2026 PLP 47 (SCMR)

MALIK SHAHZAD AHMAD KHAN, J.

The petitioner has sought leave against the judgment of the Peshawar High Court, Peshawar dated 26.06.2019. Imran petitioner being juvenile was tried by the learned Additional Sessions Judge-II/JJC, Swabi, pursuant to a case FIR No. 100 of 2013 dated 02.02.2013, registered at Police Station Kalu Khan, District Swabi for offences under sections 302/34 P.P.C. The Trial Court vide judgment dated 13.05.2015 convicted the petitioner under Section 302(b) P.P.C. and sentenced him to imprisonment for life as Ta'azir. He was also directed to pay compensation amounting to Rs.100,000/- to the legal heirs of the deceased as envisaged under section 544-A Cr.P.C., or in default thereof to further undergo simple imprisonment for six months. Benefit of Section 382-B Cr.P.C. was also extended in favour of the petitioner. The High Court vide impugned judgment dated 26.06.2019, upheld the judgment of the Trial Court.

2. Arguments heard. Record perused.

3. As per contents of the FIR, on 02.02.2013, at about 12.30 p.m (noon), Muhammad Ishq (Ishaq Ali) complainant (PW-9), along with Rehman Ali (PW-10) and his brother namely Wasir Ali (deceased), was present at his Arhat (Daira), situated in his agricultural land. In the meanwhile, Imran (petitioner) and Taur (co-accused), came there while armed with firearms and started firing at Wasir Ali (deceased), who received firearm injuries and succumbed to the said injuries at the spot. The motive behind the occurrence was that there was a dispute regarding amount of cement blocks between the deceased and the accused, hence the FIR of this case.

4. We have noted that Imran (petitioner), was admittedly a minor of the age of 17 years at the time of occurrence and due to his minority, he has been tried by the Juvenile Court. It is further noteworthy that the motive was jointly alleged against Imran (petitioner) and Taur (co-accused), that they had a dispute regarding the amount of cement blocks with the deceased. It was not brought on the record that as to whether Wasir Ali (deceased), had to pay any amount to the petitioner and his co-accused or the petitioner had to pay any amount to the deceased. It was also not stated that who out of the two (02) accused or the deceased was running the business of sale and purchase of cement blocks. Rather Ishaq Ali complainant (PW-9). admitted during his cross-examination that neither the deceased nor the accused were having any business of blocks. Relevant part of his statement in this respect reads as under:- .The deceased Wasir was not having any business of blocks. Similarly the accused were also not having any business of blocks etc . The specific amount, which was the bone of contention between the parties has also not been brought on the record. A vague and ambiguous motive was alleged by the prosecution witnesses. As mentioned earlier, the petitioner was a minor of the age of 17 years, at the time of occurrence, therefore, it is not expected that he was running the abovementioned business at such a tender age. We are, therefore, of the view that the motive as alleged by the prosecution has not been proved in this case against the petitioner.

5. Insofar as the recovery of pistol at the pointing out of the petitioner and the positive repot of FSL (Ex.PK/1), are concerned, we have noted that the empties and the pistol were deposited together in the office of FSL, therefore, the said recovery and positive report of FSL are of no avail to the prosecution as observed in the cases reported as "Abdul Wahid v. The State" (2023 SCMR 1278) and "Sarfraz v. The State" (2023 SCMR 670).

6. After taking out of the consideration the prosecution evidence qua the motive and recovery of pistol from the possession of the petitioner, we are left with the ocular account of the prosecution and the medical evidence. In this respect, it is noteworthy that although it was alleged in the FIR that the prosecution eye-witnesses were present at the time of occurrence at their Arhat (Daira), situated in their lands but no such Arhat (Daira) of the complainant party has been shown in the site plan (Ex.PB). Even any land owned or possessed by the complainant party has also not been shown in the site plan rather as per site plan, the occurrence took place in the agricultural land owned by one Safdar Khan and one Muhammad Afsar. Although Muhammad Ishaq (Ishaq Ali) complainant (PW-9), stated that his house was situated in Mohallah Gohar-abad, which might be at a distance of 500 paces from the place of occurrence but the other eye-witness namely Rehman Ali (PW-10), had stated during his cross-examination that the distance between his house and the house of the complainant can be covered within ten (10) minutes by foot and the distance between the place of occurrence and the house of the complainant might be covered within thirty (30) minutes by foot, which means that the house of the complainant and the abovementioned eye-witness were situated at a considerable distance from the place of occurrence. As mentioned earlier, neither the Arhat (Daira) nor the agricultural land of the complainant party or eye-witness namely Rehman Ali (PW-10), has been shown in the site plan, therefore, the abovementioned witnesses were chance witnesses. The reason of their presence at the spot at the relevant time has not been established in this case because their Arhat (Daira)/agricultural land, is not shown in the site plan. In the light of above, the evidence of Muhammad Ishaq (Ishaq Ali) complainant (PW-9) and Rehman Ali (PW-10), is not worthy of reliance as observed in the judgments reported as "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) and "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142).

7. We have further noted that a joint role of making fire shots was assigned to Imran (petitioner) and Taur (co-accused since P.O). No specific injury on the body of the deceased was attributed to Imran (petitioner). As per postmortem report (Ex.PM), there were eight (08) entry and eight (08) exit wounds on the body of the deceased and all the entry wounds on the body of the deceased were of the same size i.e., 1/4 x 1/4 inches, which fact shows that one firearm was used in this case to commit the murder of Wasir Ali (deceased) and the occurrence was committed by one person. As mentioned earlier, no specific injury was attributed to Imran (petitioner) and a joint role of causing firearm injuries was attributed to Imran (petitioner) and Taur (co-accused), therefore, it is not determinable in this case that as to whether the above-mentioned injuries on the body of the deceased were caused by Imran (petitioner) or Taur (co-accused since P.O), which fact created a serious doubt in the prosecution case, hence the petitioner is liable to be acquitted while extending him the benefit of doubt. We may refer here the case "Farman Ali and 3 others v. The State" (PLD 1980 Supreme Court 201), wherein at page No.205, this Court has held as under:- .The fact that the deceased was found to have suffered seven inlet wounds, three of them in his left Knee joint, one on his left elbow, two in his abdomen and one in backward direction to his right superior iliac spine, the inlet -size of all of which is said to be the same, would go a long way to show that this could as well be the work of a single person and not of the three appellants. There is no evidence on the record to show, however, as to which one of the three had caused him the said injuries, therefore, no option is left but to hold that the prosecution has failed to bring home its case against any one of the appellants .

8. Insofar as the medical evidence is concerned, it is by now well settled that the medical evidence is only supportive evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 Supreme Court 53), "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103) and "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410).

9. It is lastly argued by learned Additional Prosecutor General that the petitioner remained an absconder in this case, which also corroborates the prosecution case. In this respect, it is noteworthy that when a person is named as a murderer in a case, whether rightly or wrongly, he usually becomes scared and tries to conceal himself in order to avoid possible police torture and detention, therefore, mere abscondence of an accused by itself is not sufficient to maintain his conviction and sentence in absence of other reliable evidence. Reference in this context may be made to the judgments reported as "Liaqat Hussain and others v. Falak Sher and others" (2003 SCMR 611) and "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298).

10. Keeping in view all the aforementioned facts, we have come to this irresistible conclusion that the prosecution has failed to prove its case against the petitioner beyond the shadow of doubt. It is by now well settled that if there is a single circumstance, which creates doubt in the prosecution case then the same is sufficient to acquit the accused, whereas the instant case is replete with number of circumstances, which have created serious doubts in the prosecution story. Reference in this context may be made to the judgments reported as "Tariq Pervez v. The State" (1995 SCMR 1345) and "Muhammad Akram v. The State" (2009 SCMR 230). Consequently, this petition is converted into an appeal and allowed. The judgments of the High Court dated 26.06.2019 and the Trial Court dated 13.05.2015, are hereby, set-aside. The petitioner is acquitted of the charge while giving him the benefit of doubt. He shall be released from the jail forthwith unless required to be detained in any other case. JK/I-19/SC Appeal allowed.