Full Judgment Text & Judicial Ruling

2025 Y L R 2521 [Balochistan (Sibi Bench)] Before Iqbal Ahmed Kasi and Muhammad Ayub Khan Tareen, JJ Khuda Bakhsh and 5 others---Appellants Versus The State---Respondent Criminal Appeal No. (s)71 and Criminal Revision Petition No. (s)16 of 2024, decided on 4th June, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A, 337-D, 337-F, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, causing hurt, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of 55 hours in lodging the FIR---Consequential---Accused were charged for making firing upon the complainant party, due to which three persons died whereas there sustained firearm injuries---Record reflected that in the instant case, the incident wherein the paternal cousin of the complainant was injured along with two others and three persons were done to death took place on 08.01.2022 at 01:15 p.m.---However, the matter was reported to the Police by the complainant on 10.01.2022 at 09:10 p.m., approximately more than 55 hours---Admittedly, the complainant was not an eye-witness to the incident, the detailed were conveyed through injured witness who after regaining consciousness at Combine Military Hospital recounted the event that led to the filing of the FIR---Examination of the prosecution's case indicated that there were allegedly other eye-witnesses present at the scene along with injured witnesses---Said persons were reportedly conscious and present, but neither they nor the complainant took the imitative to lodge a police complaint---Moreover, it appeared that the complainant delayed filing the FIR to seek consultation and deliberation regarding fixing a responsibility on the accused party for the alleged incident, potentially in collaboration with injured witness---As stated by the complainant, injured witness was admitted to Hospital and the complainant, in pain, came from other District "S" to "Q" but did not bother to consult the other alleged eye-witnesses and injured witnesses available at "S" at the doorstep of the complainant---Said fact raised the possibility that the other injured and eye-witnesses were either deemed untrustworthy at that time or lacked sufficient knowledge of the assailants to identify them or they were not the eye-witnesses---Such considerations underscored the inherent complexities for the situation and introduced reasonable doubt regarding the credibility of the complainant's accounts particularly as it appeared influenced by injured witness, which ultimately called into question the reliability of the prosecution's case---Even otherwise, said injured witness was present at "S" initially and Medical Officer examined him and other injured witnesses---Medical Officer had not mentioned that they were unconscious, nor did Medico-Legal Certificates issued to said injured witness and other injured witnesses revealed such a fact---Although the police arrived at the place of occurrence soon-after the incident and were also shifted to the hospital by the Police at that time, none of the witnesses, victim of the alleged incident, requested the police to lodge the FIR---Record further revealed that the prosecution had not produced the documents of treatment of injured witness to be admitted to Hospital---These were substantial documents that could substantiate the claim that he was being admitted to Hospital and the same could also verify whether he was unconscious, and if so, when he came in conscious---Investigating Officer recorded statement of injured witness under S.161, Cr.P.C., on 22.01.2022 instead of 10.01.2022---As such, the delay had not properly been explained by the prosecution in reporting the matter to the police---Such delayed FIR on the part of the complainant showed dishonestly and that it was lodged with deliberation and consultation---Circumstances established that the prosecution had failed to establish its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. Muhammad Wasif Khan v. the State 2011 PCr.LJ 470 and Amir Muhammad Khan v. The State 2023 SCMR 566 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A, 337-D, 337-F, 147, 148 & 149---Police Rules, 1934, R. 24.1---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, causing hurt, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---First Information Report lodged after investigation---Accused were charged for making firing upon the complainant party, due to which three persons died whereas there sustained firearm injuries---Alleged incident took place on 08.01.2022, on the said date without registration of FIR, the Investigating Officer of the case arrived at the site along with many other Police Officials and commenced with the investigation of the case by referring the injured to the Hospital, preparing site map, collecting empties, preparing recovery memos. and sealing the empties in parcel, collecting the bloodstained earth, recording the statements without lodging the FIR, which was lodged on 10.01.2022 two days after the full-fledged investigation---Despite getting knowledge of commission of a cognizable offence, the Investigating Officer or any other Police Officer did not register the FIR of a cognizable offence---There was no justification for delaying the registration of FIR---Even, if the complainant party was reluctant to lodge the FIR, the SHO of the concerned police station could have lodged the FIR, as it was incumbent upon SHO concerned to record the FIR of a cognizable offence under S.154, Cr.P.C., and then to investigate the case---Section 154, Cr.P.C., and Rule 24.1 of the Police Rules, 1934, used the word "shall" making it incumbent upon the Police Officer to register FIR into prescribed register---Said mandatory provisions of law indicated that the police authority had failed to perform its statutory duty under S.154, Cr.P.C., and 24.1 of Police Rules, 1934, therefore, the delay occurring in the registration of FIR had benefited the appellants---Main object of the prompt FIR was to rule out the possibility of deliberation, consultation and inquiry as there was tendency to involve innocent people during the interval---In the instant case, the investigation even before the FIR, which was against the dictum the investigation followed FIR, but in the instant case, the FIR had followed the investigation, which was a material illegality committed by the police authorities---Circumstances established that the prosecution had failed to establish its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. Iftikhar Hussain v. The State 2004 SCMR 1185 and Muhammad Wasif Khan v. The State 2011 PCr.LJ 470 rel. (c) Administration of justice--- ----When law requires a thing to be done in a particular manner, the same must be done accordingly---If the prescribed manner is not followed, it would be presumed that the same has not been done in accordance with law. Noman Mansoor v. State PLD 2024 SC 805 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A, 337-D, 337-F, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, causing hurt, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Withholding material witnesses---Adverse presumption---Accused were charged for making firing upon the complainant party, due to which three persons died whereas there sustained firearm injuries---According to the statements of four eye-witnesses, two other witnesses were also accompanying them at the relevant time and the names of such witnesses also appeared in the challan, but the evidence of said witnesses were withheld by the prosecution without any plausible reasons, therefore, a presumption under Art. 129(g) of Qanun-e-Shahadat, 1984, could fairly be drawn that had the said witnesses been examined in the Court their evidence would have been unfavourable to the prosecution---Circumstances established that the prosecution had failed to establish its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR 1180 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A, 337-D, 337-F, 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, causing hurt, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Inordinate delay in recording the statements of witnesses by the police---Accused were charged for making firing upon the complainant party, due to which three persons died whereas there sustained firearm injuries---Since the complainant was not an eye-witness, the prosecution's case relied heavily on the statements of four witnesses, including two injured witnesses, they were shifted to the Hospital in police van along with Police Officials---According to the statements of said witnesses, they met with police while conscious---However, the statements of said witnesses were recorded with a delay of two days after the alleged occurrence, while one of the witnesses was not injured and present at the same station and had meetings with Investigating Officer, he still did not request for recording of the statement nor did the Investigating Officer record his statement under S.161, Cr.P.C.---Investigating Officer recorded the statement of injured witness on 22.01.2022, 14 days after the alleged incident---Even if it was admitted that he became conscious on 10.01.2022, his statement was still delayed by 12 days, for which the Investigating Officer had not given any reason as to why it was recorded with such a delay---Recording the statement of the witnesses under S.161, Cr.P.C., at belated stage caused serious doubts on the version of the prosecution---Circumstances established that the prosecution had failed to establish its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. Muhammad Khan v. Moula Bakhsh and another 1998 SCMR 570 and Bashir Muhammad Khan v. The State 2022 SCMR 986 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A, 337-D, 337-F, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, causing hurt, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon and crime empties---No forensic report of weapons on record---Accused were charged for making firing upon the complainant party, due to which three persons died whereas three sustained firearm injuries---Prosecution asserted that the accused/ appellants were arrested on the spot and a 303 Rifle and 9mm pistols were seized from their possession---Prosecution also claimed to have retrieved an LSMG along with 85 cartridges from the house of accused---However, it was essential to note that none of those items had been presented to the Court in the current case, nor had they been submitted to the Forensic Science Laboratories to match the empty casings found at the scene---Instead, the prosecution had only provided photocopies of the recovery memos. related to a connected case---Absence of recovery weapons and a positive Forensic Science Laboratory report significantly challenged the credibility of the prosecution's case---Moreover, the observation of the case file indicated that the prosecution submitted empty casings allegedly collected on 08.01.2022---Said casings were allegedly sealed in a parcel along with a sealed memorandum, but the FIR number entry was delayed till lodgment of FIR, which was later on lodged on 10.01.2022---Upon reviewing the case documents, it was clear that the sealed memorandum, claimed to be sealed on 08.01.2021, still displayed the FIR number, suggesting that the documentation and empties had been organized after the registration of FIR rather than derived directly from the scene---Said fact brought to light critical questions about the integrity of the evidence presented---Circumstances established that the prosecution had failed to establish its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A, 337-D, 337-F, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, causing hurt, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account contradicted medical evidence---Scope---Accused were charged for making firing upon the complainant party, due to which three persons died whereas there sustained firearm injuries---Record showed that eye-witnesses, somehow miraculously avoided injury during the alarming event---Moreover, this raised important questions, particularly when it was considered that the prosecution had found a staggering 57 empty cartridge cases from Kalashnikov, along with 130 from submachine guns, 10 from 09mm pistols and other from SMG and 303 Rifle---Given the sheer volume of gunfire, it seemed unlikely that anyone could escape without harm---Moreover, it appeared quite difficult for the prosecution witnesses to accurately identify the specific actions of each assailants amidst such chaos---Accounts of said witnesses further seemed to have contradicted the findings of the Medico-Legal Certificates issued by Medical Officer, which revealed that the deceased and injured had received injuries mostly on their front side---Such discrepancy suggested that the events might not have unfolded as described by the prosecution---Circumstances established that the prosecution had failed to establish its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A, 337-D, 337-F, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah, jaifah, causing hurt, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of four months in sending the crime weapons to laboratory for analysis---Consequential---Accused were charged for making firing upon the complainant party, due to which three persons died whereas there sustained firearm injuries---Prosecution had produced Forensic Science Laboratory Report with regard to 9mm pistol and crime empties, but record revealed that the same had been received by the Forensic Science Laboratory on 25.05.2022 with a delay of more than four months---However, still the crime weapon had not been produced by the prosecution, therefore, Forensic Science Laboratory Report was of no avail to the prosecution---No explanation had been given by the prosecution with regard to delayed Forensic Science Laboratory Report as well as safe custody of the crime weapon which had caused serious doubt in the case of prosecution---Circumstances established that the prosecution had failed to establish its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. (i) Criminal trial--- ----Conviction---Heinousness of the offence---Mere heinousness of the offence if not proved to the hilt is not a ground to punish an accused. (j) Criminal trial--- ----Conviction---Benefit of doubt---Principle---Conviction must be based and founded on unimpeachable, trustworthy and reliable evidence---Any doubt arising in the prosecution case must be resolved in favour of the accused. Khial Muhammad v. The State 2024 SCMR 1490 rel. Malik Mumtaz Hussain Mehfooz, Syed Ayaz Zahoor and Narmeen Rind for Appellants (in Criminal Appeal No. (s)71 of 2024). Muhammad Sadiq Ghumman for the Complainant (in Criminal Appeal No. (s)71 of 2024). Abdul Latif Kakar, Additional Prosecutor General for the State (in Criminal Appeal No. (s)71 of 2024). Muhammad Sadiq Ghumman for Petitioner (in Criminal Revision No. (s)16 of 2024). Malik Mumtaz Hussain Mehfooz, Syed Ayaz Zahoor and Narmeen Rind for Respondents Nos. 1 to 6 (in Criminal Revision No. (s)16 of 2024). Abdul Latif Kakar, Additional Prosecutor General for the State (in Criminal Revision No. (s)71 of 2024). Date of hearing: 27th May, 2025. Judgment Muhammad Ayub Khan Tareen, J.---This common judgment disposes of Criminal Appeal No.(S)71/ 2024 and Criminal Revision Petition No.(S)16/2024. 2. The Criminal Appeal No.(S)71/ 2024 has been filed by the appellants against the judgment dated 05th August 2024 (hereinafter "the impugned judgment") passed by learned Additional Sessions Judge-I, Sibi in Sessions case No.06/2022 (FIR No.06/2022, Police Station City Sibi) whereby the appellants Khuda Bakhsh son of Saifal, Shahzad son of Allah Dina, Muhammad Sharif alias Haji Gul son of Muhammad Yousaf, Qurban Ali son of Ghulam Nabi, Muhammad Aslam and Muhammad Nadeem sons of Muhammad Hashim were convicted and sentenced as under: (i) to suffer life imprisonment in three counts for committing the murder of deceased namely Malik Azizullah, Muhammad Imran and Muhammad Akhter as Tazir due to mitigating circumstances under section 302(b) read with section 149 P.P.C and to pay compensation Rs.500,000/- (Rupees Five Lakhs) to the legal heirs of each deceased in term of section 544-A Cr.P.C; in default of payment of compensation amount, the convicts shall further suffer six months S.I. (ii) All the convicts namely Khuda Bakhsh son of Saifal, Shahzad son of Allah Dina, Muhammad Sharif alias Haji Gul son of Muhammad Yousaf, Qurban Ali son of Ghulam Nabi, Muhammad Aslam and Muhammad Nadeem sons of Muhammad Hashim are sentenced under section 324 read with section 149 P.P.C to suffer R.I for five (05) years each with fine of Rs.20,000/- (Rupees Twenty Thousand Only) each; in default of payment of fine, the convicts to further suffer two (02) months S.I. (iii) All the convicts namely Khuda Bakhsh son of Saifal, Shahzad son of Allah Dina, Muhammad Sharif alias Haji Gul son of Muhammad Yousaf, Qurban Ali son of Ghulam Nabi, Muhammad Aslam and Muhammad Nadeem sons of Muhammad Hashim are convicted and sentenced under section 337-D/149 P.P.C to suffer R.I for five (05) years and to pay Arsh amounting to Rs.22,52,634/- as one third of the Diyat amount Rs.67,57,902/- collectively to pay equal share of Rs.22,52,634/- and the amount of Arsh shall be equally distributed among the injured namely Baro Khan, Muhammad Ashraf and Mureed Khan; in default whereof, the convicts shall further undergo one month S.I. (iv). All the convicts namely Khuda Bakhsh son of Saifal, Shahzad son of Allah Dina, Muhammad Sharif alias Haji Gul son of Muhammad Yousaf, Qurban Ali son of Ghulam Nabi, Muhammad Aslam and Muhammad Nadeem sons of Muhammad Hashim are sentenced under section 337-F(i), P.P.C and to suffer R.I for one (01) year and to pay fine of Rs.15,000/- (Rupees Fifteen Thousand Only) each as Daman to be paid to each injured and in default whereof, the convicts shall undergo for fifteen (15) days S.I. All the sentences awarded to the appellants were ordered to run concurrently with benefit of section 382-B Cr.P.C. 3. The Criminal Revision Petition No.(S) 16/2024 has been filed by the petitioner (injured) against the impugned judgment dated 05th August 2024 passed by learned trial Court in Sessions case No.06/2022 (FIR No.06/2022, Police Station City Sibi), whereby the petitioner has prayed for enhancement of the sentence awarded to the respondent Nos.1 to 6. 4. Facts of the case are that in pursuance of PW-1 Muhammad Saeed's application (Ex: P/1-A), a criminal case vide FIR No.06/2022 dated 10.01.2022 under sections 302, 324, 147, 148, 149 P.P.C was registered with Police Station City Sibi with the averments that he is resident of village Korak, Tehsil and District Sibi and is a government employee; that on 08.01.2022 at approximately 12:30 p.m. his cousin Mohammad Baro Khan along with his companions namely Malik Azizullah son of Malik Dad caste Marghzani, Mohammad Imran son of Dhani Bakhsh caste Saafi, Akhtar son of Elahi Bakhsh caste Marghzani, Mureed Khan son of Wazir Khan caste Marghzani, Ashraf son of Wali Muhammad caste Marghzani, Ishaq Khan son of Haji Mohabbat Khan caste Barozai, Sajjad Ahmed son of Abdullah Caste Saafi, Irfan son of Abdul Latif Caste Marghzani went to offer Fateha Khawani of Imam Dad Kheri's at his residence on Noorpur Road, which is located near the house of accused Mustafa son of Ghulam Nabi caste Ghulam Bolak; that on their return, at approximately 1:15 p.m. as the vehicle passed the house of the accused and went a little further, from behind, a white double-cabin Hilux, in which accused Mustafa, Qurban Ali, Hashim, Mehboob alias Babu alias babul sons of Ghulam Nabi, all by caste Ghulam Bolak were sitting/riding, while the accused Sahib Khan, Aslam, Sabir, Nadeem sons of Hashim by caste Ghulam Bolak and Shehzad son of Allah Din, Khuda Bakhsh son of Saifal caste Channa and two other unknown persons to whom he can identify upon seeing, all armed with firearms arrived on motorcycles; that they stopped the vehicle and surrounded it from all four sides; that Mustafa along with his brothers Qurban, Hashim and Mehboob alias Babu alias Babul, got out of the vehicle, armed with firearms; that Mustafa brandished a Kalashnikov and said that ''You killed my son Chakar, and now how dare you pass in front of his house alive?' and all the accused aimed their weapons on them; as all the persons tried to get out of the vehicle to save their lives, at that moment, the accused Mustafa fired with a Kalashnikov at Azizullah, who was sitting in the front seat and died (martyred) on the spot; the accused Qurban fired with a Kalashnikov at Mohammad Imran who died (martyred) at the spot; the accused Mehboob alias Babu alias Babul fired with a Kalashnikov and martyred Akhtar; the accused Hashim and Sahib Khan fired with Kalashnikovs at Baro Khan who severely injured, while Aslam, Sabir and Nadeem fired at Mureed and Ashraf with LMG/ SMG etc., who were severely injured. However, Ishaq, Irfan and Sajjad miraculously remained safe; upon hearing the gunfire, the police arrived at the scene, the accused abandoned their vehicle and motorcycles and by brandishing their weapons escaped towards their homes; the police arrested accused Khuda Bakhsh and Shehzad with their weapons at the spot; the injured and deceased were shifted to Civil Hospital Sibi by the police in a government vehicle; that on receiving information, he reached the Civil Hospital Sibi and found Baro Khan and the injured unconscious; that later on Baro Khan was shifted to Quetta for medical treatment; that today, after regaining consciousness, Baro Khan narrated the entire incident to him; that the motive behind the incident is old enmity/murder between the parties, hence this case. 5. On completion of the investigation, Challan of the case was submitted; trial commenced, charge was framed and read over to the appellants, to which they did not plead guilty, and claimed trial. 6. To substantiate accusation, the prosecution produced and examined the following witnesses: PW-1 Muhammad Saeed (complainant), who brought on record application for registration of FIR as (Ex.P/1-A) and subsequent application for nomination of accused as (Ex.P/1-B). PW-2 Jamal Shah. He is recovery witness who brought on record recovery memo. of bloodstained clothes of injured and deceased persons as Ex.P/2-A and also produced sealed parcels, sample of seal and bloodstained clothes as Article P/1 to P/18. PW-3 Dr. Lal Muhammad Magsi, Medical Officer DHQ Hospital Sibi. He examined the dead bodies of deceased persons and injured persons and brought on record MLC/death certificate as Ex.P/3-A to Ex.P/3-F. PW-4 Muhammad Ishaq. He is eye-witness of the incident. He produced his affidavit Ex.P/4-A by nominating accused Muhammad Sharif alias Haji Gul. PW-5 Gul Sher Sub-Inspector. He brought on record site inspection memo. (Ex.P/5-A), recovery memo. of three smart/touch mobiles phones (Ex.P/5-B), recovery memo. of one Digital Camera along with two batteries (black-in-colour) (Ex.P/5-C), recovery memo. of empties (Ex.P/5-D), recovery memo. of bloodstained earth (injured and deceased) (Ex.P/5-E), recovery memo. of vehicle (Ex.P/5-F), recovery memo. of double door Hilux vehicle along with six motorcycles as (Ex.P/5-G) and also produced parcels, sample of seal three torch mobiles, digital camera, two batteries, empties of 57 Kalashnikovs, 130 SMG, 10 09mm, 4 LMG, 4 303-bore, four bloodstained sticks, vehicle CS3562, vehicle double, six motorcycles 125, CD-70 and Unique as Article P/19 to Article P/45. PW-6 Muhammad Ibrahim. He brought on record…

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