2025 PLP 1702 (YLR)

Sahibzada Asadullah, J.

Through this single judgment, this court is intending to decide the instant appeal as well as connected Cr.R No. 291-P/2023 titled "Bacha Rehman v. Aurangzeb etc." as both the matters are arising out of one and the same judgment dated 31.10.2023 passed by the learned Additional Sessions Judge-V, Swabi delivered in case FIR No. 376 dated 29.04.2021 under sections 302/324/148/149/337-F(iii)/337-F(iv), 337-F(v). 337-A(iii) P.P.C, 15-AA KPK at Police Station Kalu Khan, District Swabi, whereby the appellants Aurangzeb son of Said Qamash and Asim son of Raham Zeb were convicted and sentenced as under: i. Under section 302(b) P.P.C to imprisonment for life each and to pay compensation of Rs.2,00,000/- (two lac) each to be paid to the legal heirs of each deceased within the meaning of section 544-A Cr.P.C and in default of payment, they shall further suffer simple imprisonment for three months. ii. Under sections 148/149 P.P.C to imprisonment for three (03) years each. iii. Under section 324 P.P.C for attempting at the lives of complainant and three other injured, to simple imprisonment for five (05) years each. iv. Under section 337-F(iii) P.P.C for causing injuries to injured Hasnad, to imprisonment for one (01) year S1 each and to pay Daman amounting to Rs.100,000/- each to injured and till payment of the daman, the sentences of the convicts shall be deemed to be simple imprisonment. v. Under section 337-F(iv) for causing injuries to Shah Hussain, to imprisonment for one (01) year SI each and to pay Daman amounting to Rs. 100,000/- each to the injured Shah Hussain and till payment of the daman, the sentences of the convicts shall be deemed to be simple imprisonment. vi. Under section 337-F(v) for causing injuries to Bacha Saeed, to imprisonment for one (01) year SI each and to pay Daman amounting to Rs. 100,000/- each to injured and till payment of daman, the sentences of the convicts shall be deemed to be simple imprisonment. vii. Under section 337-A(iii) P.P.C for causing injuries to Bacha Rehman, to imprisonment for one (01) year Si each and to pay Arsh equal to 10% of Diyat amount. viii. Under section 15AA KPK, convicted the appellant Asim to imprisonment for three (03) years with fine of Rs. 50,000/-. In default of payment of fine, to further undergo one (01) month SI. Benefit of section 382-B Cr.P.C was extended in favor of the appellants. All the sentences so awarded shall run concurrently.

2. Facts forming the background of the instant case are that on 29.042021 injured complainant Bacha Rehman reported the matter to the effect that yesterday at Asr Villa, an altercation took place over the damaging of crops between them and the opposite party; that on the day of occurrence, the accused party Sana-ul-Haq and Suleman sons of Wilayat-ul-Haq, Wilayat-ul-Haq, Amin-ul-Haq and Ihsan-ul-Haq sons of Khan Sahib, ljaz-ul-Haq and Izaz-ul-Haq sons of Amin-ul-Haq, Aurangzeb son of Said Qamash, Adnan and Asim sons of Raham Zeb, Gul Haider son of Jehanzeb, duly armed with deadly weapons, at the fields of Muqeeb-ul-Haq situated at Dandoona Wand Turiandi were present; that he along with his father Shamaoon, brothers Shah Hussain and Bacha Said, nephews Hasnad and Sajjad Ali (deceased) were heading towards the fields and when reached to the place of occurrence, the accused who were already present there with their respective firearms, started firing upon the them as a result of which his father Shamaoon, brothers Shah Hussain and Bacha Saeed, nephew Hasnad got hit and received firearm injuries whereas, his nephew Sajjad Ali died on spot; that motive behind the occurrence was verbal altercation hence, the present FIR. It is pertinent to mention that the injured Shamaoon breathed his last in the hospital.

3. After completion of investigation, complete challan was put in 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 16 witnesses. After closure of prosecution evidence, statements of accused were recorded under section 342, Cr.P.C., wherein the accused 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 and sentenced the appellants vide the impugned judgment, hence, instant appeal.

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 shocking incident had a tragic end, as two lost their lives from one side, one from the other, whereas many more got injured. The dead body of the deceased Sajjad along with the injured was shifted to the hospital, where the complainant reported the matter. The injury sheets and inquest reports were prepared, the injured were examined by the doctor, their medico legal certificates were prepared. The dead body of the deceased Sajjad was sent for postmortem examination. The injured after availing the facility of initial treatment, were referred to Mardan Medical Complex, Mardan, but the unfortunate deceased i.e., Shamaoon, could not survive and breathed his last. The dead body was transmitted back to Civil Hospital, Kalu Khan, and the autopsy on his dead body was carried out. The tragedy did not end here, rather another injured namely Amin-ul-Haq, was collected from the spot, shifted to the hospital where he reported the matter which was noted down in the shape of DD No. 30 of the even date. His injury sheet was prepared and thereafter, was examined by the doctor, who prepared his medico-legal certificate. This injured was shifted to the same hospital, at Mardan, to which the remaining injured were shifted, he remained hospitalized for few days, but unfortunately, he lost the battle between life and death, so after his death, his dead body was brought back to the hospital of the area where autopsy on his dead body was conducted.

6. The investigation officer after receiving copy of the FIR, visited the spot and on pointation of the eye-witness prepared the site plan. During spot inspection, certain recoveries were made, the details of the same is found in the impugned judgment. When the complainant got discharged from the hospital, he verified the site plan which had already been prepared on the pointation of a witness namely Saddam. The appellants were arrested, they were committed for trial and on conclusion of the trial, the learned trial Court was pleased to convict and sentence them vide the impugned judgment. We deem it essential to highlight that one of the accused charged in DD No. 30, namely Shamaoon died on the day of incident, so to his extent, the matter could not proceed, whereas his son namely Bacha Said alias Usaid, faced the trial and on conclusion of the trial, he earned acquittal, which too, has been questioned through the connected criminal appeal.

7. The learned trial Court took pain to dig out the truth and to fix the liability. It was after thread bare discussion that the learned Court below found the appellant guilty and as such, he was convicted and sentenced vide the impugned judgment. We are sanguine that the tragic incident claimed the lives of three innocent persons and numerous got injured, but we are also conscious of the fact that not only the complainant party is the worst sufferer, rather the accused party also suffered great damage when one got killed from their side. If on one hand the seat of injuries would tell of the presence of the injured witnesses on the spot, then at the same time, the witnesses are to tell that the incident occurred at the stated time and in the stated manner. We cannot close our eyes to the tragic death of the deceased Amin-ul-Haq as well, as he received an injury in the same transaction, so we are to appreciate that who killed him and that in what manner. As this particular matter requires deep appreciation, so we are inclined to take into consideration the attending circumstances of the present case and the damage caused and received to and by both the parties, as by doing so, we would be able to rescue the innocent and to punish the guilty.

8. As by then, the deceased Amin-ul-Haq was alive, so it was he who reported the matter and that on his death his report got the status of dying declaration. As after receiving initial treatment the deceased was shifted to the same hospital to which the remaining injured were shifted, and remained hospitalized for as many as 06 days, so this Court is to see that whether it was he who reported the matter and that at the time of report he was capable to talk. As in respect of the same incident, two versions are available on record, so we are inclined to take the same into consideration and we are to appreciate that who was the aggressor and that who was aggressed upon. We are further to see that when as many as 11 accused were charged, whether the incident occurred in the manner as was disclosed and that whether all the accused were responsible for the tragic incident. Keeping in view the peculiar circumstances of this case, we deem it essential to look for the individual and collective liability of all concerned, so that the matter could be decided in accordance with law and in light of the evidence collected and statements recorded.

9. The points for determination before this Court are as to whether the incident occurred in the mode, manner and at the stated time; as to whether the complainant received injury in the same transaction and that it was he who reported the matter; as to whether the witnesses remained consistent qua involvement of the appellants and others, regarding their participation in the incident; 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. This Court is to ascertain the evidentiary value of the report penned down in the shape of DD No. 30 and also the fact that how the deceased Amin-ul-Haq received a firearm injury and that who was responsible for the same.

10. We are desirous to appreciate the peculiar circumstances of this case, so for doing the same, we deem it necessary to scan through the statements of the witnesses and to look into the motive which turned to be the cause of the incident. The complainant was examined as PW-11, whereas the eye-witness as PW-12. The complainant disclosed that on the day of incident, he along with others was on his way to the fields; that on reaching to the spot, the accused were present duly armed; they started firing as a result he along with others got injured, whereas the deceased Sajjad died on the spot; that the dead body along with the injured was collected from the spot, shifted to the hospital where he reported the matter. The eye-witness toe the line and as such, the witnesses were put to searching cross-examination. The witnesses highlighted that previous altercation was the cause for the tragic incident and that all the accused fired which resulted into the death of the deceased and in injuries to the remaining witnesses. As the unfortunate incident also claimed the life of one Amin-ul-Haq, so this Court is to see that how he received the firearm injuries and that how was he shifted to the hospital. As both the parties suppressed the injuries caused to each other, so this Court is to see as to whether the concealment of material facts would prove the dishonesty of all concerned and that the same could be taken into consideration for determining the responsibility and culpability of the involved accused. The unfortunate incident occurred in a field situated in front of the house of the deceased Amin-ul-Haq, so this Court is to see as to who was the owner and who was not. The Investigating officer though prepared the site plan on the pointation of one Saddam, yet he could not record the statement of any independent witness in respect of the ownership of the property and he failed to collect the relevant record in that respect. The site plan depicts various places assigned to various persons from both the sides, so this Court is to assess that whether the incident occurred in the manner as was disclosed or that the actual facts were suppressed for reasons best known to the parties. The site plan was prepared on the pointation of PW Saddam, the same was verified by the complainant when he got discharged from the hospital, but interestingly, while reporting the matter no specific role was given to the accused charged, rather it was PW Saddam who during spot pointation specified the individual role of each accused. It is pertinent to mention that PW Saddam was not produced, rather it was the complainant who appeared, his statement was recorded and as such his report is in conflict with the site plan, as the site plan contains the detail of the individual role of every individual accused, but the report does not contain such a specification. The Investigating officer during spot inspection collected an empty, a live cartridge and a misfired cartridge of 222 bore, similarly an empty, a live cartridge and a misfired cartridge of .30 bore, along with an empty of 12 bore, but he could not collect more empties from the spot as, as many as 11 accused were charged. Had all the accused fired, then the Investigating officer would have collected many empties from the spot and the deceased as well as the injured would have received multiple firearm injuries. It is interesting to note that apart from the empties, live and misfired cartridges were collected from the spot, so the same indicates that both the parties entered into a free fight followed by the firing. The parties assaulted each other, but the witnesses remained silent on this particular aspect of the case. When the Investigating officer put his appearance before the Court, he confirmed that during spot inspection, he noticed the marks of struggle and his this confirmation has confirmed free fight between the parties. We want to explain the individual role given to each accused and we want to explain that which of the accused caused injury to which of the injured and that which of the deceased lost his life at the hands of which of the accused. In order to explain the individual role of every accused and the injury caused, we deem it essential to look into the site plan. The site plan depicts the presence of accused Sana-ul-Haq at point No. 01 from whose fire shot the complainant received an injury. For the death of the deceased Sajjad, the absconding co-accused Wilayat and Suleman were charged, as the deceased Sajjad is shown present at point No.

02. Similarly, the deceased Shamaoon is shown present at point No. 03 who was fired at by the deceased Amin-ul-Haq. The site plan further explains that the injured Shah Hussain who was present at point No. 04 was fired at by the accused Ijaz-ul-Haq and Izaz-ul-Haq. Apart from the above injured and deceased, we deem it essential to note the presence of the injured Bacha Said at point No. 05 and to two of the accused i.e., Adnan and Asim (the appellants) the role of firing is given at him. Last but not the least, at point No. 06, the injured Hasnad is shown to receive firearm injuries at the hands of the accused Aurangzeb (the appellant) and the absconding co-accused Gul Haider. The prosecution got examine only two witnesses out of the injured, but interestingly the learned trial Court convicted and sentenced the appellant for the injuries caused to all the injured whether examined or not examined. The learned trial Court committed an illegality while convicting the appellants for the injuries caused to the injured who did not appear before the learned trial Court and that by doing so, the appellants have not been treated in accordance with law. As the injuries of the injured were attributed to specific accused, so under these circumstances the learned trial Court should have dealt with the matter in accordance with the allegations levelled and in accordance with the role played by each accused. It is settled that once an injured witness does not appear before the trial Court in support of his claim, then no conviction can be awarded for the injury caused to him. As in the incident 11 accused are charged, so this Court is to see as to whether the number of injuries commensurate with the number of caused and that whether the prosecution succeeded in convincing that they came to the spot with a common mind and with a common object. As the motive was alleged an earlier quarrel between the parties, when the crop of the complainant party was damaged, so this Court is to see that what interest all the accused had in the property and that whose ownership the property was. As nothing was brought on record by the witnesses to substantiate their claim of the property, and as the Investigating officer could not collect revenue record in that respect, so this Court is inclined to hold that the complainant could not succeed in proving his property on the spot and once it got established that they had no property near or at the place of occurrence, then the participation of all the accused and the visit of the complainant of his property does not appeal to a prudent mind. The site plan was prepared on the pointation of PW Saddam but astonishingly the same witness was not produced, so the evidentiary value of this witness has lost its utility. This Court is to see that how the incident occurred and that how the matter was reported. As admittedly, the complainant in his report charged the accused for indiscriminate firing and no specific role is given, and as in the site plan every accused is charged for a specific injury caused and every accused was shown duly armed, so when the site plan, that too, verified from the complainant is juxtaposed with the report of the complainant, no ambiguity is left that these are in conflict. Once the complainant verified the prepared site plan, he admitted the same as correct, so the conflict between the site plan and the report has questioned the integrity and reliability of this witness. Though, the site plan was prepared on the pointation of one Saddam, but he was not produced. In order to appreciate as to whether PW Saddam was present when the incident occurred and that he was available on the spot when the Investigating officer arrived, we went through the statement of one Haseeb Ullah, who was examined as PW-09 who too witnessed the recoveries, explained that he along with PW Saddam and one Ashfaq reached to the spot after the occurrence; and on reaching to the spot, the Investigating officer was present. This witness did not support the presence of PW Saddam on the spot at the time of occurrence and even he did not confirm that the site plan was prepared on the pointation of that witness. On one hand, PW Saddam was abandoned, whereas on the other the witness did not support his presence on the spot, so this particular aspect of the case has damaged the prosecution case beyond repair. We are conscious of the fact that the prosecution has the choice to produce the witnesses it likes, but at the same time when the best available witness is withheld, then an inference can be drawn that the witness, if produced, would not support the case. As on one hand PW Saddam was the most important witness, whereas on the other, as many as 03 injured witnesses were not produced, so this Court is under the obligation to take the same into consideration. Reliance is placed on case titled "Abdul Qadeer v. the State" reported as 2024 SCMR 1146, the relevant is reproduced below: - "

15. Under Article 129 (g) of the Qanun-e-Shahadat Order, 1984 the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. Hence, adverse inference is drawn to the effect that had the above witnesses been produced at the trial, they would have not supported the prosecution case. Reliance in this regard is placed on the cases of "Muhammad Jabran v. The State"1 and "Mst. Shahnaz Akhtar v. Syed Ehsan ur Rehman".

11. As many accused were charged, so this Court is to appreciate that whether all the accused came to the spot with the same purpose, that too, by forming an unlawful assembly. As the complainant gave the general role of firing to all the accused, whereas the eye-witness specified the roles of the accused charged, when the site plan was prepared on his pointation, so the conflict between the two has put this Court on guard, to look for independent evidence and to consider the circumstances of the case. As the number of injuries do not commensurate with the number of accused and as the collected empties from the spot belies the stance of the complainant, so we are confident in holding that the number of accused has been exaggerated. In this regard, wisdom can also be derived from the judgment rendered in case titled "Malik Aamir Sultan and 02 others v. The State and another" (2018 MLD 1635) wherein it was held that: "The number of injuries does not commensurate with the number of accused party. More so, all the injuries bear one and the same dimension. It reflects that it is the job of one person but in order to throw the net wide, the number of accused has been exaggerated as three brothers and two unknown accused have been charged.

12. The Investigating officer at the time of spot inspection observed marks of struggle over the ground, and the recovery of live and misfired cartridges has further substantiated the fact of free fight between parties followed by the unfortunate incident. Once it is observed that the parties had a free fight, then the Court could see the individual liability of the accused charged. When the individual liability is to be determined, then this Court is to see that what injury was caused by which of the appellant and to whom. The appellant Asim is charged for the injury caused to Bacha Said, a witness not examined, whereas for the injury caused to Hasnad, the appellant Aurangzeb along with the absconding co-accused is charged, so this Court is to see their role and involvement with the injuries caused and specified to them by the abandoned eye-witness, as it was on his pointation that the site plan was prepared and the same was verified by the complainant. None of the appellant was charged for the injuries caused to the deceased. Appellant Asim is charged for the injury caused to an injured not produced, so in case of his non-appearance before the Court, no conviction can be awarded, that too, when every accused is held individually liable for the role he played. As for a single injury caused to the injured Hasnad, the appellant Aurangzeb is charged along with another, so the prosecution could not convince that who out of the two caused the same. This uncertainty has led us to conclude that the prosecution failed to connect the appellant Aurangzeb with the injury caused to PW Hasnad and the appellant Asim with the injuries caused to the unexamined injured. This uncertainty of events has caused a damage to the case of the prosecution, which despite efforts, the prosecution could not repair. Reliance is placed on the judgment titled "Rajmeer Khan and another v. Noor-ul-Haq and others" 2019 SCMR 1949), wherein, the apex court has held as under: "We have noticed that many of the acquitted accused persons from both the sides had been attributed active and effective roles but the stories in that regard had been disbelieved by the courts below. Both the parties had tried to hide the truth and to minimize their own roles. After disbelieving the stories advanced by both the rival parties the High 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 Mushtaq Khan appellant by extending the benefit of doubt to him."

13. The moot question for determination is that how the deceased Amin-uI-Haq received the firearm injury and that at whose hand. The counter version in the shape of DD No. 30 has removed the ambiguity, as it was the deceased then injured who reported the matter and for the injury caused to him, two accused i.e., the deceased Shamaoon and the acquitted accused Bacha Said alias Usaid were charged. The site plan depicts that the deceased Amin-ul-Haq was present at point No. 11 and from his place, the Investigating officer also collected blood stained earth. As he received a firearm injury in the same episode, so he was hurriedly shifted to the hospital where he reported the matter. It is established on record that he was present on the spot at the stated time and received a firearm injury in the same transaction. In the site plan, the injury caused to the deceased Shamaoon is attributed to the deceased Amin-ul-Haq, likewise the injuries to deceased Sajjad were attributed to the absconding co-accused Wilayat-ul-Haq, so the approach of the learned trial Court qua involvement of the appellants is based on misreading of evidence. The report of the deceased Amin-ul-Haq has clarified the circumstances and it tells that both the parties concealed material facts and this Court is confident in holding that the real facts have been suppressed. True that in counter version, the accused Bacha Said alias Usaid earned acquittal, but his acquittal under no circumstances would stop this Court from taking into consideration the circumstances of that particular case while appreciating the involvement or otherwise of the appellants of the present case. The learned trial Court was convinced with the acquittal of the accused charged in DD No. 30, so it focused mainly on the evidence collected against the appellants but we are afraid that the learned trial Court failed to appreciate the most crucial and the most essential aspects of the case. When the place of occurrence is the same, when people died from both the sides and when the motive was common to the parties, then the counter version can be and should have been taken into consideration. It was the uncertainty of events which led to the tragic incident and it was the concealment of facts which overshadowed the prosecution case, so if the accused could earn benefit of the same in DD No. 30, then the same benefit should have been extended to the appellants charged in the instant case.

14. The medical evidence is in conflict with the ocular account, as 11 accused are charged in the tragic incident, but the number of injuries do not commensurate with the number of accused, so the conflict between the two has created dents in the case of the prolcution. True that medical evidence is confirmatory in nature, but equally true that once the witnesses failed to convince, then the conflict between the two can be considered to the benefit of the accused, and the present case is no exception. Reliance is placed on the judgment of the apex court titled "Khial Muhammad v. The State" (2024 SCMR 1490), wherein, it has been held as under: "The State (1995 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048). The same view was reiterated in the case reported as Abdul Jabbar v. State (2019 SCMR 129) wherein it was held that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's.

15. The motive is given as an early altercation between the parties in respect of the damage caused to the crop of the complainant, but as the complainant could not prove the purpose of their presence on the spot and when no revenue record was collected, showing ownership of the complainant party, so this Court is inclined to hold that the prosecution failed to prove the motive. Neither the complainant could produce independent witnesses in support of its claim, nor the Investigating officer could record statement of any independent witness, so the failure of motive, that too, when it was the sole cause of killing would help the accused in earning acquittal. Reliance is placed on case titled "Iftikhar Hussain alias Kharoo v. The State" (2024 SCMR 1449), wherein, the august Supreme Court held as under: "As far as motive is concerned, same stands disproved. Since, no evidence was produced by the prosecution to substantiate the motive of the accused to commit the murder of the deceased, specifically in light of the fact that, petitioner/ accused has no previous enmity with the complainant party, therefore motive set up by the prosecution in the FIR was disbelieved by the High Court."

16. The cumulative effect of what has been stated above leads this Court to an irresistible conclusion that the prosecution failed to bring home guilt against the appellant, and the learned trial Court while handing down the impugned judgment, misdirected itself both in law and on facts, so the same calls for interference. The impugned judgment is set aside, the appellants are acquitted of the charge, they shall be released forthwith, if not required to be detained in any other case.

17. Now diverting to the Criminal Revision No. 291-P/2023, which has been filed by the complainant for enhancement of the awarded sentence, as the accused succeeded in earning acquittal and the impugned judgement is set aside, so the instant criminal revision has lost its utility, the same is dismissed as such. Above are the detailed reasons of our short order of even date. JK/38/P Appeal allowed.