this case. In similar situation the Hon'ble Supreme Court of Pakistan while delivering its verdict in the case of "Abdul Rashid v. Nazir Hussain and 05 others" reported as 1971 SCMR 284 has held as under: - "Although, the injuries on the persons of Nazir Hussain and Noor Muhammad were suppressed by the prosecution, this came to light because they had voluntarily appeared for examination before the same doctor who had held the post-mortem examination of the dead body of Mehraj Din. However, the injury No.1 which was a contused wound "x1/8" x 1" deep extending upwards under the skin on the back of the head sustained by Nazir Hussain is on a vital part of the body, although it did not cause any grievous hurt. Such injury on the vital part of the body must have caused a reasonable apprehension in the mind of Nazir Hussain that his life was in danger or his body in risk of grievous hurt. Accordingly, he had the right of private defence of his person which, under Section 100 of the Penal Code, extended to the causing of death of Mehraj Din."

12. There is no cavil to the proposition that the prosecution while producing evidence did not prove the ingredients of Section 34 P.P.C. as no witness appeared in trial to substantiate that either the appellant had preparation or pre-concert for committing the offence and both the parties had tried to hide the truth and to minimize their own roles as from complainant's side four persons had received injuries while from the appellant's side two person were present and both had sustained injuries, however, it is not clear from the evidence that who was aggressor and who was aggressed upon, thus, we cannot believe the stories advanced by both the rival parties and the learned trial court had reconstructed the story and had observed that the case in hand was a case of a free fight entailing individual liability of each accused person. We have, however, found that the truth in this case was mixed very heavily with something which was untrue and both the parties to this case had not approached the court with clean hands. In these circumstances we have found it to be impossible to discern the truth from such a heap of falsehood and, thus, we are left with no other option but to acquit the appellant from the charges by extending him the benefit of doubt. In this respect reliance may here be placed on the judgment delivered by Hon'ble Supreme Court of Pakistan in the case of "Rajmeer Khan and another v. Noor-ul-Haq and others" reported as 2019 SCMR 1949.

13. In view of what has been discussed hereinabove, we, while extending the benefit of doubt to the appellant, set-aside his conviction and sentence recorded by learned trial court vide impugned judgment dated 25.03.2024 and acquit him of the charges levelled against him. He bet set free from Jail forthwith, if not required in any other case. These are detailed reasons for our short order of even date. JK/182/P Appeal allowed.