2026 P Cr (PLP)

Mushtaq Muhammad, J.

The striking feature of the case in hand is the inordinate and unexplained delay of three years and one month which was consumed after termination of trial till pronouncement of judgment. After recording statements of defense witnesses on 13-03-2020 trial was completed and instead of its decision in view of the legal requirement of Section 366(1)(a) Cr.P.C. the case was adjourned on different reasons/excuses for a period of two years and seven months for the hearing of arguments till 01-10-2022. On Ist October 2022 arguments were heard and the judgment was pronounced on 05-04-2023 six months after hearing of arguments. The case is marred by an unexplained and unjustified delay of three years and one month next after conclusion of trial. Such protracted proceedings and dilatory maneuvers plague the Criminal justice system, eroding its effectiveness and credibility.

2. The above cited criminal appeal is directed against the impugned judgment of conviction dated 05/04/2023, recorded by the learned Additional Sessions Judge, Diamer (trial Court) in Session Trial No. 160/2016, whereby the learned trial court has convicted the appellant Sher son of Gushpoor, under section 302/114/34 P.P.C. For a ready reference, the relevant line from the impugned judgment of conviction is reproduced hereunder: "I find present accused guilty under sections 302/114/34 P.P.C and convict him for life." Learned trial court did not record its reasons for not awarding the compensation to the complainant party under section 544-A Cr.P.C. Similarly, the learned trial court while passing the aforesaid sentence has not given the benefit of S.382-B Cr.P.C to the convict/appellant as it is on record that convict/appellant was arrested on 27-05-2014 and was released on bail on 13-12-2014. Besides the above referred shortcomings in the impugned judgment of conviction dated 05-04-2023, the judgment rendered by the learned trial court is not in the legal format as described in section 367 Cr.P.C. Section 367 Cr.P.C obligates the court to deliver a formal judgment at the end of trial. The section further prescribes the format of the judgment, which shall comprise three components: (i) the points for determination, (ii) the reasons, providing justification for the sentence or order of acquittal, and (iii) the decision with corresponding order. The impugned judgment of conviction dated 05-04-2023 lacks all the three mandatory components of a valid judgment as mentioned in section 367 Cr.P.C. The impugned judgment of conviction dated 05-04-2023 is violative of section 367 Cr. P.C and the directions issued by this court in the case cited, "Shahzad Hussain and others v. The State and another" (2024 PCr.LJ 1383).

3. It is on record that on 17-03-2017, learned trial court categorically charged the convict /appellant under single head i.e. for his alleged abetment in the occurrence. On the contrary, learned trial court has convicted the appellant for causing intentional death of deceased Abdul Qayum, Abdul Sadiq and Abdul Mutalib son of Khalil and sharing common intention punishable under section 34 P.P.C This deviation of the learned trial court is neither mentioned in the impugned judgment dated 05-04-2023, nor the learned trial court at any stage of trial altered the charge by exercising the jurisdiction under section 227 Cr.P.C, nor is the same justified with any cogent reasons.

4. Necessary facts behind the occurrence dated 21-05-2014 are that on the day of occurrence at about half past seven o' clock morning, the principal accused Abdul Raquib, his father Samandar Khan (proclaimed offenders) along with the convict/appellant arrived at the place of occurrence as described in the document site plan Ex. PW-5/A. It is in the FIR Ex.PW-5 that, convict /appellant and the proclaimed offender Samandar Khan were present on the spot of occurrence unarmed. It is in the document Ex PW-5 that accused Abdul Raquib was duly armed with a kalashanikov. Complainant Khalil father of the deceased souls in his initial report has mentioned that on the command of convict/appellant and accused Samandar Khan (p.o) the principal accused Abdul Raquib (p.o) opened fire at the deceased Abdul Qayum, Abdul Sadiq and Abdul Mutalib, and receiving the bullet injuries all the three sons of complainant Khalil breathed their last on the spot. After the occurrence convict/appellant and the proclaimed offenders disappeared from the scene of occurrence. According to the FIR Ex. Pw-5 the motive behind the occurrence is a dispute over a patch of land. Eye-witnesses of the occurrence are named in the FIR. According to the FIR, complainant the father of deceased above named despite of the tragic incident, reported the occurrence within two hours after travelling a twenty seven miles of distance from "Makhili", which is a high altitude pasture area, to settled area "Thore". After registration of the case, police started investigation and collected some corroboratory evidence of the occurrence, prepared the site plan and recorded the statements of witnesses on the same day. Ironically, complainant Khalil, father of the deceased above named, promptly reported the occurrence but on the other hand, he obstructed the police during investigation process and restrained the police from procuring the crucial corroborative evidence by not allowing the post mortem of the dead bodies. What is even more distressing is that the police, by accepting the application Ex. Pw5/1, handed over the dead bodies to the complainant for burial. In this manner, the complainant and the investigating officer caused disappearance of evidence in a case of capital punishment and this act of the complainant and investigating officer is cognizable under section 201 P.P.C.

5. After completion of investigation, police filed interim report No. 10/2014, to the extent of convict/appellant pending the process of proclamation and attachment under sections 87 and 88 Cr.P.C against the accused under absconsion.

6. Learned trial court framed a formal charge against the convict/appellant on 07-03-2017, to which he pleaded not guilty and trial against the convict /appellant commenced. Statements of complainant Khalil, Mst. Gul Chinar and Haider Khan were recorded on 03-04-2017. Statement of Pw. Yarqamoon was recorded on 10-10-2017 and learned DPP abandoned the pws Abdul Wadood and Yousuf. On 08-11-2018 after examining the 10. prosecution closed its evidence. On 29-04-2019 convict/appellant was confronted with the recorded prosecution evidence. Convict/appellant did not take the specific defense of "Alibi" and did not enter in the witness box but he was allowed to examine DWs on that point. After the termination of trial on 13-03-2020, learned trial court after consuming a three years period passed the impugned judgment of conviction on 05-04-2023. Felt aggrieved with the impugned judgment of conviction dated 05-04-2023, the convict/appellant has called in question the same through the appeal in hand.

7. Arguments have been heard on 24-09-2025. Learned counsel appearing on behalf of convict/appellant mainly emphasized on the point that conviction passed against him is unfounded as it is on record proved that at the relevant time of occurrence he was present there at the place of occurrence unarmed. Learned counsel added that regarding the particular charge of abetment, there is no direct evidence. He lastly prayed that by accepting the appeal, the conviction passed against him may be set aside and he may be acquitted of the charge. On the other hand, learned DAG contested the arguments of learned counsel and replied that there is direct evidence against the convict/appellant regarding his command to the principal accused Abdul Raquib to open fire at the deceased. Learned DAG referred the statements of complainant Khalil, Mst.Gul Chinar and Haider Khan. He added that presence of the convict/appellant at the place of occurrence is proved on record and his plea of Alibi cannot be accepted being an afterthought. Learned DAG lastly prayed that appeal being devoid of merits may not be accepted.

8. Keeping in view the divergent submissions of the learned counsel for the convict/appellant and the learned DAG, we have perused the record and deliberated over the matter. By way of the criminal appeal, the convict/appellant challenges the merits of the impugned judgment of conviction to his extent and his sole argument is that he did not play vital role in the occurrence. The essential facts underpinning the charge against the convict/appellant are that whether on the day of occurrence he was present there at the place of occurrence with a clear motive to kill his nephews, whether the principal accused Abdul Raquib was under the direct and irrefutable command of the convict/appellant and whether the convict/appellant abetted the commission of the offense? Prosecution's case rests on the oral testimony of three eye-witnesses and the corroboratory evidence which consists of the recovery of crime empties, blood stained soil and last worn clothes of the deceased. All the three eye-witnesses implicated the convict/appellant for his issuing command to the principal accused Abdul Raquib at the place of occurrence. We have carefully examined the ocular account of the above said three eye-witnesses keeping in view the particular charge of abetment. Abetment is defined in section 107 P.P.C. A bare reading of the definition of abetment it reveals that three kinds of actions are held culpable under section 107 P.P.C. Firstly, that the accused must have instigated any person to do a certain act or omission which caused harm or injury to that person. Secondly, that the accused must have engaged with a person/persons in a conspiracy for doing that particular act or omission and lastly, he must have intentionally aided by doing a certain act or omission, which act or omission causes any injury or harm to that person. Since the convict/appellant was charged for aiding and abetting the crime, therefore the prosecution evidence must contain the evidence showing that convict/appellant has a clear and reasonable intention to abet the offense. Secondly that in a direct particular charge of abetment there must be connection between the abetment and commission of the offense. When the prosecution alleges the act of abetment against any accused, it is the duty of prosecution to bring on record a reasonable evidence to prove any single or more necessary components of the abetment mentioned above. Abetment cannot be inferred merely from the accused's utterances or gestures at the scene of occurrence, such as shouting or pointing. To prove the charge of abetment, it must be shown that the accused was involved in a prior conspiracy with the other accused and actively instigated or extended help to accomplish the criminal act. Accusations of abetment must be based on substantial evidence, demonstrating a clear causal mitigate the potential threats when perceiving an apparent danger. The reported occurrence, seems to defy this logical expectation, making it implausible that the complainant and his sons at their own place, would remain passive and fail to address the anticipated threat.

10. After a thorough examination of the prosecution evidence on record pertaining to the charge of abetment, we are of the considered opinion that the prosecution evidence on the particular charge is insufficient to sustain the conviction passed against the convict/appellant, lacking crucial elements necessary to establish abetment.

11. Impugned judgment of conviction dated 05-04-2023 passed by the learned trial court is perused. Learned trial court has neither discussed the prosecution evidence with reference to the particular charge of abetment nor has recorded a singular reason for passing the conviction and capital punishment against the convict/appellant. Mere reproducing the statements of witnesses in the judgment does not fulfil the legal requirement of section 367 Cr.P.C. Consequently, the impugned judgment of conviction dated 05-04-2023 passed in criminal trial No.160/2016 by the learned trial court, against the convict /appellant Sher son of Gushpoor resident of Makhili Thore Tehsil Chilas is incorrect and flawed, therefore warrants reversal.

12. These are the reasons behind our concise order dated 25-9-2025, which states as follows: "25.09.2025. Mr. Mahfooz-uo-Haq advocate for the convict/appellant present. Mr. Khush Rehman Deputy Advocate General for the State present. I. For reasons to be recorded later in our detailed judgment, which shall follow soon, the Criminal Appeal No. 01/2023 is hereby accepted. Consequently, the judgment of conviction recorded by the learned trial court/Addl. Sessions Judge District Diamer dated 05-04-2023 in criminal trial No. 160/2016 against the present convict/appellant, Sher son of Ghushpoor resident of Makhili Thore Chilas is hereby declared unfounded on two counts. Firstly, the convict/ appellant at the relevant time of the occurrence was empty handed and secondly, that regarding his alleged abetment there is no evidence on the record. Therefore, the sentence passed by the learned trial court against the convict/appellant Sher son of Ghushpoor is hereby set-aside. The appellant Sher son of Ghushpoor be released forthwith if not required in any other case. II. The case against the absconder/accused Abdur Raquib son of Samandar Khan and Samandar Khan son of Ghushpoor both residents of Makhili Thore Chilas is hereby remanded back with the following directions. Firstly, the learned trial court shall inquire and trace the personal credentials and particulars of both the absconders/accused from NADRA. After tracing their particulars, i.e., CNICS, same shall be blocked from NADRA. Secondly, all cellular services and Bank accounts and other facilities of whatever kind operating against their CNICs shall be blocked and suspended. After completion of this proceedings the learned trial court shall issue perpetual warrant and adjourn the case sine-die. Statements of PWs recorded shall be treated evidence in absentia against the absconder accused Abdur Raquib and Samandar Khan. II. Criminal Misc. No. 15/2023 is merged in this order and same is also disposed of accordingly. File." JK/30/GB Appeal allowed.