2025 PLP 1371 (YLR)

Dr. Khurshid Iqbal, J.

The penta-murder case before us presents a harrowing account of familial tragedy, where five lives were brutally taken over a pathway dispute. The event was reported by complainant Noor Aslam Khan on 11.05.2014, at 08:15 a.m., in the Emergency Ward of Civil Hospital, Bannu. The report unveils that on the eventful day, the complainant, his brother Farid Ullah Khan, and cousins Gul Raip Khan, Sher Adat Khan, and Zahid Ullah Khan were proceeding on foot, with the complainant's father Muhammad Sher Khan following them on a bicycle, to their landed property to harvest their wheat crop. At about 07:00 a.m., when they reached the pathway, near the property of Yaqoob Nawaz, accused Khaista Noor, Nek Muhammad, Badi-uz-Zaman, Khaliq Noor, Khooba Noor, Naza Noor, Sakhi Muhammad, armed with Kalashnikovs, and co-accused Hazrat Noor and Taj Muhammad, armed with pistols, emerged from Sakhi Marjan's landed property. Upon reaching near the complainant party, the accused started firing at them with their respective weapons, resulting in the deaths of the complainant's father, brother, and cousins on the spot, while he luckily escaped unhurt. After the occurrence, the accused immediately fled the crime scene.

2. After the tragedy, the co-villagers of the complainant attracted to the spot and helped him shift the dead bodies to the hospital, where his report was penned down in the murasila Ex.PW-6/1. Subsequently, inquest reports of the deceased were prepared and their bodies were sent to the mortuary for postmortem examination under the escort of police constable Bakhtiar Ali No.427. The murasila was sent to the police station through constable Muhammad Akram No.134 for the registration of the case. Consequently, FIR No. 244, dated 11.05.2014, under sections 302/324/148/149 P.P.C. was registered against the accused at Cantt Police Station in District Bannu.

3. The Investigating Officer (I.O), upon receiving a copy of the FIR, visited the crime scene, where he prepared the site plan Ex.PW-11/1 at the instance of the complainant. He also collected bloodstained earth from the places of the deceased and 15 crime empties-seven of .30mm bore and eight of 7.62mm bore-from the places of the accused vide recovery memos Ex.PW-1/1 and Ex.PW-1/2, respectively. Simultaneously, Dr. Munir Ullah, PMO (PW-04), conducted autopsies on the dead bodies of the deceased. He furnished the postmortem reports Ex.PW-4/1 to Ex.PW-4/5 and sent them, along with the bloodstained garments of the deceased, to the I.O. through the escorting police constable.

4. Out of the accused charged, Khooba Noor was arrested on the same day at the hospital, where he reported that the deceased Farid Ullah had aimed a Kalashnikov at him, while deceased Sher Adat Khan and his co-accused Khalid Nawaz (absconder), caused him injuries by giving him blows with sickles. The deceased Zahid Ullah and Gul Raip Khan were alleged as active members of this unlawful assembly to commit the offence. Later, this led to the registration of FIR No.323, dated 12.06.2024, under sections 337-F(ii)/337-L(2)/148/149 P.P.C. at Police Station Cantt, Bannu, against the complainant party. Co-accused Hazrat Noor took plea of alibi, claiming that he was present at his duty place on the day of the incident, and surrendered to the process of law.

5. Both the accused Khooba Noor and Hazrat Noor were charge sheeted, to which they met with denial. After the prosecution evidence was closed, their statements under section 342 Cr.P.C. were recorded. The latter opted to record his statement under section 340(2) Cr.P.C. and to present defence evidence as well. He did so, and maintained that at the fateful time, he had visited the place of his duty, where Security Incharge Sharif Ullah had opened the gate for him, and Muhammad Rafiq had handed over him the charge of his duty as Machine Operator at Hydel Power Station, WAPDA, Kurram Ghari-II, Bannu. Defence witness Ikram Ullah Khan, Acting Assistant Resident Engineer (ARE), was produced as DW-01. He testified that he had seen the accused on duty on the fateful day.

6. Considering the pro and contra evidence and hearing the arguments of both sides, the learned Additional Sessions Judge-1, Bannu, convicted the former and sentenced him to life imprisonment, while acquitting the latter on the plea of his alibi, vide judgment, dated 27.01.2016. This was appealed against before this Court in Cr.A, No.20-B/2016. By its judgment, dated 07.11.2017, this court set aside the judgment of the trial court and remanded the case with a direction to the trial court to record evidence by summoning the entire record regarding the plea of alibi of accused Hazrat Noor.

7. After recording the evidence, additional statement of the appellant Hazrat Noor under section 342 Cr.P.C, where he relied on his previously recorded statement under section 340(2) Cr.P.C and his defence evidence, and after hearing the arguments, both were convicted by the learned Additional Sessions Judge-I, Bannu, as per the judgment, dated 18.10.2018. They were sentenced under section 302(b) P.P.C., read with section 149 P.P.C., to life imprisonment, with compensation of Rs.6,00,000/- payable to the Legal Heirs (LRs) of each deceased under section 544-A Cr.P.C. or to undergo six months S.I. for each default. They were also convicted and sentenced under section 324 P.P.C. to five years R.1., with a fine of Rs.1,00,000/- each, or to undergo three months S.I. in default of this payment, in addition to their being convicted and sentenced under section 148 P.P.C. to one year imprisonment. All the sentences were ordered to run concurrently. The benefit under section 382-B Cr.P.C. was extended to them. Being aggrieved, they assailed their convictions and sentences through this appeal, while the complainant preferred Cr.R. No.54-B/2018 for enhancement of the sentences.

8. During the pendency of the appeal and the revision, absconding co-accused Naza Noor and Badi-uz-Zaman were also arrested, tried, and convicted by the learned Additional Sessions Judge-I, Bannu, as per the judgment, dated 06.07.2022. They were sentenced in the same manner as their co-accused Hazrat Noor and Khooba Noor. They also assailed before this Court their convictions and sentences through Cr.A. No.126-B/2022, while the complainant preferred Cr.R. No.37-B/2022 for enhancement of the sentences. These matters were clubbed and heard together. Since both the appeals and the revisions arise from the same FIR and the evidence collected, recorded, and presented in both trials is identical with no material distinction, therefore, we dispose of all of them through this single judgment.

9. We have given our anxious consideration to the arguments addressed at the bar and thoroughly perused the material available on the record.

10. While the trial court, after examining the record, handed down the sentence of life imprisonment to the appellants in addition to their convictions and sentences as aforesaid, this being the Court of appeal is burdened with the duty of administering justice effectively. Therefore, it is imperative to reappraise the entire evidence in order to avoid any miscarriage of justice.

11. Before we proceed to dilate upon the merits of the case, it is expedient to mention that one of the convicts/appellants Naza Noor passed away during the pendency of the appeals on 05.11.2023. The medical report with regard to his death was communicated to this Court by the Jail Superintendent through letter, dated 29.11.2023. Upon the death of the convict appellant, the appeal merited adjudication on merits, as the financial liabilities resulting from the conviction and shifted to the estate required this Court to decide the appeal to determine the liabilities devolving upon the LRs. Therefore, we heard the learned counsel on his behalf as well. In this regard, reliance is placed on Sheikh Iqbal Azam Farooqui through Legal Heirs v. State through Chairman NAB (2020 SCMR 359), wherein the Supreme Court of Pakistan, in similar circumstances, ruled as under:

4. Corporal consequences of a conviction wither away with the death of the convict, therefore appeal filed by the convict would automatically abate, as the death severs all temporal links with his corpus. However, financial liability, consequent upon conviction and shifted upon the estate, would certainly require the appellate Court to decide the appeal on its own merit as in the event of its failure, the liability is to be exacted from the assets devolving upon the legal heirs. A plain reading of Section 431 of the Code ibid confirms the above contemplation of law. Criminal petition is converted into appeal; allowed. The impugned order is set aside. Appeal filed by the deceased, being sustained by his legal heirs, shall be deemed as pending before the High Court for adjudication on merits.

12. Adverting to the merits, the questions for determination before us are whether the complainant was present at the crime scene at the eventful time or is a procured or a chance witness; whether the testimony furnished by the complainant has a ring of truth and inspires confidence; whether the incident occurred as alleged, in the manner described, and at the stated time; whether the charge has been exaggerated or if the appellants committed the murder of the deceased; whether the prosecution has successfully proved the appellants' guilt beyond a reasonable doubt, whether the appellants have been able to establish their innocence, especially the appellant Hazrat Noor who took the plea of alibi, if so, its effect; and whether the trial Court properly appreciated the evidence collected, recorded, and presented or otherwise. To ascertain these significant aspects of the case, we would delve into and commence the discussion with the evidence provided by the complainant, because his testimony holds paramount importance as it provides a firsthand account of the tragedy.

13. To begin with, we find that the ocular account comprises the sole statement of the complainant Noor Aslam Khan, who appeared as PW-10 in the earlier trial, and as PW-12 in the later one. In both trials, he provided consistent testimony, stating that on 11.05.2014, at about 07:00 a.m., he, along with his deceased brother Farid Ullah Khan and cousins Gul Raip Khan, Sher Adat Khan, and Zahid Ullah Khan, was heading towards their landed property, with his father Muhammad Sher Khan following them on a bicycle. When they reached the thoroughfare, near the fields of one Yaqoob Nawaz, the appellants Hazrat Noor, armed with a pistol, Khooba Noor, Naza Noor Khan, and Badi-uz-Zaman, armed with Kalashnikovs, along with absconding accused Khaista Noor, Nek Muhammad, Khaliq Noor, Sakhi Muhammad, armed with Kalashnikovs, and Taj Muhammad, armed with a pistol, emerged from the side of the landed property of one Sakhi Marjan and, upon reaching near the complainant party, started indiscriminate firing at them with their respective weapons with the intent to cause their qatl-i-amd. As a result, the complainant's father, brother, and cousins were hit and died on the spot, while the complainant luckily escaped unhurt. He narrated each and every minute detail regarding the pre and post occurrence circumstances. He faced extensive cross-examination by the defence, yet no evidence favouring the appellants or detrimental to the prosecution version could be elicited from his mouth. He remained consistent on every material point, providing testimony that remained in consonance with the facts and circumstances of the case and the material so collected and brought on the record. In the circumstances, we are clear in our minds that the ocular account is natural, straightforward, reliable, and instills confidence.

14. The learned counsel for the appellants vociferously contended that the complainant was not present at the stated time, rather he is a procured witness. He argued that if the complainant had been present, he would not have escaped unhurt for the reason that as many as nine assailants had resorted to indiscriminate firing at the complainant party, where escaping unhurt in such horrific circumstances is nothing, but a miracle, raising substantial doubts qua the complainant's presence. We are not impressed by the argument the learned counsel put forth for three main reasons.

15. Firstly, it is not necessary that in a gunfire attack, each and every individual from amongst those attacked must necessarily be hit. There are instances where even a single individual remains unhurt in such cases. The outcome entirely depends on the marksmanship of the assailants and the specific circumstances of each case, determining whether it was possible for someone to escape unhurt or not. In Noor Muhammad v. The State (2005 SCMR 1958), a plea was raised by the accused that no firearm injury was - sustained by the eye-witnesses who were present at the crime scene and, therefore, their presence could not be held to have been - established. The Supreme Court of Pakistan repelled this contention, holding that no presumption or rule existed to the effect that all persons who were under attack from firearms ought to have received injuries. Therefore, the mere fact that some of the eye-witnesses did not receive injuries would not make the presence of such witnesses at the place and time of the incident doubtful.

16. Secondly, we find that the complainant was able to reply categorically to a question in his cross-examination regarding the very purpose he, along with the deceased, was heading towards the landed property, which was to harvest their wheat crop. This fact has also been established on the strength of the testimony furnished by the I.O. as PW-11 and PW-14 in both trials, and the site plan clearly depicts that some of the wheat crop had already been harvested by the complainant party a day earlier to the incident, whereas, the remaining was still standing in the field, situated near the crime scene. In reply to a question, the complainant further stated that he is a farmer by profession and that he, along with family members, including his deceased cousins, had been farming around 25 kanals of land. This fact stood established by the very presence of the dead bodies of the deceased at the spot. Moreover, it is quite natural that as many male members of a farming family as possible do take part in harvesting the crops, and the present case is no exception. Even the days of the occurrence could not be disputed as far as the season of harvesting the wheat crop is concerned. The complainant has clearly stated in the FIR that when they reached the spot, the assailants emerged from the side of the fields of one Sakhi Marjan and, on reaching near the complainant party, started gunfire at them with their respective Kalashnikovs and pistols. Notably, the complainant was able to specify who amongst the assailants was carrying which type of weapon in the very first information report, a fact that finds positive support from the record of the case.

17. Thirdly, the fact, as aforesaid, that the assailants started gunfire only after reaching near the complainant party suggests that there was an opportunity for the complainant to lay down on the ground, which he did, a fact that he explained while responding to a question during cross-examination. It was quite natural for the complainant to lay down in such horrific circumstances. Expecting him either not to lay down or to stand like a statue to the assailants, knowing that they were about to start the gunfire, would have been unnatural conduct.

18. The learned counsel further contended that if the complainant had indeed been present at the fateful time, that too, empty handed, then how and why he would have been spared by as many as nine assailants, duly armed with sophisticated weapons. According to him, the complainant was left all alone and at the mercy of the assailants, therefore, leaving him alive does not appeal to a prudent mind. In our considered view, this limb of his arguments lacks due substance. As it was a matter of two to three seconds, the assailants, after causing the qatl-i-amd of the deceased, immediately decamped from the spot, while he laid on the ground, the complainant explained in reply to a question during cross-examination. This implies that the assailants did not verify whether the complainant remained alive or not. It was natural for them to immediately leave the crime scene, as assailants who had just taken five lives would naturally prioritize their escape rather than lingering at the crime scene, which would endanger not only their escape, but also their lives. As in the instant case, the appellants, having already taken the lives of five persons, were focused on their own escape rather than checking the condition of everyone amongst the complainant party, who had fallen to the ground, either injured or otherwise, to ascertain who might still be alive. The explanation brought out from the complainant's mouth during cross-examination bolsters our confidence as to why he turned out to be lucky enough to have been left alive.

19. Over and above, this is not a single murder case, but a case where as many as five were shot dead, so it is not unnatural that the complainant did not receive a single bullet. This is because he laid down on the ground, the target was almost completed by the assailants considering the number of casualties, and the assailants immediately fled the crime scene after the commission of the offence. As the complainant not only narrated in detail the very purpose, pre and post occurrence circumstances, the peculiar facts and circumstances that led to his escaping unhurt, and testified in a consistent manner where the defence failed to reasonably impeach his credit by way of cross-examination, and as the testimony the complainant furnished appears to be natural and inspires confidence, therefore, it can reasonably be concluded that the complainant has been successful in establishing his presence at the crime scene through physical circumstances, which cannot be doubted by any stretch of imagination. Where the eye-witnesses succeed in establishing their presence at the crime scene at the fateful time, and their testimonies appear to be confidence inspiring, then convictions have often been recorded and upheld by the higher courts. Reference, for instance, may be made to Qadir Bakhsh alias Dau v State (2024 PCr.LJ 982 Karachi), Ali Jan v. State (2023 PCr.LJ 247 Karachi), Naseeb Ullah v. State (2022 YLR 885 Quetta), Badar-ud-Din v. State (2022 MLD 1346), Muhammad Uzair v. State (2022 MLD 368 Peshawar), Muhammad Ejaz alias Ajju v. State (2022 PCr.LJ 1102 Lahore), and Muhammad Razi alias Muhammad Khalil v. State (2022 MLD 887 Gilgit-Baltistan Chief Court).

20. Instant is a case of solitary eye-witness, the learned counsel for the appellants argued, adding that the complainant, being closely related to the deceased, his testimony cannot sustain conviction on a capital charge for being a highly interested witness. No, in criminal cases, the quality of evidence matters more than its quantity. A conviction can be validly recorded and sustained based on the testimony of even a solitary eye-witness, provided it is credible, truthful, and inspires confidence. It is worth noting that an interested witness is not necessarily one who is closely related to the deceased, but the one who has a motive to falsely implicate an accused. It is a well settled exposition of law that mere relationship of an eye-witness, with the deceased is not sufficient to discard his testimony, rather it must be established that the witness had a motive for falsely implicating the accused. Furthermore, there is no universal principle that related witnesses must always be disbelieved and disinterested witnesses believed or vice versa. The decision to believe or disbelieve a witness depends on the intrinsic value of the testimony provided. The reason is that a related witness can neither be inherently truthful, nor dishonest in each and every case, and the same applies to a witness who has no relationship with the deceased. There might be instances where a disinterested witness may be dishonest for hidden reasons unless disclosed those reasons through explicit words or actions. Therefore, it entirely hinges on prudence and reasonableness to determine whether the testimony of a particular witness, regardless of whether he is closely related or disinterested, is natural and inspires confidence or not. As in the instant case, we find the testimony of the complainant natural and inspiring confidence, therefore, the mere fact that he is either a closely related or solitary eye-witness would not diminish the inherent worth of his testimony. In holding so, we place reliance on what the Supreme Court of Pakistan ruled in Muhammad Ijaz v. State (2023 SCMR 1375) and Khalid Mehmood alias Khaloo v. State (2022 SCMR 1148). Furthermore, in Asfandiyar v. The State and others (2021 SCMR 2009), the Supreme Court of Pakistan held: Law does not require a particular number of witnesses to prove a criminal charge and statement of a solitary witness with a ring of truth is more than sufficient to drive home the charge; corroboration is a rule of prudence and not law and cannot be invariably insisted in every case.

21. Similarly, in Muhammad Sadiq v. State (2022 SCMR 690), the Supreme Court of Pakistan held: So far as the question that the complainant was mother of the deceased, therefore, her testimony cannot be believed to sustain conviction of the petitioner is concerned, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case.

22. Moreover, five lives of the complainant's blood relatives, including his father, brother, and cousins, were taken, with their bodies riddled with bullets. Therefore, it is highly unlikely that the complainant would opt to charge innocent, and let the actual culprits go free, especially when there was no ostensible reason for him to do so. In cases of such brutalities, substitution becomes a rare phenomenon, and no compelling reason can be pinpointed as to why the actual culprits were let off and the appellants were nominated. In this regard, we may also refer to the case of Maskeen Ullah and another v. The State and another (2023 SCMR 1568). Reference may also be made to Haq Nawaz v. The State (2022 YLR 721 Lahore). In this case, a somewhat similar issue was addressed in the following manner: Mahboob Hussain (PW-7) and Riaz Hussain (PW-8), being the real brother and the paternal cousin of the deceased respectively, had no reason to falsely implicate the appellant in the commission of the offence by substituting him and letting off the real culprits more so when the appellant was also related to the witnesses. There is no such material available on record which would indicate substitution of the appellant in the case with the real culprit. Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of "Irshad Ahmad and others v. The State and others" (PLD 1996 SC 138).

23. The learned counsel for the appellants pointed out to what he termed a cross version of the occurrence recorded vide FIR # 323, dated 12.06.2014, under sections 337-F(ii) / 337-L(ii) / 148/149 P.P.C. at Police Station Cantt, Bannu. We thoroughly perused the record of the referred case, where on the eventful day, at 09:15 a.m., the appellant Khooba Noor, in injured condition, lodged a report in the Emergency Ward of Civil Hospital, Bannu. According to his report, on the eventful day, at 07:00 a.m., he was proceeding towards his landed property to collect hay. When reached near the fields of one Sakhi Marjan, he encountered the deceased Farid Ullah, armed with a Kalashnikov, Sher Adat Khan, Zahid Ullah, Gul Raip Khan, and Khalid Khan (absconder), armed with sickles. Farid Ullah aimed his Kalashnikov at the complainant, while Sher Adat Khan and Khalid Khan attacked him and gave him sickle blows due to which he received injuries. Motive for the occurrence was disclosed as a dispute over pathway.

24. The learned counsel is of the view that not only the factum of causing injuries in the referred case to the appellant Khooba Noor. but the real facts have also been concealed by the complainant Noor Aslam Khan. According to him, this concealment is sufficient to hold the complainant's testimony not worthy of reliance. We find ourselves unable to agree with what the learned counsel submitted. We refrain from delving deeply into the merits of the referred case, as if we were to render any findings qua merits, there is a likelihood of either party being prejudiced at trial, as the accused charged therein is still on the run. Nevertheless, we are compelled to consider and opine on whether the case qualifies as a cross version of the occurrence, so as to properly attend to the contention made at the bar.

25. There is no denial to the fact that in order to establish a cross version of a particular case, it has to be proved that the parties, date, time, and place of the crime are one and the same. Failing this, it cannot be stated that the case is one of cross version. In this context, we find the time of occurrence in both versions as different, and the place of the crime, too, has not been established to be the same. In this case, the time of the occurrence is mentioned as 07:00 a.m., which is supported by the record. In the referred case (FIR # 323), though the time of occurrence is mentioned as 07:00 a.m., but the same is not supported by the record. In this regard, the MLC Ex.PW-3/1 of the appellant is worth perusal. It shows his arrival time at the hospital as 07:20 a.m., with the probable duration of his injuries as 01 to 02 hours. We juxtaposed the time of occurrence with the probable duration of injuries of the appellant. If we consider the minimum time of the injury, then the time of the occurrence would suggestively be around 06:20 a.m., not 07:00 a.m. In the same manner, if we consider the maximum time of the injury, then the time of the occurrence would suggestively be around 05:20 a.m., not 07:00 a.m.

26. Moreover, no blood has been recovered from the place, where the appellant Khooba Noor has allegedly received the injuries. In other words, the element of 'same place of the occurrence' is still a begging question which was a must for holding the case one of cross version. Furthermore, if at the same time, the complainant party had been in possession of sophisticated weapon like Kalashnikov, and the occurrence had taken place at the same crime scene, then, the result would have been different, considering the prosecution plea in this case that as many as five lives were taken from the complainant side by the appellant / accused party. It is an amazing fact that the appellant was the only assailant, that too, empty handed, but the complainant party still lost five lives. This aspect of the case strongly negates the stance of the appellant as far as the time and the place of the crime is concerned. As neither the time of the occurrence, nor the place of the occurrence of the alleged cross case could coincide with that of this case, nor the stance of the appellant instills our confidence as aforesaid, therefore, we are not hesitant to hold that the contention of the learned counsel is devoid of any force, therefore, repelled.

27. As many as six persons of the complainant party were heading to their landed property to harvest the wheat crop, yet only a single sickle was recovered by the I.O. from the spot, the learned counsel for the appellants pointed out, arguing that this aspect is suggestive of the fact that there must have been a single person initially present there for harvesting and the attraction of the rest of the five to the spot would be in response to something that happened on the spot prior to the present occurrence. The attraction and/or presence of all six persons of the complainant party at the spot in such circumstances would be for a purpose obviously not good, the learned counsel contended, adding that the recovery of a wheelbarrow and a sack having hay from the spot by the I.O. justifies the report of the appellant Khooba Noor recorded vide FIR No. 323, wherein he specifically complained that he was going to collect hay from his landed property when he was attacked by the complainant party, resulting in his injuries.

28. We find these arguments unconvincing. The record shows that the complainant, in reply to a question during cross-examination, stated that he and the deceased Sher Adat Khan had harvested some 10 marlas of land. He further replied that they had only two sickles, while the rest were going to make bundles of the harvested crop. In reply to another question, the complainant explained that the wheat crop, after being harvested, was gathered and bundles were being made after the same was dried with sunlight till late afternoon, as in the morning, the dew had made the crop wet, capable of being properly bundled. It is quite natural that farmers leave harvested crops in the sunlight during the day and make bundles in the morning after the dew makes the harvested crop wet at night. Notably, harvesting a wheat crop does include making of bundles. Moreover, the complainant further explained in his cross-examination that they had left the two sickles at the crime scene after the occurrence, where one was found by the I.O., while the second was missing. In any case, we are fully satisfied on the basis of the evidence presented that the complainant party was indeed proceeding with the sole purpose to harvest the wheat crop. Therefore, the mere fact that only a single sickle has been recovered does not create reasonable doubt in the prosecution case, as the sickles are directly associated with the purpose of the visit of the complainant party, which has otherwise been established.

29. In the FIR, the complainant stated that the assailants fired at them when they reached the pathway, but during the spot inspection, it surfaced that not all the five deceased were shot dead on the pathway, rather the recovery of bloodstained earth of deceased Farid Ullah Khan and Sher Adat Khan from the field of Yaqoob Nawaz suggests that these two were shot dead in that field, whereas, the recovery of bloodstained earth of the deceased Gul Raip Khan from the side of the pathway towards the field of Sakhi Marjan suggests that he was shot dead at that particular point, and not on the pathway as mentioned by the complainant, the learned counsel argued, maintaining that the bloodstained earth of all the five deceased should have been recovered from the pathway, that too, from a shortest possible radius in view of the fact that the complainant and the four deceased, except his father, had been walking jointly. This, according to him, is the clear manifestation of the fact that the occurrence did not unfold in the alleged manner. We are not convinced for compelling reasons.

30. Firstly, the FIR is not supposed to reflect the story of the commission of the crime in minute details. Rather, its purpose is to furnish the very first information regarding the commission of a cognizable offence. In such distressful cases, it is not expected from an eye-witness to state in the FIR everything happened with such precision so as to make a photographic narration of an event.

31. Secondly, the complainant specifically mentioned in the FIR that when they reached the pathway, the assailants emerged from the side of Sakhi Marjan's field and on reaching near the complainant party, started firing at them. This implies that the assailants did not directly fire at the complainant party right from the place wherefrom they emerged. Noteworthy in such like circumstances becomes the reaction of the complainant party as to what they did after seeing the assailants in such an alarming position. Relevant in this regard is the explanation the defence itself brought out from the complainant during his cross-examination, where the complainant explained that by the time the assailants were starting firing, the deceased started running in different directions to make good their escape, and, as a result, the assailants also scattered in pursuit of their target, while the complainant laid down on the ground. As it is manifest, and one with a prudent mind can reasonably infer, from the peculiar facts and circumstances of the case that the assailants did not directly start gunfire at the complainant party right from the place of their emergence, and in the same manner, the complainant party having seen the assailants emerging in an alarming position, knowing the assailants to be about to start firing at them, it was quite natural for the deceased to run in different directions in an attempt to make good their escape, as they were not supposed to stand like a statue despite knowing that the assailants would take their lives. When so, it was equally natural for the assailants to scatter in pursuit of their target. Most importantly, the pathway lies in the mid between both the aforesaid fields, and the recovery of bloodstained earth, as pointed out by the learned counsel, suggests that the deceased had just run a few paces from the pathway towards the respective fields. Considering the peculiarity of the physical circumstances of the case, the mere fact that the complainant did not mention in the FIR the few paces distance the deceased covered in making good their escape is no ground to dislodge the ocular account, which we otherwise found natural and confidence inspiring.

32. Thirdly, the prosecution is bound to establish the guilt of the accused by proof beyond a reasonable doubt, a standard that requires the Court to conclude that the accused is guilty beyond a reasonable doubt before recording a conviction. It needs no reiteration that such proof should be based on logical reasoning and evidence, not on sympathy or prejudice. This standard excludes every reasonable hypothesis except guilt. Notably, the prosecution is not required to establish the guilt of the accused with absolute certainty, as proof with absolute certainty is not only seldom, but also goes beyond the concept of proof beyond a reasonable doubt. Therefore, if the court is clear in its mind on the basis of evidence before it that the accused has committed the offence, it must convict the accused, as it demonstrates the satisfaction of the Court that the accused is guilty beyond a reasonable doubt. Here, it is equally important to mention the contrary, where the Court must acquit the accused if there is something in the evidence or lack of evidence that leaves a reasonable doubt as to the guilt of the accused in the judicial mind, even though the Court believes that the accused is probably or likely to be guilty, because such a belief does not meet the standard of proof beyond a reasonable doubt. Reliance is placed on Muhammad Asghar alias Nannah and another v. The State (2010 SCMR 1706), wherein the Supreme Court of Pakistan held:

9. Thus the proof beyond a reasonable doubt should be based on reasons and commonsense, which must be logically based upon the evidence or lack of evidence, however, it cannot be based on sympathy or prejudice, or be imaginary or frivolous. Nevertheless, the prosecution is not required to prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved. Proof beyond a reasonable doubt does not mean proof beyond all doubts. The law does not require absolute certainty on the part of the Court before it returns a verdict of guilty. The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of Judges, as reasonable men reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted, even if the Court/Judge believes that the accused is probably guilty or likely to be guilty, that is not sufficient. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion. Reference is invited to (State v. Ryerson, 201 Conn. 333, 342 (1986), (State v. Hires, 243 Conn 796, 820 (1998) and (State v. Denson, 67 Conn, App 803, 802-22 (2002). Thus, if the Judge is sure, on the evidence produced by the prosecution that the accused has committed the offence, then he should be convicted as it shows that, the Judge is satisfied of guilt of the accused beyond a reasonable doubt. (Underlines are ours for emphasis)

33. As on the basis of evidence collected and presented, we are firm in our view that the appellants are guilty as per the standard of proof beyond a reasonable doubt, therefore, considering the peculiarity of the case, the mere non-mentioning in the FIR that while being hit, the deceased ran a few paces in an attempt to save their lives or, in the same manner, the assailants, too, did so in pursuit of their target does not leave a reasonable doubt as to the guilt of the appellants.

34. Referring to some minor discrepancies and contradictions, the learned counsel for the appellants argued that the benefit of every discrepancy and contradiction in the prosecution case, no matter how minor those may be, should be extended to the appellants because the prosecution is duty bound to prove the charge beyond any doubt. As noted above, we find that the complainant remained firm and consistent regarding the core facts of the case. The defence could not impeach his credit as regards the pre and post occurrence circumstances, nor could his presence be doubted under any stretch of imagination. There is now a judicial consensus that minor discrepancies or contradictions in the prosecution evidence should be disregarded as long as the core facts remain consistent. As held by the Supreme Court of Pakistan in Aqil v. State (2023 SCMR 831), parrot like statements are discredited by the Courts, as it is normal for minor discrepancies or inconsistencies to occur while narrating a particular incident. Furthermore, in appreciating the effect of minor discrepancies and contradictions in the prosecution case, the Supreme Court in Shamsher Ahmad and another v. The State and others (2022 SCMR 1931) unequivocally held that undue importance should not be attached to such discrepancies that do not shake the salient features of the prosecution case. Rather, they should be ignored. The accused cannot claim a premium for such minor discrepancies, and attaching too much importance to such insignificant inconsistencies would undermine the purpose of the administration of criminal justice, which is not solely intended for acquittals based on minor discrepancies. Considering the overwhelming and trustworthy nature of the prosecution evidence and the law laid down in the judgments (supra), we are not hesitant to repel the contention made by the learned counsel at the bar.

35. Examining the medical evidence, we find that the post-mortem reports Ex.PW-4/1 to Ex.PW-4/5 reveal that the deceased lost their lives as a result of sustaining firearm injuries. The probable time that elapsed between injury and death is given as less than half an hour, suggesting that the deceased died at the spot as claimed by the complainant. The probable time between death and post-mortem is shown as 1-1/2 to 02-1/2 hours, which coincide with the time of the occurrence, the time of the report, and the time required for the preparation of inquest reports and the shifting of the bodies to the mortuary for post-mortem examination. In these circumstances, it can be safely concluded that the medical evidence supports the ocular account to a greater extent. We may observe that whenever the ocular account has been found trustworthy and confidence inspiring, and the medical evidence has corroborated the ocular account, then convictions have often been upheld by the Supreme Court of Pakistan. For instance, the cases of Muhammad Yasin v. State (2024 SCMR 128), Sohail Akhtar v. State (2024 SCMR 67), and Maskeen Ullah v. State (2023 SCMR 1568) are few to refer in this regard.

36. Adverting to the circumstantial evidence, we would now examine the recoveries. As many as seven empties of .30mm bore and eight crime empties of 7.62mm bore were recovered from the crime scene. The presence of all the appellants and the firing by each one of them using pistols and Kalashnikovs, coupled with the FSL report confirming that the empties were fired from different weapons, substantiate the prosecution case. This aspect not only excludes the possibility of the offence being committed by a single assailant, but also points towards the involvement of more than one assailant in the commission of the offence. The bloodstained earth from the respective places and the bloodstained garments, with their positive FSL report, further strengthen the prosecution case. The site plan, as discussed above in detail, also fully buttresses the prosecution case.

37. Regarding motive, the prosecution asserts a dispute over a pathway. In his examination-in-chief, the complainant specifically pleaded this dispute as the motive behind the tragic incident. The prosecution also produced Munawar Khan, Patwari Halqa, as PW-02 in the previous trial, and PW-10 in the subsequent trial, who produced revenue record to substantiate the dispute between the parties. As the ocular testimony on the motive remained unshaken and the testimony of the patwari halqa, along with the revenue record, strongly substantiated the existence of the pathway dispute, the motive has been established against the appellants, which bolsters our belief as to why they perpetrated the offence. Moreover, appellant Hazrat Noor admitted this dispute in his statement under section 340(2) Cr.P.C. Therefore, even if we exclude the evidence regarding motive, conviction can still be maintained as the ocular testimony is otherwise natural, trustworthy, and confidence inspiring, beside being strongly supported by the medical evidence and the circumstantial evidence.

38. It further transpires that the appellants Naza Noor Khan and Badi-uz-Zaman went into hiding after the commission of the offence. They remained absconders from 11.05.2014 until their arrests on 02.07.2019 and 01.10.2019, respectively. They failed to offer any plausible explanation for their absconcion. Warrants under section 204 Cr.P.C and proclamations under section 87 Cr.P.C were issued and executed against them. Eventually, they were declared as proclaimed offenders. In these circumstances, their wilful and deliberate abscondence serves as a relevant fact that further strengthens the case against their involvement in the offence. In Qaisar Khan and others v. The State and others (2009 SCMR 471), the Supreme Court of Pakistan has held:

11. No doubt, abscondence by itself is not sufficient to convict an accused person, but is strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. When an accused person remains fugitive from the law for long time without any plausible and reasonable explanation, then his conduct after the occurrence becomes indicative of his guilt when it is considered in conjunction with the ocular and circumstantial evidence, as held by this Court in Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036.

39. The reappraisal of the entire evidence unequivocally demonstrates that the prosecution has successfully discharged the burden of proof beyond a reasonable doubt. However, the appellant Hazrat Noor took a plea of alibi. He has also recorded his statement under section 340(2) Cr.P.C and presented his defence evidence. His alibi defence states that he was serving as a Machine Operator at Hydel Power Station WAPDA, Kurram Ghari-II, Bannu. On the fateful day, he left his house at about 05:30 a.m. and arrived at his duty station within 20 to 25 minutes, and remained on duty until 12:30 p.m. He claims that Security Incharge Sharif Ullah Khan opened the entrance gate for him at his duty station, and he took charge from his predecessor Muhammad Rafiq at about 06:00 a.m. To substantiate his alibi and innocence, the appellant has produced a copy of his duty-shift schedule, daily log sheet, attendance register, an application to the IGP, progress report, receipt, and copies of the register of dispatched letters.

40. In his cross-examination, the appellant admitted that on Bannu Miranshah Road, which leads to his duty station, there was a routine curfew on Sundays, the day of the occurrence. He also admitted that he did not produce a shift-wise program to the I.O. or even at the time of recording his statement before the trial Court. While the appellant claimed that shifts were not regulated by a written program but by mutual consent and understanding among officials since the inception of the Power House, he failed to substantiate this claim. The officials responsible for regulating the shift programs and the immediate officer who permitted such operations were not produced to support the stance of the appellant. Neither the Security Incharge Sharif Ullah Khan, nor Muhammad Rafiq, from whom the appellant took over duty on the day of the occurrence at 06:00 a.m., were produced to substantiate his presence at the place of his duty at the fateful time. Notably, no plausible reason was given for this omission. In these circumstances, adverse inference under Article 129(g) of the Qanun-e-Shahadat Order, 1984 can be drawn against the appellant, indicating that if these witnesses had been produced, they would not have supported the stance of the appellant. In this regard, reference can be made to Manzoor Hussain alias Mama v. The State (2014 PCr.LJ 744 Balochistan).

41. The appellant also examined Ikram Ullah Khan, ARE, as DW-01. The witness stated that on the day of the occurrence, he had seen the appellant present at the place of his duty. In his cross-examination, he stated that on the day of the occurrence, Salahud Din, Habibur Rehman, Umer Javed, and Hazrat Noor (the appellant) used to work as operators at Power House No.2. Notably, these officials were not produced at all to establish the appellant's presence at the power house at about 06:00 a.m. Moreover, the claim of the appellant that he took over charge from Muhammad Rafiq was contradicted when DW-01 did not name Muhammad Rafiq as one of the operators during the days of the occurrence.

42. While DW-01 stated that he saw the appellant on duty on the day of the occurrence, he was unable to disclose exactly when the appellant arrived at the place of his duty. This aspect was crucial because the occurrence took place at 07:00 a.m., and if the witness had seen the appellant on duty 20 to 25 minutes after that time, it would not support the appellant's plea of alibi, as it was possible for the appellant to arrive at his duty place within 25 minutes after the occurrence. In his statement, the appellant admitted that the ARE (DW-01) used to sign the attendance register at about 09:00 a.m. or 9:30 a.m., indicating that the ARE had neither arrived at the power station by 07:00 a.m., nor seen the appellant on duty at that crucial time.

43. The appellant and DW-01 contradicted each other regarding the maintenance of a shift-wise program in the power house in writing. The appellant claimed that no shift-wise program was maintained in writing for operators to manage affairs. Conversely, DW-01 admitted it correct that a shift-wise program is maintained in power houses in writing.

44. Moreover, no written order, duly issued by the competent authority, fixing duty hours and assigning duties to the appellant and other officials to perform their respective duties at that specific time, has been produced. In the absence of such crucial piece of evidence, it cannot be established whether the appellant was assigned duties or was indeed on duty at the fateful time.

45. Pursuant to this Court's judgment, dated 07.11.2017, in Criminal Appeal No.20-B/2016, Umer Javed, Incharge Power Houses No.1 and 2 was examined as CW-01 to produce the record the record of the whole month pertaining to the attendance register of the two power houses in regard to visit of DW-01 on the day of the occurrence to power house No.2 in order to determine when exactly the appellant had entered and left the power house No.2 on the day of the occurrence. In his examination-in-chief, the witness stated that as per the daily log sheet of 11.05.2014, the day of the occurrence, three shifts incharge have put their signatures. According to him, the first shift incharge as per the signature was Salah-ud-Din and the second shift incharge, the relevant shift, as per the signature put was operator Hazrat Noor, the appellant. In cross-examination, the witness categorically stated that according to log sheet, dated 10.05.2014, the second shift was run by operator Salah-ud-Din. The same was the case on 08.05.2014 and 09.05.2014, the witness admitted. While the witness stated that on the fateful day of 11.05.2014, the first shift incharge Salah-ud-Din handed over charge to the second shift incharge Hazrat Noor, the appellant, yet he admitted it correct that no written shift-wise program is available with him. No doubt, the witness claimed that this happened because no written shift-wise program was maintained, but the fact remains that the shift incharge Salah-ud-Din was not examined to confirm the fact the witness stated. Needless to mention, this was a must in the absence of any written program. However, this is one side of the picture, and if we see the other side, it would reveal that in his statement under section 340(2), the appellant claimed that he had taken over the charge from Muhammad Rafiq. As the CW-01 stated that the appellant took over the charge from operator Salah-ud-Din, while the appellant himself stated in his statement that he took over the charge from operator Muhammad Rafiq, therefore, the two significantly contradicted each other on material aspect of the plea taken by the appellant.

46. In the face of such glaring discrepancies, contradictions, and material dents in the defence evidence, the mere fact that the appellant produced his attendance register showing him to have marked his attendance on the fateful day or the mere assertion by the defence witnesses that the appellant was on duty on the day of the occurrence would not be sufficient to prove his plea of alibi. This is because such attendance could well be marked afterward, especially when the occurrence had taken place early in the morning and when the inter se distance between the crime scene and the place of duty of the appellant was as short as 25 minutes.

47. In Muhammad Iqbal v. The State and others (1996 SCMR 908), accused had taken plea of alibi. The I.O. opined the accused to be innocent considering the number of witnesses supporting his alibi plea. The accused was acquitted by the High Court. However, the Supreme Court reversed the acquittal, holding that neither the opinion of the police regarding the innocence of the accused had any binding effect, nor did the accused produce the witnesses of his alibi plea. In these circumstances, we are confident in holding that an accused, who takes a specific plea of alibi but fails to produce the most relevant witnesses without any plausible reason, who could substantiate his presence at the place other than the crime scene at the fateful time, then in the absence of any other overwhelming evidence to the contrary, the plea of alibi should not be accepted. Considering the substantial discrepancies and contradictions in the defence evidence, we are not hesitant to hold that the appellant has failed to prove his alibi plea, and the appellants could not successfully discharge the onus to justify their innocence.

48. Given the number of casualties, the number of entry wounds sustained by each deceased, the number of crime empties recovered from the spot, along with their positive FSL report indicating the involvement of multiple individuals in the crime, and failure of the appellants to prove the contrary, it can safely be concluded that the number of accused has not been exaggerated.

49. Now, the question that arises for our consideration is that when the prosecution has successfully discharged the initial burden and when the appellants have been proved guilty beyond a reasonable doubt, then what should be the appropriate quantum of the sentence, as the complainant has filed the connected revision petitions for its enhancement. In our view, as many as nine persons have been charged for causing the qatl-i-amd of as many as five persons. It is uncertain as to whose fire shots proved fatal, as all the accused have been saddled with the general role of firing at the complainant party. Therefore, in this perspective, the quantum of the sentence does not justify interference. In this regard, guidance can be sought from Atta-ur-Rehman and another v. The State (2018 SCMR 372). In this case, the allegations levelled against the appellants and their co-accused were joint and common, with no specific injury being attributed to any particular accused person. It was, thus, not clear as to which one of the accused persons, including the appellants, was actually responsible for causing the fatal injuries to the deceased. Consequently, it was ruled that generally a sentence of death is withheld in such circumstances when it is not clear whether a particular culprit was actually responsible for causing a death or not. The sentences of death were accordingly reduced to imprisonment for life. This view was also followed in Ishtiaq Ahmed v. The State and another (2020 PCr.LJ Note 43 Sindh). In this case, a general role of firing was attributed to the appellant who was sentenced to death. In appeal, a learned Division Bench upheld the conviction but reduced the sentence to life imprisonment for the reason that the allegations levelled against the appellant were generalized in nature and no specific role had been attributed to him. As we are clear in our minds that the quantum of the sentences is in consonance with the settled norms of law, and no good ground for their enhancement could be established, therefore, no interference is called for.

50. With these observations in mind, we are constrained to hold that the prosecution has successfully proved the charge against the appellants through compelling and confidence inspiring evidence beyond any reasonable doubt. Not being persuaded that there was no sound basis for adjudging the appellants guilty, we are unanimous to hold that the trial court has thoroughly appreciated the evidence presented, as such, the impugned judgment is not open to any interference by this Court.

51. We would uphold the convictions, and, as a result, deny the appeals and the revisions. JK/6/P Appeals dismissed.