2025 PLP 2541 (YLR)

Sahibzada Asadullah, J.

This criminal appeal calls into question the judgment dated 25.07.2023, passed by learned Additional Sessions Judge-III/ Model Criminal Trial Court, Nowshera, in case FIR No. 175, dated 18.04.2021, under sections 302/324/337-F(ii) /114/452/ 148/ 149 P.P.C, registered at Police Station Azakhel, District Nowshera, whereby the appellants have been convicted and sentenced in the following manner:- i. under section 302(b) P.P.C, convicted and sentenced to death on seven counts for the murder of Misal Khan, Tahir Ali, Zahid Ali, Bakhtiar Ali, Zabit Khan, Mst. Omeyat and Mst. Sajeela. To be hanged from their neck till they are dead subject to confirmation of sentence by Peshawar High Court, Peshawar. Also sentenced to pay compensation amounting to Rs. 5,00,000/- in respect of each deceased to the legal heirs of deceased under section 544-A Cr.P.C. In case of default of payment of compensation, the convicts shall be liable to further undergo six (06) months SI each. ii. Under section 324 P.P.C, imprisonment for seven years on two counts each, and also liable to pay fine of Rs. 50,000/-for each injured and in case of default shall further undergo six months SI. In addition to the punishment provided for the offence punishable under section 324 P.P.C, the appellants have further been convicted and sentenced imprisonment under section 337-F(ii) P.P.C for three years RI on two counts, and also held liable to Daman amounting to Rs. 50,000/- to each injured. iii. Under section 452 read with section 148 P.P.C, convicted and sentenced to imprisonment for three years RI each with fine of Rs. 20,000/- for each. In case of default of payment, to further suffer two months SI. iv. Benefit of section 382-B Cr.P.C has been extended to the appellants.

2. Facts, in brief, as per contents of the FIR (Ex.PA) are that complainant Anwar Ali, on the day of occurrence reported the matter to the police at casualty Civil Hospital, Pabbi, to the effect that he along with his father Misal Khan, brothers, Said Anwar, Bakhtiar Ali, Tahir Ali, Zahid Ali, Mst Omeyat daughter and Mst. Sajeela, sister-in-law, and other inmates of the house were present in their house, when at about 1430 hours, the accused Sardar Ali, Asal Khan sons of Sobat Khan, Riaz Ali, Mumtaz Ali, Imtiaz and Zarshad sons of Sardar Ali, Mumraiz Ali, Firdous Ali, Saleem, Arif sons of Asal Khan, Zakir, Muhammad Ullah alias Taqeem Ullah sons of Fazal Khan, co-villagers, came to the house duly armed with deadly weapons, and Sardar Ali commanded the remaining accused to kill them, with which all the accused including Sardar Ali, started firing at them, and as a result whereof, Misal Khan, Tahir Ali, Bakhtiar Ali, Zahid Ali, Zabit Khan, Mst omeyat and Mst. Sajeela sustained injuries and died on the spot, whereas the complainant Anwar Ali and Said Anwar, received firearm injuries. Motive behind the occurrence was disclosed as dispute over employment of Bakhtiar Ali, at Tube Well.

3. On conclusion of the investigation, challan was submitted before the learned trial Court for trial, whereas challan under section 512 Cr.P.C was submitted against the absconding co-accused. The appellants were summoned and provided copies of the relevant documents under section 265-C Cr.P.C, and thereafter, they were formally charge sheeted, to which they pleaded not guilty and claimed trial. After commencement of the trial, the prosecution produced as many as 12 witnesses in support of its claim. Statements of accused-appellants were recorded under section 342 Cr.P.C, wherein they professed their innocence, however, neither opted to produce defence evidence, nor to be examined on oath under section 340(2) Cr.P.C. On conclusion of the trial, the learned trial Court convicted and sentenced the appellants in the manner stated to above, hence, the instant appeal.

4. The learned counsel for the parties were heard at length along with learned Addl. AG and with their valuable assistance the record was scanned through.

5. The heart-wrenching incident claimed the lives of 07 innocent persons, while leaving two injured. The dead bodies along with the injured were shifted to Civil Hospital, Pabbi, where the complainant reported the matter and the same was verified by the injured eye-witness. After the report was made, the injury sheets and inquest reports were prepared. The injured were examined by the doctor, their medico legal certificates were prepared and thereafter both the complainant and the injured eye-witness were referred to Peshawar for further treatment. The dead bodies were sent for postmortem examination. The investigating officer after collecting copy of the FIR visited the spot and on pointation of the eye-witnesses prepared the site plan. During spot inspection the investigating officer collected blood from the respective places of the deceased and the injured. During spot inspection 27 empties of 7.62 bore were collected from the spot along with 05 empties of .30 bore and an empty of 8-MM bore. The recovered empties were sent to the firearms expert for ascertaining the fact that from how many weapons the same were fired. After examination five empties of .30 bore were found to have been fired from one weapon, 27 empties of 7.62 bore were confirmed to have been fired from different weapons. It is pertinent to mention that on discharge of the complainant and injured eye-witness, from hospital, they verified the site plan, already prepared on the pointation of the eye-witnesses. The record tells that it was on 06.05.2021 that the accused/appellants were arrested and in that respect relevant entries were made in Naqal Mad No. 13 dated 06.05.2021. According to Naqal Mad No. 13, one Iftikhar Khan ASI, received information regarding the fact that the accused/appellants, who were required in case FIR No. 175 Police Station Azakhel, were leaving for Punjab, in a motorcar bearing registration No. RIV/9630. The motorcar was stopped and the accused/appellants were arrested. It is pertinent to mention that out of the accused from accused Saleem and Arif Kalashnikovs were recovered, the same were taken into possession and in that respect two FIRs i.e. FIR No. 189 and 190 under section 15 AA were registered. The Kalashnikovs were shifted to the Police Station where those were kept in malkhana. Subsequently, the investigating officer took the same into possession in the instant case. Initially, the empties were sent to fire arms expert to ascertain as to whether the same were fired from one or different weapons. The report was received explaining the fact that 27 empties of 7.62 bore were fired from different weapons whereas 05 empties of 30 bore were confirmed to have been fired from one weapon. When the investigating officer took the Kalashnikovs in possession the same were sent to the fire arms expert along with the collected empties to ascertain the relationship between the recovered weapons and the collected empties. A report was received where out of 27 empties of 7.62 bore, 17 matched with the weapon recovered from possession of the appellant Saleem, but no empty was matched with the weapon recovered from the appellant Arif. The accused faced the trial and on conclusion of the trial the learned trial Court was pleased to convict and sentence them, vide the impugned judgment.

6. As in the incident as many as 07 persons lost their lives, 02 got injured and for the same 12 accused are charged, so this Court is to see as to whether the learned trial Court was justified in holding the appellants responsible for the tragic incident and as to whether the prosecution succeeded in bringing home guilt against the appellants. We cannot close our eyes to the fact that both the parties are closely related, but at the same time we cannot ignore that as many as 12 persons are charged, including real cousins and real uncles of the deceased. True that in such relationship substitution is the rarest phenomenon, but equally true that great number of accused are charged for the tragic incident, so this Court is to determine the truthfulness of the witnesses and the involvement of the appellants in the incident. It is the closest relationship of the parties which has put this Court under the obligation to apply extra care, so that miscarriage of justice could be avoided.

7. The points for determination before this Court are that; as to whether the incident occurred in the mode, manner and at the stated time; as to whether the witnesses were present on the spot at the time of incident and in the hospital at the time of report; as to whether the witnesses could satisfy that the incident occurred in the stated manner and that the cause of killing was a dispute over the appointment, of the deceased Bakhtiar, in the Tube well; as to whether the medical evidence supports the case of the prosecution and as to whether the prosecution succeeded in bringing home guilt against the appellants.

8. It is the particular atmosphere of this particular case which urged this Court to explain the relationship between the parties and to confirm that all the accused joined hands for getting appointment against the disputed post. To make the things easy we deem it essential to discuss the inter-se relationship between the parties as only then this Court will find it easy to understand the involvement of the accused and to understand as to which of the accused was having interest in the disputed post. It is evident from the record that the accused Asal Khan, Sardar Ali Khan, Fazal Khaliq and the deceased Misal Khan are brother inter-se whereas the remaining accused are their sons. As admittedly good number of accused of one and the same family is charged, so this Court considers it its obligation to ascertain the interest of every individual in that particular post. The record further tells that out of the brother the deceased Misal Khan was the youngest and during the day of incident he was having sixty (60) years of age. When such is the state of affairs, then we cannot overlook the ages of his other brothers, who were admittedly more in age than the deceased, so we are anxious to know that what prompted his elder brothers to join hands with their sons and to eliminate his entire family. As the sole cause of killing was the post of tube well operator, which in fact was held by the deceased Misal Khan and thereafter his deceased son Bakhtiar, so it is for the prosecution to convince that which of the accused had an interest to be appointed against the post, despite the fact that the said post was held by the deceased Bakhtiar, much earlier to the incident.

9. We are to see as to whether the incident occurred inside the house and as to whether the site plan supports the stance of the complainant, so for this particular purpose we are to go through the statements of the witnesses and through the site plan prepared on the pointation of the eye-witnesses. It is the case of the prosecution that they were fired at, inside the house from the main gate of the house and that the accused Sardar Ali commanded his co-accused to fire and kill. It is pertinent to mention that the site plan does not support the report of the complainant, as out of the deceased, the deceased Tahir, Misal and Mst. Sajeela, received firearm injuries inside the house and except the deceased Misal Khan, both the deceased died in the house, whereas the deceased Misal is shown to have travelled from Point 3 to Point 3-A. Similarly, rest of the deceased either died in the vacant plot situated in front of the house or in the compound of the Tube Well. When the statements of the witnesses are juxtaposed with the site plan, no ambiguity is left that the same does not support the report of the complainant and the statements of the witnesses, rather we noticed glaring contradiction. The evidentiary value of the site plan cannot be ignored, as the same was prepared on the pointation of the eye-witnesses and subsequently verified by the witnesses. As the witnesses remained consistent regarding the place of incident, which to them is inside the house, then this is for the complainant to tell that at what time and in what manner the deceased Mst. Omeyat, the deceased Zabit, the deceased Zahid Ali and the deceased Baktiar, came out of the house. Not only some of the deceased, but one of the injured eye-witness, is also shown outside the house at the time of firing. When the main gate of the house was fully occupied by the accused including the appellants, then why an opportunity was provided to some of the deceased to leave the house. If we take it otherwise, then all the deceased and the injured eye-witnesses were supposed to be present in the house, before the incident, at the time of incident and after the incident. If the accused had an interest in the post and when the same was occupied by the deceased Bakhtiar, then instead of eliminating the entire family the prime target would have been the person occupying the post and he was no other than the deceased Bakhtiar. We are surprised to see that the deceased, who lost their lives outside the house, were never fired in the house and even they did not receive an injury inside the house. When admittedly, the house where the incident occurred is measuring 05 Marla, so there was hardly an occasion for the deceased to run out of the house, that too, when the accused had come with the only purpose to eliminate and when the accused were occupying the main gate of the house. If the deceased had received injuries inside the house, then the complainant and the eye-witnesses would have shown their respective places inside the house and thereafter outside the house, where the deceased done to death. It is interesting to note that the deceased Misal Khan was shown at Point No.3 at the time of firing and at Point No.3-A to which he travelled and fell down, but the investigating officer could not notice trail of blood between the places and even the complainant could not convince that how the deceased Misal Khan, succeeded in reaching to Point 3-A. It has never been mentioned by the witnesses that some of the deceased were fired at outside the house and some in the Tube Well. It is pertinent to mention that the accused while reaching to main gate of the house, were to pass through the vacant plot, but interestingly, they did not fire at the deceased, who were shown dead in the vacant plot. We are eager to know that when the desired target was available in the Tube Well, then what for rest of the deceased, either outside or inside the house were fired at. The complainant created an atmosphere of uncertainty and we despite efforts could not clarify the same. In the like circumstances we are benefited from the observations rendered in case titled "Muhammad Din and others Vs The State" (2001 YLR 1467), which reads as follows:- "There is no mark of dragging from the place where according to the prosecution the deceased was murdered and then dead body was taken by the appellants to their house. No trail of blood is present between these two places."

10. We are conscious of the fact that the parties are closely related, but we are also conscious of the fact that great number of accused are charged, so if on one hand substitution is a rare phenomenon, then at the same time the number of accused cannot be excluded from consideration. As from the respective families the head of the family i.e. the fathers and their sons are charged and to our understanding no male member was excluded from the charge, so when such is the state of affairs, then this Court is constrained to hold that the number of accused has been abnormally exaggerated, coupled with the fact that the witnesses failed to convince that the incident occurred in the stated manner. We cannot overlook the number of causalities, but whether the same by itself would be satisfactory for convicting the appellants to death sentence. Under all circumstances it is the prosecution to prove and it is the prosecution which must convince the purpose which brought as many as 12 accused to the spot, and the benefits which they aimed to achieve. The tragic incident has shocked us to the Core, but the emotions should not be prevailed, to guide us, rather it is the evidence on file which would determine the fate of all concerned. As the complainant and the eye-witness deposed against the circumstances of the case and as the manner in which the incident occurred, speaks otherwise, so this Court is confident in holding that the witnesses tried their level best to convince that the incident occurred at the stated time and in the stated manner, but unfortunately, they failed to convince.

11. The complainant played a gamble by implicating nearly all male members of the respective families, without considering their status, their interest and the benefits, they wanted to derive. The complainant and the eye-witnesses tried consistently to convince that the cause of killing was the post held by the deceased Bakhtiar, but they ignored that the land in question was given to the department some 35 years back and that on the same post initially, the father of deceased Bakhtiar i.e. Misal Khan was performing the duties as tube well operator and his other uncle as watchman (chowkidar), but nothing was brought on record that by then any of the deceased raised objection or the post in question was disputed. It troubles us that what for the eldest of the families joined hands with the youngest, and that what for the male and female members of the house were targeted. Realizing this fact the complainant introduced an agreement deed, that too, at a belated stage regarding the donation of another piece of land for installation of solar system for running the tube well, but admittedly the same was not brought on record at the earliest and even the investigating officer could not receive the same. Even otherwise, the deceased was appointed much earlier to the present incident, so the record is silent as to when, where and at what time the accused consulted one another and that what for the innocent persons were done to death. These are not the circumstances of the incident which disturbed the judicial mind of this Court, rather it is the conduct of the witnesses and it is the exaggerated charge which persuades this Court to hold that the incident did not take place in the mode and in the manner. Once the veracity of the witnesses is questioned and once the credibility of the witnesses is disturbed, then the responsibility of the prosecution increases for collecting impartial witnesses and reliable evidence, but in our understanding, the prosecution failed. The witnesses disclosed that the house of Sardar Ali, was situated at a 40 minutes drive, so it is for the witnesses to tell that, when they joined hands with the remaining accused and through which source they came to the spot. The complainant admitted that nearly all the accused were engaged in different professions and were working in different departments. They further admitted that the accused are well off, when such is the financial status of the appellants and others, then it does not appeal to a prudent mind that as many as 12 accused from different houses will play a havoc with the family of the complainant, that too, for petty matter. Not the causalities, but the number of accused has disturbed the judicial mind of this Court. No doubt, as many as 07 persons were done to death, but at the same time the number of accused has been exaggerated and the prosecution failed to convince that they had a common motive. Reliance is placed on case titled "Munir Ahmad and others Vs The State" (2019 SCMR 2006), which reads as follows:- "Notwithstanding the magnitude of loss of lives, the totality of circumstances, unambiguously suggest that the occurrence did not place in the manner as is alleged in the crime report; argument that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions."

12. The points for determination before this Court are as to whether the incident was the doing of as many as twelve (12) accused and that the number of injuries over the dead bodies of the deceased and the injured witnesses commensurate with the same. As is evident from the record that out of the deceased, the deceased Zahid Ali received one firearm entry wound, Misal Khan two firearm injuries, Zabit three firearm injuries, Mst. Omeyat one firearm injury, Mst. Sajeela one firearm injury and the deceased Bakhtiar three firearm injuries. The total number of injuries is 24, whereas twelve (12) persons are charged for causing the same, so this Court is not persuaded from the report of the complainant and the number of accused has been exaggerated. It is interesting to note that the investigating officer failed to mention that from what places the empties were collected, rather he stated that 27 empties of 7.62 bore were collected from the places of the accused. As is evident from the record that the accused are shown firing from three different places, so the investigating officer should have mentioned the same, but he did not and this slackness on part of the investigating officer has created dents in the prosecution case coupled with the fact that no trail of blood was noted between the places, where the deceased Misal Khan received firearm injuries and where he fell on the ground.

13. The appellants were arrested, and from possession of the appellants Saleem and Arif Kalashnikovs were recovered. The seizing officer registered two FIRs in that respect and the same were taken into possession. Subsequently, the recovered weapons were sent to the Firearms Expert, where out of the recovered empties, 17 got matched with the weapon recovered from possession of the appellant Saleem, whereas no empty matched with the weapon recovered from the possession of the appellant Arif. It is interesting to note that from the spot 27 empties of 7.62 bore and 05 empties of .30 bore along with one empty of 8-MM bore were recovered, but out of the recovered 27 empties of 7.62 bore only 17 matched with the weapon recovered from the appellant Muhammad Saleem. As 05 empties of .30 bore were fired from one weapon and 17 out of 27 were fired from another, so in respect of other 10 empties no matching report was received. If the remaining 10 empties are distributed amongst the remaining accused, then the same tells that every accused fired a single fire shot, which no prudent mind would accept. The laboratory report cannot be taken into consideration, as on one hand the recovered weapon was sent to the laboratory after a delay of more than 14 days and that the same was in unsealed condition. When the safe custody of the recovered weapon is not proved and when the same was received with an unexplained delay, so this piece of evidence has lost its evidentiary value and the same cannot be taken into consideration. As is held in case titled "Bakhth Munir v. The State" (2016 MLD 934), it is held that: "Besides, the crime pistol had been allegedly recovered on the same day of incident i.e. 14.01.2012, but has been sent to the FSL with the crime empties on 21.01.2012 i.e. after a delay of seven days, for which no explanation, much less plausible has been furnished by the prosecution as to where and in whose custody the pistol and empties remained for this period and whether these were in safe hands. Muhammad Akbar Khan S.I (PW.7/Investigating Officer deposed that he has not recorded statement of any concerned person regarding delay in sending the articles to the FSL."

14. The medical evidence is in conflict with the ocular account, as on one hand the number of injuries, keeping in view the use of as many as 12 sophisticated weapons, does not support the case of the prosecution, whereas on the other only 24 injuries were caused to the deceased and the injured witnesses. Had all the accused participated in the incident, then the deceased would have received more injuries than the received one. In our understanding the medical evidence is in conflict with the ocular account and the conflict between the two has created many dents in the prosecution case. True that medical evidence is confirmatory in nature and it alone cannot out way(sic) the proved case of the prosecution, but once the credibility of the witnesses is shattered, then the conflict between the two benefits none, but the accused. As is held in case titled Najaf Ali Shah v. the State (2021 SCMR 736), wherein it is held that:- "The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this Court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."

15. The cause of killing was the disputed post held by the deceased Bakhtiar, but the prosecution failed to convince that what interest the accused had and that why 12 accused from different houses joined hands. Neither the complainant could bring on record the relevant documents, nor the investigating officer collected the same and placed on file. No witness from the department was examined in that respect and no verification was ever made by the investigating officer. An agreement deed was produced at a belated stage, but it is of no help to the prosecution, as admittedly deceased Misal Khan was holding the post of tube well operator for long 35 years and thereafter by his son, the deceased Bakhtiar. It is interesting to note that Fazal Khaliq another brother of the deceased Misal Khan had worked against the post of Chowkidar. If the motive is admitted to be the one alleged by the prosecution, then it by itself belles the stance of the complainant and the involvement of all male members of the families. True that weakness or absence of motive would hardly be a ground for the acquittal of an accused, but equally true that when motive is the only cause of killing, then the prosecution is under the bounden duty to prove the same, but in this particular case the prosecution miserably failed to prove the motive, so its failure has benefited the appellants, as is held in case titled "Sarfaraz and another v. The State" (2023 SCMR 670), which reads as follows:- "It is now well established that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence. Otherwise, the same would go in favour of the accused."

16. The cumulative effect of what has been stated above leads this Court to an irresistible conclusion that the prosecution failed to bring home guilt against the appellants and the learned trial Court fell into error while appreciating the evidence on file. The impugned judgment is suffering from inherent defects and the same calls for interference. The instant criminal appeal is allowed, the impugned judgment dated 25.07.2023 is set aside and the appellants are acquitted of the charge. They shall be released forthwith, if not required to be detained in any other criminal case.

17. As the appeal against conviction succeeded and the appellants stood acquitted of the charge, so Murder Reference No. 18-P/2023 is answered in negative. These are the detailed reasons for our short order of even date. JK/69/P Appeal allowed.