2025 PLP 2627 (YLR)

Salah-ud-Din, J.

Instant criminal appeal has been filed by the complainant, Daulat Khan, (appellant herein) against the impugned judgment dated 14.12.2022 passed by learned Sessions Judge/ Zilla Qazi, Dir Lower at Timergara in a criminal case registered vide FIR No. 505 dated 31.08.2014 under sections 302/324/148/149/337-F (iii), (v), (vi) P.P.C at the Police Station Balambat, District Dir Lower, whereby accused/respondents, namely, Ibn-e-Amin, Fazal Rahman, Noor-ul-Amin and Umar Shad Pacha were acquitted of the charges.

2. A glimpse over the facts of instance case reflects that complainant namely Daulat Khan lodged report of the occurrence at DHQ Hospital, Timergara, which was reduced into writing in shape of Murasila (Ex:PW16/29) by Khair-ur-Rahman Khan, ASI, of Police Station Balambat, Dir Lower on 31.08.2014 and same was sent to Police Station for registration of FIR. Complainant stated in his report that he along with his son namely Liaqat, brother namely Javed, nephew namely Dawood and other family members were present in their house. They got information that accused Fazl-ur-Rahman, Noor-ul-Amin, Nawshad, Zia-ul-Haq, Shoaib, Ismail, Anwar Shad, Umar Shad and Masood residents of village Haji Abad Khanjar were constructing wall in their property, on which, the complainant along with his nephew Dawood, brother Javed and son Liaqat proceeded to their property in pursuance to information received by them. When they reached the place of occurrence at 12:00 Noon so as to restrain the accused from construction in their property, the accused named above were alleged to have started firing on them. As a result of firing of accused Noor-ul-Amin, Zia-ul-Haq and Nawshad, nephew of complainant namely Dawood is stated to have been injured and killed. Similarly, from the firing of co-accused Fazl-ur-Rahman and Umar Shad, son of complainant namely Liaqat was hit, received injuries and died on the spot. From firing of accused Anwar Shad, the complainant received injuries on his right leg while his brother namely Javed received injuries from firing of co-accused Shoaib. The occurrence was stated to have been witnessed by PWs Javed, Zakir Shah and Shah Khalid beside the complainant. Dispute over property was disclosed to have been motive for commission of the offence.

3. Needless to mention here that initially, during the course of investigation, co-accused namely Nowshad, Anwar Shad, Masood and Ismail were arrested in the case, whereas, the respondents/accused were declared absconders. On completion of investigation in the case, complete challan was put before the trial Court against the aforesaid accused and trial commenced, during which, co-accused Nawshad and Anwar Shad got dead, so, proceeding against them were abated, as such, the trial was then faced by two co-accused Masood and Muhammad Ismail, who were acquitted by learned trial Court on conclusion of trial and hearing arguments of learned counsel for the parties vide judgment, dated 11.10.2018. The appellant assailed the aforesaid judgment through preferring a Criminal Appeal No.306-M/2018 but this Court dismissed the same vide judgment, dated 09.03.2020, and upheld the acquittal judgment of trial Court.

4. Accused/respondent No.1 was arrested on 30.10.2020. Subsequently, accused/respondents Nos. 2 and 3 were arrested on 09.03.2021 and accused/ respondent No.4 was arrested on 07.04.2021, so, supplementary challans were submitted against them before the learned trial Court. In compliance of Section 265-C, Cr.P.C., necessary documents from the record were provided to the accused/respondents and thereafter, formal charge was framed against them, to which, they did not plead guilty and preferred trial. On conclusion of trial, statement of the accused/ respondents were recorded under section 342, Cr.P.C, thereby they denied all allegations of the prosecution levelled against them, however, they neither opted for producing defence nor wished to record their statements on oath in compliance to Section 340(2), Cr.P.C. Learned trial Court after hearing arguments of learned counsel for the parties, ordered acquittal of the accused/ respondents vide impugned judgment, dated 14.12.2022, so, aggrieved whereof, appellant preferred instant criminal appeal.

5. A bare look of the previous order-sheets would show that since institution of the case, except on the very first date, i.e., 10.05.2023, neither the appellant himself nor his learned counsel have turned up before the Court for hearing of the case and the appellant was represented by his son. On the previous date, i.e., 12.06.2024, last opportunity was given to the appellant for hearing of the case with the directions to come up along with his counsel on the next date of hearing, otherwise, this case shall be decided on the basis of available record. Today, instant case was put-up for hearing, however, it was noted that neither appellant himself nor his learned counsel were in attendance before the Court for hearing of the case despite their proper service via notice of the Court, which report is Ex:PHC/1 placed on the case file as a token of proof and as such, record was thoroughly perused.

6. Perusal of record would reflect that the prosecution examined as many as 18 PWs for establishing the guilt of accused/respondents. First, the Court would refer to ocular accounts of prosecution in shape of statements of the complainant recorded as PW12, Malak Muhammad Javed as PW13 and Shah Khalid as PW

14. Complainant while lodging his first report (Ex:PW16/29) of the occurrence had stated that when they reached the place of occurrence, the accused party started firing upon them. When he appeared in Court as a witness as PW-12, who recorded similar narration but in cross-examination, he has stated that when they reached the place of occurrence and shouted them, the accused, who were busy in construction of wall having stones in their hands, went towards their house and turned back, surrounded them and started firing at them. Further deposed that the accused didn't start firing simultaneously at them but they fired in a pair with a break of half/half minutes on each injured and deceased. He in his examination-in-chief gave the names of three alleged eye-witnesses, i.e., Zahir Shah, Zakir Shah and Shah Khalid. The other injured/eye-witness, namely, Malak Muhammad Javid recorded his examination-in-chief as PW 13, who stated therein that when they reached the place of occurrence, the accused started firing at them with their respective firearms. During the cross-examination stated that when they reached the place of occurrence, all accused were busy in construction of wall, so, his brother Daulat Khan from some distance asked the accused for stoppage of work, on which, the accused took their guns, went towards their houses, turned back and started firing at them with their respective firearms. He further stated that at the time of firing, all persons of complainant party were standing on their respective positions and they didn't try to run or get escape in the surroundings including the house of their brother. He deposed the names of two alleged eye-witnesses, i.e., Zakir Shah and Shah Khalid. The prosecution also examined alleged eye-witness, Shah Khalid, as PW-14, who deposed in his cross-examination that on the day of occurrence, he met with the complainant and his companions near the house of Muhammad Amin, his uncle, whereas, the complainant (PW12) stated in his cross-examination that on the day of occurrence, no one else had accompanied them on the way from their house to the house of his brother, Muhammad Amin, and the place of occurrence. Similarly, Zakir Shah, previously recorded his statement as PW10 in the case against co-accused Masood son of Anwar Shad and Muhammad Ismail, in sessions case No.01/ii of 2017, wherein he deposed that prior to the occurrence, the complainant party, namely, Daulat Khan, Shah Khalid, Dawood, Javid and Liaqat while passing through his house, they called him out and he left with them. When they reached near the place of occurrence, the accused stopped the work, stood across them. The complainant tolled them to stop the work, however, they with one voice replied that they will keep continue the work, first they exchanged words, then, brought firearms from their houses and committed the occurrence. Relevant portion of his statement is reproduced for ease reference as follows: Zakir Shah, PW11 further deposed in his such cross-examination that when they came to the spot after the occurrence, deceased were laying there on the spot and they checked their plus but they were dead. Relevant portion is reproduced as follows: Interestingly, in the previous trial against co-accused, Masood and one another, referred to above, the complainant, Daulat Khan, stated in his cross-examination recorded as PW11 that on the way to the place of occurrence from their house, there were situated only three houses belonged to Zakir Shah, Yousaf Haji and Mukhtiyar. The complainant party while coming towards the place of occurrence from their house, they had not accompanied any resident of the aforementioned houses. Relevant portion of his statement is reproduced as follows:

7. Appellant Daulat Khan (PW12), deposed in his cross-examination in the present case that the accused didn't start firing collectively at the same time; instead, they fired in turn, with a break of half a minute, which part of statement is reflected as follows:

8. Allegedly, the occurrence took place on 31.08.2014 at 12:00 hours, however, the report was made to the local police at 14:00 hours with two hours delay but such delay has not been properly explained on the record with valid and logical reasons. Similarly, the eye-witnesses including the complainant as well as the injured have recorded their statements under section 164, Cr.P.C, on 06.09.2014, with delay of 06 days and in this regard too there is no plausible explanation on the part of prosecution. Besides, one Shuaib, was charged in the FIR for causing injury allegedly inflicted to one Muhammad Javid Khan, an eye-witnesses of the occurrence, but subsequently, his name was replaced with Bamin son of Muhammad Amin, by alleging that his name was inadvertently mentioned in the first information report and his name was deleted from the instant case.

9. Reappraisal of the entire evidence, as discussed above, would depict that the circumstantial evidence in shape of blood-stained articles coupled with postmortem/medical reports of the deceased and the injured, are not sufficient to record conviction of the accused/respondents. When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution case as the corroborative evidence cannot by itself prove the prosecution's case. Hon'ble Supreme Court of Pakistan while giving its judgment in case titled "Muhammad Afzal alias Abdullah and others v. The State and others" reported as 2009 SCMR 639 has also expressed almost a similar view in para-12 of its judgment, which is reproduced hereunder for ready reference: "After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be." Hon'ble Supreme Court of Pakistan in its judgment rendered in case titled "Imran Ashraf and 7 others v. The State" reported as 2001 SCMR 424, has also observed; "Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony. Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion." Similarly, Hon'ble Supreme Court of Pakistan in its judgment rendered in case titled "Imran Ashraf and 7 others v. The State" reported as 2001 SCMR 424, has also observed; "Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony. Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion."

10. As far as the medical evidence is concerned, needless to highlight that the medical evidence may confirm the direct or ocular account, if any, with regard to the set of injuries, kind of weapon allegedly used in the commission of offence and at least the nature of injuries, however, in the instant case when the ocular evidence is disbelieved then evidentiary value of medical evidence qua the guilt of the accused/respondents as a sole piece of corroboratory evidence cannot be given much weight. Reliance in this regard is placed on the case titled "Abdul Rashid v. The State reported as 2019 PCr.LJ 1456, whereby it has been held: - "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 set 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. The State' (1997 SCMR 866)."

11. Apart from the above, two co-accused, Masood and Muhammad Ismail, who were arrested in the case, have been acquitted on the same set of evidence by the learned trial Court vide judgment, dated 11.10.2018, and appeal there-against preferred by the present appellant was also dismissed by this Court vide judgment, dated 09.03.2020. In this regard, Hon'ble apex Court in the case of "Ulfat Hussain v. The State", reported as 2018 SCMR 313, has ruled as infra: "8.[...] In these circumstances, independent and strong corroboration from other pieces of evidence is required to believe the same set of evidence against the appellant which has already been disbelieved by the learned trial Court against his acquitted co-accused, whose roles were quite similar as that of the appellant. Such corroboration is very much lacking in the instant case. Considering all these circumstances, we have no manner of doubt in our minds that prosecution has failed to prove its case against the appellant beyond any shadow of doubt." This Court in the case of "Hazrat Ali v. Muhammad Ali" [2018 YLR 319 (Peshawar High Court, Peshawar)], has observed as under: "

2. In the FIR three persons of the same family, father Jamshed, his son, the appellant Hazrat Ali and son of the appellant, Rahat Ali, were charged by the complainant, Muhammad Ali, for the Qatl-i-amd of his brother Anwar Ali, in the furtherance of common intention of all the three accused named in the FIR. The two co-accused, namely, Jamshed and his grandson Rahat Ali have already been acquitted of the charges by the learned Trial Court vide judgment dated 18.06.2011, in respect of co-accused Jamshed, and vide judgment dated 30.01.2013 relating to co-accused Rahat Ali. The judgment of the learned Trial Court dated 30.01.2013 in regard of co-accused Rahat Ali was assailed by the complainant, but the appeal was dismissed by the Court in limine vide judgment/order dated 23.10.2013. No doubt, the role assigned to the appellant is a bit different from the two acquitted co-accused, as the appellant was charged for effective firing with his pistol and causing the death of deceased Anwar Ali, while the acquittal two co-accused were charged for their armed presence on the spot while sharing common intention of Qatl-i-amd of the deceased with the appellant; but the fact remains that the same evidence of the prosecution was disbelieved with regard to sharing of common intention of all the three accused, and when there is nothing on the record to suggest that the murder was premediated, the same evidence is to be closely scrutinized while determining effective role of Qatl-i-amd of the deceased imputed to the appellant." Further reliance is placed on the cases of "Shahan Akhter and another v. The State through Prosecutor General, Punjab" (2021 SCMR 395), "Muhammad Ali v. The State" (2015 SCMR 137), "Muhammad Akram v. The State" (2012 SCMR 440), "Umar v. The State" (2009 PCr.LJ 1110 High Court Sindh).

12. While taking into consideration the ocular accounts of the prosecution referred to above, their testimonies are based on material contradictions and discrepancies fatal to the case of prosecution, whereas, under the law, the prosecution alone is under heavy duty to prove the charge against the accused beyond any shadow of doubts. Even a single reasonable doubt is sufficient to record acquittal. In the case of Najaf Ali Shah v. The State (2021 SCMR 736), wherein it was held as infra: "It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner." The same principle was reiterated in the case, The State throukh P.G. Sindh and others v. Ahmed Omar Sheikh and others, reported as 2021 SCMR 873, as follows: "It is settled since centuries that benefit of doubt automatically goes in favour of an accused. Even if a single circumstance creates reasonable doubt in a prudent mind regarding guilt of an accused, then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation."

13. The next question, that has attained added significance in the instant case, is related to participation of accused/respondents as members of unlawful assembly in furtherance of their common object of killing the two deceased and injuring the other two persons. Section 149 P.P.C lays down the principle, application of which has been sought by the prosecution in the instant case. Aforesaid provision being relevant is reproduced hereunder for ready reference; "

149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." The essential ingredients for acquiring criminal liability under the ibid provision of law, shall be; a) That an unlawful assembly has come in existence; b) Members of the unlawful assembly had been pursuing a common object of that assembly; or c) That an offence is committed in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. Section 141 of P.P.C has defined 'unlawful assembly', which is also relevant in the instant case and same is also reproduced hereunder for ready reference; "

141. Unlawful assembly.- An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is; First: To overawe by criminal force, or show of criminal force, the Central or any Provincial Government or Legislature, or any public servant in the exercise of the lawful power of such public servant; or Second: To resist the execution of any law, or of any legal process, or Third: To commit any mischief or criminal trespass, or other offence; or Fourth: By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth: By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation. An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." An assembly of five or more persons which has a common object of commission of an offence would therefore be falling in the definition of an 'unlawful assembly'. The Hon'ble Supreme Court of Pakistan in its judgment given in the case of Muhammad Altaf' and 5 others v. The State reported as 2002 SCMR 189, has held that for invocation of the principle contained in Section 149 P.P.C, its essential ingredients have to be established by the prosecution. Relevant observation of the Hon'ble Apex Court is reproduced as follows: - "In the light of the arguments addressed and in view of the factual aspect of the case it is proper and necessary to first determine whether in the circumstances of this case the prosecution has been able to prove the ingredients of section 149, P.P.C. and its application to the facts of the case. As this section stands, its ingredients have to be established by the prosecution. The liability of each accused involved in a case can only be fixed if the common object of the assembly is first ascertained." Further ahead in the said judgment, the application of Section 149, P.P.C was avoided by observing as follows: "The word "knew" occurring in the second part of section 149, P.P.C. requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations that the offence was committed in prosecution of the common object of the assembly. It would, therefore, not be sufficient to show that the accused ought to have known or might have known and that they had reason to believe that the common object of the unlawful assembly was to commit murder. In this background it is not just and proper to hold that to avenge a trivial and insignificant incident over pigeon, the grand-father, their son and their grand-son would form an unlawful assembly with the only object to commit murder. Therefore, in these circumstances section 149, P.P.C. cannot be made applicable and so every accused would be liable to punishment for the act committed by him during the attack." In the case of Akhtar Hussain and others v. The State reported as 1969 PCr.LJ 753, the Hon'ble Apex Court had differentiated cases of various members of the assembly after finding no evidence of joining of common object of the members thereof and had dealt with their cases distinctly by not making resort to the principle contained in Section 149 P.P.C. The prosecution was therefore required to have proved that accused/respondents were members of the unlawful assembly and that they had joined common object of the assembly, for commission of the offences, however, prosecution has not been able to prove, beyond doubt, that the present accused/ respondents have joined the unlawful assembly and have shared with its common object. Evidence of the prosecution is contradictory regarding the fact of forming of unlawful assembly and its joining by the accused/respondents, therefore, the principle enshrined in Section 149 P.P.C cannot be applied to instant case.

14. Even otherwise, an accused person, as a matter of right, is presumed to be innocent before trial unless the charge is proved against him/her. Acquittal at trial gives rise to double presumption of innocence for an accused. An appellate Court needs to be cautious while considering the evidence and should avoid reversal of an acquittal, unless it finds that the acquittal is perverse, conjectural, arbitrary, jurisdictionally defective and prompted by mis-reading or non-reading of evidence. Even if a contrary view is formed on re-appraisal of evidence, it should not be used to disturb an acquittal, provided convincing evidence is available on the record to reverse acquittal, which is missing in the instant case. In this respect, reference may be made to the judgment of the Hon'ble apex Court rendered in the case of Jehangir v. Aminullah and others reported as 2010 SCMR 491, where it was observed as follows: "It is well-settled by now that there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well-settled that Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the forgoing searching light, should be found wholly as artificial, shocking and ridiculous. The view taken by this Court in Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 is well-known that "in o an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. This will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally". This principle was also followed in Muhammad Iqbal v. Sanaullah PLD 1997 SC 569, State v. Farman Hussain PLD 1995 SC 1, Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11, Ahmad v. Crown PLD 1951 FC 107, Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426, State v. Bashir PLD 1997 SC 408, Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452, Shahzado v. State PLD 1977 SC 413; Farmanullah v. Qadeem Khan 2001 SCMR 1474 and Khadim Hussain v. Manzoor Hussain Shah 2002 SCMR 261."

15. In light of what has been discussed above, it is clear that the prosecution has not been able to prove the case against accused/respondents beyond reasonable doubt. The judgment of acquittal impugned herein is based on proper appreciation of evidence and contains solid reasons recorded therein.

16. Resultantly, instant criminal appeal stands dismissed being bereft of merits. JK/101/P Appeal dismissed.