2026 PLP 1255 (YLR)

Sahibzada Asadullah, J.

Through this criminal appeal, appellant Muhammad Tahir has questioned the judgment of the learned Additional Sessions Judge-II, Takht Bhai, District Mardan dated 14.03.2024 rendered in case FIR No. 777 dated 13.09.2016 under sections 302-324-337-A(ii)/337-F(v)/34 P.P.C read with section 15 AA registered at Police Station Takht Bhai, District Mardan whereby, the appellant was convicted and sentenced as under: i. Under section 302(b)/34 P.P.C to Imprisonment for life as Tazir and to pay a fine of Rs. 5, 00, 000/- (rupees five lacs) to be paid to the LRs of the deceased Wali Muhammad, within the meaning of section 544 -A Cr.P.C and in default whereof, he shall suffer six months simple imprisonment. ii. Under section 324/34 P.P.C for attempting at the lives of Javed, Shakir Ullah and Gul Ahmed to Rigorous Imprisonment for five years on three counts and to pay a fine of Rs.1,00,000/- (one lac) on three counts to be paid to Javid, Shakir Ullah and Gul Ahmad and in default whereof, he shall further suffer three months on three counts simple imprisonment. iii. Under section 337-A(ii)/34 P.P.C for causing injuries to Shakir Ullah and under section 337- F(v)/34 P.P.C for causing injuries to Javid to pay daman of Rs. 50,000/- to Shaikir Ullah and Rs. 2,00,000/- to Javid and in default of payment, he shall be kept in person till its payment. Punishment of imprisonment under sections 337 -A(ii)/34 P.P.C and 337- F(v)/34 was not awarded as the appellant is not hardened and desperate criminal in terms of section 337(n) P.P.C. iv. Under section 15AA to Rigorous Imprisonment for one month and to pay a fine of Rs.5,000/- (five thousand) and in default whereof, he shall further suffer ten days simple imprisonment. Benefit of section 382 -B Cr.P.C was extended in favor of the appellant. All the sentences shall run concurrently.

2. The prosecution story, as reflected in the murasila, is that on 13.09.2016, complainant Wali Muhammad reported the matter at MMC Hospital, Mardan, stating that earlier in the morning an altercation had taken place between his children and those of the accused; that thereafter, the complainant, along with Javid and Shakir Ullah were going to complaint, however, accused Muhammad Tahir and Sher Zameen, armed with firearms, started firing at them, as a result of which the complainant and Javid sustained firearm injuries; that after the firing, Shakir Ullah was assaulted with the butts of weapons, who also received injuries; that motive for the occurrence is stated to be the prior altercation between the children of both sides hence, the present FIR. It is pertinent to mention that on 14.09.2016, complainant/deceased then injured succumbed to his injuries, so section 302 P.P.C was added.

3. It is pertinent to mention that soon after the occurrence, the accused went into hiding and challan under section 512 Cr.P.C was submitted to the court however, it was upon arrest of the accused, that his supplementary challan was put in court. Provisions of section 265-C Cr.P.C were complied with and, the appellant was charge sheeted, to which he pleaded not guilty and claimed trial. In order to prove its claim, the prosecution produced and examined as many as 12 witnesses. After closure of prosecution evidence, statement of appellant was recorded under section 342 Cr.P.C, wherein he posed innocence, however, neither he 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 appellant vide the impugned judgement hence, this appeal.

4. Arguments heard and available record scanned through.

5. The occurrence was undoubtedly tragic, resulting in the death of one person, injuries to two others. After the incident, all the injured were shifted to the hospital, where the matter was reported by the complainant/ deceased then injured. The injury sheets were prepared, the injured were medically examined, and their medico-legal certificates were issued. On the following day of the occurrence, the complainant then injured Wali Muhammad, succumbed to his injuries, whereupon Section 302 P.P.C was subsequently incorporated in the case. After receiving copy of the FIR, the Investigating Officer visited the place of occurrence and, on the pointation of the eye-witness, prepared the site plan. During spot inspection, 04 empties of .30 bore were recovered from the place attributed to accused, whereas 03 empties of 7.62 bore were secured from the spot allegedly connected with the absconding co-accused. Blood-stained earth was also collected from the scene. The recovered empties were forwarded to the firearms expert, and the recovered pistol was also examined, whereafter a report was issued confirming that the weapon was in working condition. Subsequently, the accused went into hiding. After a considerable lapse of time, the appellant was apprehended by the police in Swat and was later handed over to Police Station Takht Bhai after obtaining transit remand from the competent court. Upon his pointation, a .30 bore pistol was recovered from his house and taken into possession through proper memo. After completion of investigation, the accused was sent up for trial and, after conclusion thereof, was convicted and sentenced vide the impugned judgment. It is pertinent to mention that this matter had earlier come up before this Court. However, while dictating the judgment, the need was felt for reassessment of the evidence. Consequently, the parties were directed to reappear, and the case was heard afresh.

6. The learned trial court, after taking into consideration the essential aspects of the case and applying its judicial mind to the material available on record, found the appellant guilty of the offence. The pivotal question before this Court, therefore, is whether the learned trial court was justified in arriving at such conclusion and whether the evidence on record was properly appreciated. The learned counsel for the appellant invited the attention of this Court to a daily diary dated 13.09.2016 lodged by Imad Khan son of Sher Zamin at DHQ Hospital Mardan, wherein the complainant Imad Khan reported the matter to the extent of injuries allegedly caused by butt blows. However, thereafter, no further progress was made in this regard, as no medico-legal certificates were produced, nor injury sheets were brought on record. Although the doctor and relevant witnesses were summoned, a vacuum persisted, and no reliable material could be produced to substantiate that version. Even otherwise, if the said daily diary entry is accepted at its face value, it merely reflects injuries caused by butt blows and does not indicate any firearm injury. This aspect, therefore, creates ambiguity regarding the actual manner of occurrence. At this juncture, the Court is required to examine the legal implications arising therefrom and to assess whether the plea of sudden occurrence or any mitigating circumstance can be extended to the appellant. For proper appreciation of the controversy, it is also necessary to consider that not only one person lost his life and two others sustain injuries, but a third witness, though not injured, produced garments bearing bullet marks and it was on his pointation that the site plan was prepared. The presence of such physical evidence lends support to the prosecution version with regard to the place, time, and manner of occurrence. Nevertheless, it is settled law that medical or physical evidence alone does not conclusively establish the truthfulness of ocular account; rather, the inherent worth and credibility of witness testimony remain the decisive factors. Accordingly, this Court is required to examine whether the incident occurred in the manner alleged, whether the injured sustained injuries in the same transaction, whether the complainant (now deceased) had in fact reported the occurrence, whether the medical evidence supports the prosecution case, and ultimately, whether the prosecution has succeeded in proving the guilt of the appellant beyond reasonable doubt.

7. For proper appreciation of the peculiar circumstances of the present case, it is imperative to examine the inter-se relationship of the parties, the place of occurrence where the unfortunate incident took place, and the routes and movements of the witnesses from their respective places to the house of the deceased and thereafter to the house of the accused. The material on record reflects that there was no previous enmity or long-standing grudge between the parties rather, both sides consistently maintained that the occurrence was the outcome of a sudden verbal altercation arising out of a dispute relating to the children. It is for this reason that the prosecution witnesses stated that they proceeded to the house of the accused for the purpose of lodging a protest, whereupon the incident occurred. The crucial questions for determination, therefore, are whether the occurrence took place in the manner alleged by the prosecution, whether the accused were in fact responsible for causing the fatal and other injuries, whether the appellant and others also sustained injuries by butt blows during the same occurrence, and whether the totality of circumstances indicates that the incident was the result of a free fight between the parties. In order to address these issues, it is necessary to examine the statements of the material witnesses, i.e. eye-witnesses examined as PW-7 and PW-8, as well as the witness examined as PW-9 on whose pointation the site plan was prepared. The principal eye-witness (PW-7) gave a detailed account of the circumstances in which the occurrence took place. He deposed that on the day of the incident he, along with Shakir and Wali Muhammad, first went to the house of the deceased, where they came to know about the earlier quarrel relating to the children. Thereafter, they proceeded along with the deceased towards the house of the accused to lodge a complaint. His version was substantially corroborated by Shakir (PW-8) and Gul Ahmad (PW-9). All these witnesses were subjected to lengthy and searching cross-examination. However, they remained consistent on material particulars, including the time of their movement, the manner in which information regarding the earlier quarrel was received, and the sequence in which they proceeded towards the house of the accused. No material contradiction or infirmity could be brought on record, so as to discredit their core version of the occurrence. Consequently, nothing of substance was extracted which could advance the defence case. At the same time, this Court is conscious of the fact that, according to the prosecution witnesses themselves, the incident occurred in front of the house of the accused, and that upon knocking at the door, the appellant along with his co-accused came out and resorted to firing. A natural question arises as to why the accused would immediately open fire without any further exchange. This aspect gives rise to a reasonable inference that certain material facts relating to the genesis of the occurrence may not have been fully disclosed by the prosecution witnesses. In this context, reference to the daily diary entry assumes significance. The said entry suggests that during the same transaction one person died and that both the complainant of the daily diary and one Imad Khan sustained firearm injuries. Although this aspect was not fully developed during trial due to non-production of the doctor and the relevant medical record, but the fact remains that the existence of such entry was acknowledged by the eye-witnesses. This lends support to the inference that the occurrence may not have been as one-sided as portrayed and that elements of mutual aggression cannot be completely ruled out. The next question which arises is whether this aspect, by itself, is sufficient to extend an extraordinary concession to the appellant to the extent of his outright acquittal, or whether it merely calls for re-evaluation of the nature of liability and the quantum of sentence awarded by the learned trial court. It is, however, beyond dispute that the occurrence did take place, that the deceased and injured persons were promptly shifted to the hospital, and that the matter was reported without undue delay. It is also correct that the eye-witnesses are closely related to the deceased, as two of them are his brothers-in-law. Nevertheless, mere relationship, by itself, is not a valid ground to discard their testimony, particularly when some of them sustained injuries in the same transaction, thereby lending assurance to their presence at the scene of occurrence. The real question, therefore, is not whether their testimony should be excluded altogether, but whether they had placed the entire truth before the investigating agency and the trial court, or whether material aspects relating to the genesis of the occurrence were suppressed. Even if some suppression is assumed, the settled principle of law is that such suppression does not automatically warrant the total rejection of the prosecution case or the acquittal of the accused, rather the Court is required to sift the evidence carefully and determine the extent to which the prosecution version can be safely relied upon. Accordingly, the focus of this Court now shifts to examining whether, in the peculiar facts and circumstances of the case, the sentence awarded by the learned trial court meets the ends of justice, or whether any interference is warranted on the question of quantum of punishment. The record reveals one aspect which is common ground between the parties is that there was no prior blood feud or long-standing enmity, rather, the dispute arose on the very day of the occurrence, originating from a quarrel over the children, and later in the day, the parties again came across each other, culminating in the unfortunate incident. Although this Court is not fully persuaded that the occurrence took place strictly in the manner narrated by the prosecution, but the material on record sufficiently explains and substantiates the arrival of the complainant party at the house of the accused. However, it does not appeal to reason or ordinary human conduct that on mere knock at the door, the inmates of the house would immediately come out armed with firearms without first ascertaining the identity and purpose of the visitors. Ordinarily, a person answering the door would first seek to know who is present outside, and only thereafter would any further course of conduct follow. Therefore, the prosecution version, to the extent that the accused instantly emerged fully armed and resorted to firing, creates a degree of doubt and suggests that the genesis of the occurrence has not been fully disclosed. Once such doubt arises, it becomes incumbent upon the Court to examine the counter-version reflected in the daily diary. According to the said entry, Imad Khan stated that injuries were caused to him through butt blows. This aspect carries weight, because if the accused had been armed with firearms and had possessed a premeditated intention to kill, they could have easily fired at the complainant of the daily diary and others present at the spot. However, the admitted position is that injuries were inflicted through blunt force i.e. by the butt of the weapon. This circumstance strongly suggests that both parties were engaged in a mutual confrontation rather than unilateral assault. Further support to this conclusion is available from the medical evidence. The deceased, apart from firearm injuries on his chest and leg, also sustained a lacerated wound on his scalp. Likewise, the injured witnesses, particularly PW Javed, suffered both firearm and lacerated injuries, while PW Shakir also received blunt injuries. These injuries, taken cumulatively, indicate that at the time of occurrence both sides were actively involved in a free fight. The next question which arises is whether the existence of a free fight entitles the appellant to the extraordinary concession of acquittal, or whether it merely warrants consideration for reduction or modification of sentence. In our considered view, although both parties were engaged in a free fight, it is equally evident that the complainant side resorted primarily to blunt force, whereas the appellant and the absconding co-accused escalated the matter by resorting to the use of firearms. The record shows that the deceased sustained firearm injuries on vital parts of the body, i.e. the chest and leg, while the injured eye-witness Javed also received firearm injuries. Moreover, Gul Ahmad produced his garments before the investigating officer bearing bullet holes, which further corroborates the use of firearms by the accused party. Thus, when the conduct of both sides is assessed in its true perspective, it becomes apparent that the appellant and his co-accused exceeded the limits of any plausible right of self-defence and, instead of restraining themselves, chose to use lethal weapons. In these attending circumstances, this Court is inclined to hold that the appellant and the absconding co-accused not only actively participated in the free fight but also exceeded the permissible bounds of self-defence by opening fire. The fact that a firearm injury struck the chest of the deceased clearly shows the intention to cause death or, at the very least, knowledge that such act was likely to result in death. Consequently, this Court finds that the learned trial court was justified in awarding the sentence recorded in the impugned judgment, and in the facts and circumstances of the case, the normal penalty prescribed by law could not be avoided. Reliance is placed on the judgment titled "Onkarnath Singh and others v. The State of U.P", (1974 Cr.LJ 1015), wherein, it has been held as under:- "Such non-explanation however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises"

8. It is correct that the report was lodged by the deceased while he was in an injured condition and, therefore, the same carries the legal status of a dying declaration. However, the crucial question for determination is whether the deceased was in a fit physical and mental condition to make such statement and whether the procedural requirements were duly observed by the scribe who recorded the report and by the doctor who initially examined the injured. Before addressing this aspect, it is pertinent to note that the deceased did not expire on the day of occurrence but succumbed to his injuries on the following day. This circumstance, by itself, reasonably indicates that at the time of his arrival at the hospital, his condition was not so critical as to render him incapable of making a statement. Had his condition been immediately life-threatening, he would have either died at the spot or shortly after reaching the hospital. The statement of the scribe, examined as PW-5, was carefully perused. He categorically stated that the injured was brought to the hospital, that the report was recorded in his presence, and that the contents thereof were read over to the deceased and verified in the presence of one of the eye-witnesses. This witness was never confronted in cross-examination on the issue of mental orientation of the deceased or capacity to speak. No suggestion was put to him that the injured was unconscious, disoriented, or incapable of making a coherent statement. Similarly, the doctor who initially examined the deceased was questioned regarding the arrival and medical examination of the injured. However, the defence failed to extract anything from his cross-examination which could establish that the deceased was unfit to make a statement. Neither it was suggested that the injured was in a state of shock, unconsciousness, or medically unfit to communicate. The prosecution is under an obligation to establish the authenticity and reliability of a dying declaration; it is equally incumbent upon the defence to challenge such evidence effectively if it seeks to discredit it. In the present case, although the prosecution produced both the scribe and the doctor and explained the circumstances in which the report was recorded and the injured was examined, but the defence failed to bring on record any material which could create doubt regarding the capacity of the deceased to speak or understand. This case, however, does not rest solely upon the dying declaration. Rather, it stands fortified by the testimony of three independent eye-witnesses who appeared before the learned trial court, were subjected to extensive cross-examination, and successfully established their presence at the spot. Their presence is further corroborated by the fact that some of them sustained injuries in the same transaction, thereby lending intrinsic reliability to their version. Reliance is placed on the judgment of the Apex court titled "Ansar and others v. The State and others", (2023 SCMR 929), wherein, it has been held as under: - "The testimony of this injured PW as well as the stamp of injuries on his person clearly proves his presence at the place of occurrence. These PWs remained consistent on each and every material point inasmuch as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring."

9. Furthermore, when the counter- version reflected in the daily diary is taken into consideration, the ambiguities relating to the time, place, and manner of occurrence, as well as the nature of injuries sustained by both sides, stand substantially clarified. In such circumstances, even if the dying declaration is viewed with caution, it can safely be read in conjunction with the ocular and circumstantial evidence available on record. It is also noteworthy that although the prosecution had three eye-witnesses available, none of them volunteered to become the complainant. Instead, the report was lodged by the deceased himself. This conduct lends further credibility to the prosecution version and reflects the bona fide of the complainant and the witnesses, as there appears to be no attempt to fabricate or manipulate the narrative. The presence of the witnesses on the day of occurrence, which coincided with Eid, also appears natural. It is customary for close relatives to visit each other on such occasions, particularly in the afternoon hours. However, the situation changed when the parties came face to face, leading to a confrontation which ultimately resulted in the unfortunate incident. The possibility of a sudden encounter and a free fight, therefore, cannot be completely ruled out. In view of the cumulative effect of the dying declaration, the consistent ocular account, the corroborative medical evidence, and the counter-version placed on record, this Court is satisfied that the prosecution has successfully established that the report was duly made and properly verified. No material was brought on record to show that the deceased was incapable of making the statement. Consequently, this Court is inclined to presume that the deceased, while in an injured condition, was mentally and physically fit to speak and that it was he who truthfully reported the occurrence. Reliance is placed on judgment of Apex Court titled "Muhammad Saeed and another v. The State and another; 2024 SCMR 1421 wherein, it has been held as under "On reappraisal of the evidence available on record and after considering the circumstances of the instant case, we have no reason to discard/disbelieve the dying declaration of deceased Nagina Bibi which is supported by the confidence inspiring testimony of PW-8, PW-10 and PW-13 and is also corroborated by the inquest report, MLC, postmortem report and report of the chemical expert."

10. The medical evidence in this case fully supports the version of the prosecution. The deceased sustained two firearm injuries along with a lacerated wound, while eye-witness Javed Muhammad also received one firearm injury in addition to lacerated injuries on his body. The second eye-witness sustained lacerated injuries, and the third eye-witness was able to produce garments bearing bullet holes. The ocular account, being straightforward and consistent, is corroborated by the medical evidence, which is confirmed and reliable in nature. Once the credibility of the witnesses could not be successfully challenged, the medical evidence serves to reinforce and strengthen their testimony. This harmony between the ocular and medical evidence further substantiates the claim of the prosecution. There is, therefore, no conflict between the two; rather, both converge to confirm the essential aspects of the occurrence, including the manner, timing, and impact of the injuries. Accordingly, this piece of evidence is properly admissible and can be taken into consideration for assessing the guilt of the appellant. In similar circumstances, we derive wisdom from the judgment of the apex Court titled "Aqil v. The State", (2023 SCMR 831), which reads as follows: - "The medical evidence available on the record further corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and injured is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused."

11. It is also pertinent to mention that the appellant remained an absconder for a considerable period after the occurrence. Such conduct, in the eyes of law, reflects consciousness of guilt and further weakens any claim of innocence or justification. Reliance is placed on the judgment of the apex court titled "Maskeen Ullah and another v. the State and another (2023 SCMR 1568) wherein, it has been held as under: - "His non-bailable warrants (Exbt.PC) and proclamation (Exbt.PD) were issued by the competent Court and he ultimately was declared as proclaimed offender. This willful and unexplained abscondence fully corroborates the ocular account as he did not give any plausible explanation of such long abscondence.

12. The motive behind the occurrence, as consistently admitted by both parties, was a verbal altercation earlier in the day concerning the children. This dispute led both sides to the eventual confrontation. On one hand, the report was lodged by the deceased, while on the other, the Imad Khan and another individual sustained butt-blow injuries, as reflected in daily diary dated 13.09.2016. Thus, the motive was the factor that brought both parties together and ultimately resulted in the disturbance. It is clear that the motive was not one-sided; both parties were equally involved and connected to the incident. However, the responsibility of the appellant is greater, as he, along with the absconding co-accused, resorted to the use of firearms. In these circumstances, the learned trial court was justified in awarding the sentence imposed. The circumstances of the case warranted a punishment other than the normal penalty of death, and the court, while taking into account the motive and other relevant factors, acted within the limits prescribed by law. It is also relevant that the appellant remained absconding for a considerable period following the incident. The occurrence took place in 2016, while the appellant was arrested only in 2022 by the police of Police Station Matta in Swat. The appellant failed to provide any satisfactory explanation for his prolonged abscondence. Such conduct, in law, indicates a consciousness of guilt and further strengthens the case of the prosecution.

13. On the basis of the material on record, the prosecution has successfully established the guilt of the appellant. The learned trial court meticulously appreciated the evidence and applied its judicial mind to the facts, and in doing so, showed both factual correctness and legal soundness. It is pertinent to mention that the learned trial court, despite the gravity of the offence, awarded a lesser sentence than the normal penalty of death, reflecting a judicious assessment of all circumstances. The impugned judgment contains detailed reasons based on the evidence on record and is strictly in accordance with law. No valid ground exists for interference. The instant appeal is, therefore, devoid of merit and is dismissed. JK/55/P Appeal dismissed.