2026 PLP 625 (YLR)

Salah-ud-Din, J.

Through this single judgment, we intend to decide instant Criminal Appeal bearing No. 203-M of 2024 titled "Liaqat Ali v. State and another" as well as connected Criminal Appeal bearing No. 204-M of 2024 titled "Jawad Ali v. State and another" Criminal Appeal bearing No. 221-M of 2024 titled "Haji Nawab v. Ahmad Ali and another" and Criminal Revision bearing No. 51-M of 2024 titled "Haji Nawab v. Jawad Ali and another", as all these connected matters are by-product of one and the same FIR No. 734 dated 19.9.2021, under sections 302,324,34 P.P.C, read with section 15-AA of P.S Daggar, District Buner. In ibid criminal case, upon conclusion of full-fledged trials qua major accused as well as juvenile offender, accused/appellants were convicted and sentenced as follows: - Appellant namely Liaqat Ali (major accused):- "Hence in view of above findings the prosecution has successfully proved the charge of committing qatl-e-amd of Aslam Khan deceased against accused Liaqat Ali beyond any shadow of reasonable doubt. So accused Liaqat Ali is hereby convicted under section 302 (b) of the Pakistan Penal Code and sentence him thereunder to death. He shall be hanged by neck till he is dead subject to confirmation of this conviction and sentence by august Peshawar High Court, Peshawar. The convict shall also pay Rs.2,00,000/- as compensation under section 544-A of the Criminal Procedure Code to the legal heirs of the deceased and in default he shall undergo six months imprisonment. The reference under section 374 Criminal Procedure Code be submitted before the august Peshawar High Court/Mingora Bench, Dar-ul-Qaza, Swat for confirmation of the death sentence. However, the sentence of death shall not be executed until the same is confirmed by the august Peshawar High Court/Mingora Bench, Dar-ul-Qaza, Swat.

21. As for as accused Ahmad Ali is concerned the complainant Haji Nawab (PW-12) in report through Murasila Ex.PW5/1 alleged accused Ahmad Ali carrying repeater 12 bore but from crime scene no empties of 12 bore were recovered; so that is why weapon recovered from him was not matched with empties recovered and sent to FSL for analysis. This is a material contradiction regarding the role of accused Ahmad Ali in the occurrence as from place of occurrence only 7 empty shells of 7.62 bore from point B and 2 empty shells of 30 bore from point C lying in scattered position at the spot were recovered as reflected from statement of the Investigating Officer Muhammad Hanif OII Police Station Daggar Buner (PW-14) who recovered empties vide recovery memo. ExPW8/1. Hence, prosecution has failed to bring home murder charge against accused Ahmad Ali, so by extending benefit of doubt accused Ahmad Ali is hereby acquitted of the murder charges in this case.

22. Accused facing trial namely Liaqat Ali was found guilty under section 15AA for having in possession of unlicensed Kalashnikov while accused Ahmad Ali is also found guilty under section 15AA for having in possession of unlicensed repeater, they are sentenced to undergo two years and six months each Simple Imprisonment with fine of Rs. 50000/- each and in case of default of payment of fine, they shall further undergo two months SI. The substantive sentences shall run concurrently. The accused are accorded the benefit of Section 382-B Cr.P.C.

23. As far as the sections 324 and 34 P.P.C are concerned, the same have not been proved against accused facing trial, hence, they are acquitted from the charges under sections 324 and 34 P.P.C.

24. Case property be kept intact till the expiry period of appeal/revision. Appellant namely Jawad Ali (juvenile offender):- Hence in view of above findings the prosecution has successfully proved the charge of committing qatl-e-amd of Aslam Khan deceased against accused Jawad Ali beyond any shadow of reasonable doubt. As far as the quantum of punishment is concerned, the age of accused Jawad Ali was about 15/16 years and his real brother Liaqat Ali is also awarded with death penalty in this occurrence in connected trial, so keep in view such mitigating circumstances while taking lenient view against accused facing trial being juvenile accused, life imprisonment is an appropriate punishment; hence, accused Jawad Ali is hereby convicted under section 302 (c) of the Pakistan Penal Code and sentence him for life imprisonment. The convict shall also pay Rs.2,00,000/- as compensation under section 544-A of the Criminal Procedure Code the legal heirs of the deceased and in default he shall undergo six months imprisonment.

22. Accused facing trial namely Jawad Ali was found guilty under section 15AA for having in possession of unlicensed pistol, he is sentenced to undergo two years and six months Simple Imprisonment with fine of Rs. 50000/- and in case of default of payment of fine, he shall further undergo two months Simple Imprisonment.

23. The substantive sentences shall run concurrently.

24. The accused is on bail, therefore, he be taken into custody and sent to jail to serve the above-mentioned imprisonment.

25. As far as the sections 324 and 34 P.P.C are concerned, the same have not been proved against accused facing trial, hence, he is acquitted from the charges under sections 324 and 34 P.P.C.

26. Case property be kept intact till the expiry period of appeal/revision.

2. Arguments of learned counsel for parties as well as learned Astt: A.G for State were heard and requestioned record gone through with their valuable assistance.

3. As per prosecution story, complainant namely Haji Nawab reported the matter to local police at emergency ward of Dagger hospital to the effect that on the fateful day, he (complainant) along with his uncle namely Tariq, nephew namely Awal Zada and son namely Aslam Khan (deceased) have gone to the nearby graveyard for offering funeral prayers .On return, when complainant-party reached to the place of occurrence, accused Liaqat Ali, Ahmad Ali and Jawad Ali (while being duly equipped with Kalashnikov, 12 bore repeater and pistol) were already present there. All the three accused started firing upon the complainant-party, as a result of which, son of the complainant namely Aslam Khan got hit on different parts of his body and died on the spot, whereas rest of the complainant-party comprising of three persons luckily escaped un-hurt. In addition to complainant, subject occurrence was witnessed by Awal Zada, Tariq and other inhabitants of the locality, present on the spot. Motive qua commission of offence was disclosed to be a dispute over woman-folk . In view of report of complainant 'Murasila' (Ex. PW-5/1) was drafted which culminated into ibid FIR (Ex. PA) registered against present appellants and other co-accused at P.S concerned.

4. First and foremost, this fact shall be kept in mind that as per initial report of complainant all the three accused i.e. present appellants Liaqat Ali, Jawad Ali and other acquitted co-accused Ahmad Ali have been assigned a general role of firing upon deceased and role of each and every accused has not been specified in terms that amongst the set of three assailants, allegedly armed with deadly weapons whose fatal shots proved effective causing death of the deceased. Likewise, as per site plan, Ex. PW-14/1, the inter-se distance between accused-party and that of complainant-party has been shown as 18 paces, however, despite such proximity complainant-party (comprising of three persons i.e. Haji Nawab, Tariq and Awal Zada) have not even received a single scratch on their bodies, especially, when there was no visibility obstacle or other place of hiding or shelter, in the target-zone of accused-party, therefore, the very story advanced by prosecution is not appealable to sanity. This aspect of the case becomes much more relevant when one of the appellants has been shown equipped with 12-bore repeater. A 12-gauge shotgun shell with pellets will spread after covering a distance of 05 yards. Keeping in view the inter-se distance between accused-party and that of complainant-party, it is almost next to impossible that how the complainant-party (comprising of three persons) has remained safe and sound on the spot, more particularly, when a 12-gauge shotgun shell spread pellets rapidly with much more velocity and force, prima facie leaving no chance for complainant-party to be escaped un-hurt, therefore, the ocular-account completely negates and nullify the version put-forward by alleged eye-witnesses of the occurrence.

5. On his own turn, complainant was examined in Court as PW-12. In his Court statement, he has come up with same narration of facts as was part and parcel of his earlier report with the only exception that on the day of occurrence complainant-party had participated in the funeral rituals of a lady and on their return the unfortunate incident of murder of his deceased son had taken place. At the same breath, he had also introduced the name of a new member of complainant-party i.e. his brother namely Saleem Khan, whose name was not cited by complainant in his earlier report in the shape of 'Murasila' followed by ibid FIR. His testimony before the Court was also adamant of the fact that all three accused including acquitted respondent have been saddled in their joint liability for causing death of the deceased. In his cross-examination, he deposed that thousands of people of the locality had attended funeral proceedings on the day of occurrence. He also clarified that there was hardly any distance existed in-between the venue of crime and funeral place . He also admitted that the occurrence has taken place after 2/3 minutes of offering of funeral rituals and at the relevant time numerous participants have been passing through the place of occurrence. There was an admission in his part to the effect that the place of occurrence is a road and on its eastern side there was a school in existence and at the relevant time 20 fire shots have been made. He also deposed that many shops were situated near the venue of crime. Same is the case with statement of another alleged eye-witness of the occurrence namely Tariq. He was examined in Court as PW-13. In his cross-examination, he deposed that the place of occurrence and graveyard are situated in close proximity. Here a logical question arises that how not even a single impartial or independent witness from the locality has spotted the accused-party near and around the place of occurrence, when admittedly the venue of crime and funeral place are situated in close proximity just at a walking distance of 2/3 minutes; when thousands of people of the locality had attended funeral rituals of a lady and above all when as per testimony of complainant round about 20 fire shots have been made by the accused-party, therefore, version of prosecution put-forward by these two alleged eye-witnesses of the occurrence is neither logical nor rational nor fit in the matrix of the case in hand.

6. From testimonies of both these alleged eye-witnesses of the occurrence, it is crystal clear that the place of occurrence is not only situated in a thickly populated area surrounded by road, school, houses and graveyard but at the relevant time just before 2/3 minutes earlier to the subject occurrence funeral proceedings of a lady had taken place which was attended by hundreds of people of the locality, then how it is possible that the accused-party comprising of three persons duly armed with deadly weapons could not be spotted by anyone, therefore, the very presence of these alleged eye-witnesses of the occurrence at the venue of crime is disputed in view of their unnatural conduct and demeanor. It is also a matter of record that if for the sake of arguments on the fateful day, complainant-party including deceased namely Aslam Khan have participated in the funeral prayers of a lady who was allegedly got murdered, then prosecution or for that matter complainant-party was bound to bring on record a copy of FIR or Naqal Mad of alleged murder of deceased lady, in order to prove their presence on the spot, however, the available record suggests otherwise. In a situation akin to present one, Hon'ble apex Court in case titled "Muhammad Hassan and another v. State and others" reported as 2024 SCMR 1427, has held that:- "Combined effect of the statements of the alleged eye-witnesses was that their presence at the scene at the relevant time was not natural. Therefore, it was mandatory for the said witnesses to justify their presence at the place of occurrence at the relevant time with some cogent reasons. In order to justify their presence, two of the witnesses asserted that they were employees of person "AH", a resident of the village where the alleged occurrence took place, but they did not produce any independent oral or documentary evidence to support this claim. Similarly, the complainant also did not justify his presence at the place of occurrence which was more than 100 kms away from his residence, especially when he admitted that he had no relation with the deceased. In light of the aforementioned facts, the alleged eye-witnesses could not justify their reasons for being at the place of occurrence at the relevant time." Sequence of events not appealing to reason. All the eye-witnesses uniformly stated that all ten accused persons, who were armed with deadly weapons, kept making indiscriminate firing, but they escaped by seeking cover behind the nearby trees. This sequence of events did not appeal to reason. Similarly, in case titled "Riasat Ali and another v. State and another" reported as 2024 SCMR 1224, Hon'ble apex Court has recorded somewhat similar observations by holding that: - "Unnatural conduct of prosecution witnesses created serious doubts about their presence at the place of occurrence with the deceased. Prosecution witnesses had not explained as to how they escaped firearm injuries despite indiscriminate firing by five accused persons from a close range. Said aspect also created doubt about presence of the alleged witnesses at the place of occurrence. It was not believable that by killing a person in presence of his close relatives, the petitioner (accused) would not attempt to cause any injury to the prosecution witnesses leaving them for giving evidence against him."

7. It is also a matter of record that the most relevant and important witnesses of the prosecution i.e. Awal Khan and Saleem Khan have been abandoned by the prosecution without any rhyme and reason. Needless to highlight, the name of Saleem Khan was though not mentioned in his initial report by the complainant, however, he was the verifier of his initial report, besides, both these witnesses were shown identifiers of dead body of the deceased at the hospital, therefore, from their non-appearance an adverse inference under Article 129 (g) of Qanun-e-Shahadat Order, 1984 could be inferred in terms that had these PWs been produced in Court, they would have not supported the case of prosecution. Reliance is placed on the Riasat Ali's case Supra, whereby in respect of utility of Article 129-(g) of Qanun-e-Shahadat Order, it was held that:- "Alleged eye-witness to the occurrence not produced during trial. Prosecution had not produced witness MN at the trial who was allegedly accompanying other alleged witnesses and deceased at the time of occurrence. Under Article 129(g) of the Qanun-e-Shahadat, 1984 adverse inference was to be drawn to the effect that had he been produced by the prosecution at trial, he would not have supported the prosecution case." Likewise, in case titled "Muhammad Rafique and others v. State and others" (2010 SCMR 385), wherein it was observed that: - "It is well-settled that if any party withholds the best piece of evidence, then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali would have been examined, his evidence would have been unfavorable to the prosecution."

8. A bare look of impugned judgments, rendered in two separate trials would reveal that appellants have been acquitted of the charge of attempt to commit murder within the meaning of section 324 P.P.C, therefore, this element also discard and dilute the very presence of alleged eye-witnesses of the occurrence on the spot, otherwise, prosecution would have brought on record confidence inspiring evidence to this effect, which is not the case here. In case titled "Khan Bahadur Khan v. State and another" reported as 2014 YLR 628, this Court has held as follows: - "Complainant and other eye-witness had furnished the ocular account, but on material points they were not consistent with each other. Both said eye-witnesses had made certain improvements in their court statements; S.324, P.P.C. was inserted in the FIR., but Trial Court had acquitted accused from said charge, which would mean that Trial Court was also not sure about their presence. Presence of said two eye-witnesses, appeared to be doubtful.

9. It would not be out of place to mention here that on the same set of evidence, co-accused namely Ahmad Ali has been acquitted by learned trial Court by extending him benefit of the doubt despite the fact that he was assigned effective role of firing upon the deceased, as was ascribed to his co-appellants, therefore, such approach of learned trial Court is not digestible in view of the peculiar facts and circumstances of the subject event. In case titled "Muhammad Ashraf alias Acchu v. State" reported as 2019 SCMR 652, it was held by Hon'ble apex Court that "direct evidence of complainant and another witness had been disbelieved up to the Supreme Court to the extent of co-accused, therefore, it was of paramount importance to see as to what independent corroboration was available on record to distinguish the case of accused from that of his acquitted co-accused."

10. So far as medical evidence is concerned, needless to highlight that medical evidence may confirm direct or ocular-account, if any, with regard to set of injuries, kind of weapon allegedly used in commission of an offence and at least nature of injuries, however, in present case, when ocular-account furnished by alleged eye-witnesses of the occurrence is not confidence inspiring, then evidentiary value of medical evidence qua guilt of appellants as a sole piece of corroboratory evidence cannot be given much weight and worth. Reliance in this regard is placed on case titled "Abdul Rashid v. State" reported as 2019 PCr.LJ 1456, whereby it was held that: - "The medical evidence in this case has been furnished by PW-4 Dr. Nasreen Ahmad Tareen, Medical Officer, who has confirmed the unnatural death of deceased. However, the fact remain that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove their culpability. Reliance in this regard can be placed on the case of "Muhammad Sharif and another v. State" (1997 SCMR 866). In context of subject case, medical evidence has been furnished by Dr. Mubashir. He was examined in Court as PW-3. Upon examining dead body of deceased, he carved-out his P.M report, Ex. PW-3/1, comprising of 06 sheets. Likewise, inquest report was placed on file as Ex. PW-3/2 along with injury sheet as Ex. PW-3/3. In his cross-examination, he deposed that he has not mentioned the dimension and size of wounds present on the dead body of deceased. At the same breath, he also spotted charring marks around entry wounds of the deceased. Moreover, dead body of deceased was identified in the hospital by PW Saleem Khan instead of complainant namely Haji Nawab, who was none else but real father of the deceased Aslam Khan. As per prosecution version, deceased then alive has been fired upon by accused-party from different bore of weapons, therefore, non-mentioning of size and dimension of wounds is become much more relevant in a sense that it cannot be determined from medical evidence of the deceased that amongst the set of three assailants from whose deadly weapon he had sustained life-threatening injury, as such, ocular-account contradicts medical evidence.

11. So far as rest of corroboratory evidence furnished in the case in hand is concerned, as per prosecution three spent bullets have been shown recovered from dead body of deceased at the examination by doctor concerned. Said spent bullets were taken into possession vide recovery memo, Ex. PW-1/1. Likewise, through recovery memo, Ex. PW-8/1 seven crime empties of 7.62 bore were shown recovered from the place assigned to appellant namely Liaqat Ali, whereas two empties of 30-bore have been recovered from the place ascribed to accused Ahmad Ali. Similarly, at the time of arrest of appellant Liaqat Ali, the local police recovered weapon of offence i.e. Kalashnikov, along with fixed charger having 30 live rounds of 7.62 bore, whereas at the time of arrest of acquitted co-accused namely Ahmad Ali, the police recovered 12-bore repeater, along with fixed and spare chargers, having 10 live rounds of 12-bore. At the time of arrest of co-accused/juvenile offender namely Jawad Ali, the police recovered a 30-bore pistol bearing No. 3101225 (made in China), along with spare charger, having 12 live rounds of 30-bore, on the strength of recovery memo, Ex. PW-2/1. A bare look of FSL report, Ex. PW-14/17 would reveal that seven 7.62mm bore crime empties marked as C1 to C7 were fired from different 7.62mm bore weapons. Likewise, two 30-bore crime empties marked as C8 to C9 were fired from one and the same 30-bore weapon, however, no crime empty of 12-bore has been recovered from the spot during the course of investigation, in respect of the alleged 12-bore repeater/shotgun, recovered from possession of acquitted co-accused Ahmad Ali. Prosecution has also not been able to bring on record the FSL report in respect of the spent bullets recovered from dead body of the deceased at the time of his examination. As per contents of the FIR, the alleged occurrence of murder of deceased has taken place on 19.9.2021 at 15:00 hours, whereas as per card arrest memo, Ex. PW-2/1, the accused/appellants and other acquitted co-accused were shown arrested on 19.11.2021 i.e. after long delay of two months and that too from the nearby mountains, situated at a short distance of 40 kilometers from the police station concerned. First of all, it is not appealable to sanity that why the appellants would keep with them the alleged weapons of offence, after long two months of the occurrence knowingly that the said incriminating articles could be used against them during the course of trial, therefore, on this ground alone, mode and manner of the subject recovery of weapons of offence is shrouded in mystery. Moreover, the alleged crime empties of different bore have been sent to the laboratory for comparison on 20.11.2021 vide recovery memo, Ex. PW-14/13, however, FSL report, Ex. PW-14/19 would show that the same were received by FSL authorities on 22.11.2021, therefore, a high degree of doubt exists about its safe custody during the intervening period of two days. Even otherwise, blood-stained earth recovered from the spot, along with crime empties, if any, may prove the nature of death and the venue of occurrence but same circumstantial evidence alone would be of no help to the prosecution, in absence of trustworthy and confidence inspiring direct evidence against present appellants. Reference can be made to case law "Muhammad Afzal alias Abdullah and others v. State and others" reported as 2009 SCMR 639 and case titled "Imran Ashraf and 7 others v. The State" reported as 2001 SCMR 42. it is also a settled principle of law that only such circumstances should be accepted which on careful examination of evidence, found to be well-established. Wisdom in this regard is sought from "Naveed Asghar and others v. The State" (PLD 2021 SC 600) wherein it was further observed that a high quality of evidence was therefore required to prove the facts and circumstances from which inference of the guilt of the accused person was to be drawn. Hon'ble Supreme Court in another case titled "Altaf Hussain v. Fakhar Hussain" (2008 SCMR 1103) held that all the pieces of circumstantial evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused; absence of a single link will destroy the entire chain. Circumstantial evidence in the present case, being not of afore-mentioned standard, cannot be considered for maintaining conviction of appellants.

12. Likewise, it is a settled proposition of law that motive is a double-edged weapon which cuts both sides in the like manner, as such, false implication of appellants by complainant because of the motive so set up cannot be ruled out. Reliance is placed on 'The State v. Muhammad Sharif and others' (1995 SCMR 635) wherein it was held that: "So far as enmity is concerned, it is a double-edged weapon and cuts both ways. If it is considered as sufficient motive for commission of offence, it can also be considered as sufficient for false implication as well.

13. In view of above discussion, when neither any direct nor any circumstantial evidence is available on face of record, as such, case of prosecution is full of doubts all-around, therefore, appellants have to be extended its benefit.

14. It is well settled that it is not essential at all to place reliance on multiple doubts coupled with multiple grounds to extend the benefit of doubt to an accused, even a single worth reliable doubt is sufficient enough to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of "Tariq Pervaiz v. The State" reported as 1995 SCMR 1345, the Apex Court has held as under;- That the concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable. doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. Further reliance is placed on the judgments of apex Court cited as "Daniel boyd (Muslim name Saifullah) v. the State" (1992 SCMR 196), case titled "Ghulam Qadir and 2 others v. the State" (2008 SCMR 1221) and case titled "Muhammad Zaman v. the State" (2014 SCMR 749).

15. For what has been discussed above, this Court is of the firm view that prosecution has failed to prove its case against appellants namely Liaqat Ali and Jawad Ali, beyond reasonable doubt, therefore, their conviction cannot be maintained. Resultantly, while extending them benefit of doubt, both these connected Criminal Appeals bearing Nos. 203-M and 204-M of 2024 are allowed and impugned orders/judgments of conviction and sentence of even date i.e. 23.7.2024, recorded by learned trial Court as well as juvenile Court are set aside and consequently appellants named above are acquitted of the charges levelled against them. They be released forthwith from Jail, if not required in any other case. Murder Reference No. 04-M of 2024 in respect of appellant namely Liaqat Ali is answered in negative.

16. Since this Court has already allowed the criminal appeals preferred by both the accused/appellants against their conviction and sentence, therefore, the connected Criminal Appeal against Acquittal bearing No. 221-M of 2024 and Criminal Revision for Enhancement bearing No. 51-M of 2024, are become infructuous and same are also accordingly dismissed.

17. These are reasons for our short orders of even date. JK/221/P Appeals allowed.