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Official Citation: 2025 PHC 268
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2025
Decision Date: 2025-07-09
Parties: Tahir Mehmood & 2 others vs The State & another
Ruling Summary: This decision was rendered by the Peshawar High Court on 2025-07-09, officially reported as 2025 PHC 268. In this matter between Tahir Mehmood & 2 others and The State & another, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025PHC268
Court Name: Peshawar High Court Judge(s): Aurangzeb, Syed Mudasser Ameer Title: Tahir Mehmood & 2 others vs The State & another Case No.: Cr.A.No. 362-A/2023 Date of Judgment:2025-07-09 Reported As: 2025 PHC 268 Result: Appeal Dismissed
Judgment
JUDGEMENT AURANGZEB, J.- This common judgment shall decide the instant, connected Criminal Appeal bearing No.368- A/2023, titled "Kamran Afzal versus Muhammad Arif, etc" and connected Criminal Revision bearing No.60- A/2023, titled "Kamran Afzal versus Tahir Mehmood etc", being filed against the same judgment dated 13.12.2023, passed by the learned Additional Sessions Judge-IV, Haripur, whereby the appellants have been convicted in case FIR No.534, dated 07.10.2020, charged under sections 302/324/337-F(ii)/447/148/149 P.P.C, Police Station KTS District Haripur. The operative para of which is reproduced below:- "Since, the offence u/s 302 PPC is proved against the accused Tahir Mehmood while, offence under Section 324 read with section 337-F (ii) PPC is also proved against accused Muhammad Arif and Qamar Zaman beyond reasonable doubt, therefore, they are liable to conviction. Since offence is committed all of sudden due to grave and sudden provocation, hence, as a mitigating circumstance, the accused are deserved to leniency in the matter of sentencing. Hence, in view of the above, the accused namely Tahir Mehmood is convicted & sentenced to life imprisonment U/S 302 (b) PPC as Tazir on one count. The convict Tahir Mehmood shall also pay Rs.5,00,000/- (5 lacs) as compensation to the legal heirs of deceased Muhammad Afzal u/s 544-A Cr.PC. In case of non- recovery of said compensation or in case of default in its payment, the convict shall further undergo six month's Rigorous Imprisonment. Similarly accused Muhammad Arif and Qamar Zaman are convicted and sentenced to ten (10) years rigorous imprisonment each under Section 324 PPC for effectively firing upon injured/complainant Kamran Afzal and injured Qasim Afzal. Accused Muhammad Arif is further convicted and sentenced to three (03) years SI u/s 337-F (ii) PPC for
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causing hurt to injured/complainant Kamran Afzal. Likewise, accused Qamar Zaman is further convicted and sentenced to three (03) years SI u/s 337-F(ii) PPC for causing hurt to injured Qasim Afzal. Both convicts Muhammad Arif and Qamar Zaman shall also pay Rs.100,000/- (One lac) each to each injured as "Daman". In case of nonpayment of "Daman" they further undergo SI for six months. However, all the sentences shall run currently. Benefit of Section 382-B is also extended in favour of the convicts. While accused Naveed Akhter, Muhammad Shahbaz, Muhammad Arshad, Muhammad Tariq, Muhammad Waheed, Saeed Ahmad and Tariq Javed were acquitted." 2. Facts of the case, in brief, as per Murasila Ex.PA based on FIR Ex.PA are that on 07.10.2020 at 13:10 hours, the complainant namely Kamran Afzal (PW-13) in injured condition alongwith injured Qasim Afzal (PW-14/his real brother) and dead bodies of deceased Muhammad Afzal (his Father), deceased Fazal Elahi (his uncle) and deceased Usman (his real brother) reported the matter to Phul Hussain Shah SI (PW-3) at Emergency Ward Trauma Center, Haripur to the effect that on 07.10.2020 at about 12:00 noon, he himself, his father Muhammad Afzal, uncle Fazal Elahi, his brothers Usman and Oasim Afzal had gone to plough their fields situated at Maira Doyan Aabi. It was 12:00 noon, they saw that accused, Tahir Mehmood, Muhammad Arif, Muhammad Hafeez, Qamar, Muhammad Siraj, Muhammad Saeed, Muhammad Waheed, Muhammad Arshad, Mani, master Naveed, Muhammad Shahbaz, Muhammad Tariq and other Tariq duly armed were erecting boundary wall on their fields. His father, his uncle Fazal Elahi and brother Usman asked Tahir Mehmood to get the land demarcated first through Patwari and then erect/construct boundary wall to separate your land. It was about 12:30 noon, altercation started in between them and Tahir Mehmood alongwith others. Accused Tahir Mehmood, Muhammad Hafiz, Muhammad Arif and Qamar who were armed with firearms who with intention to kill them started firing at them. With the firing of Tahir Mehmood, his father Muhammad Afzal, with the firing Muhammad Hafeez, his uncle Fazal Elahi, with the firing Muhammad Siraj, his brother Usman were severely injured, fell on the ground and died on the spot. With the firing of accused Muhammad Arif, he himself sustained injury on left side of his shoulder, while with the firing of accused Qamar, his brother Qasim Afzal (PW-14) sustained injury. The occurrence was witnessed by his brother, Khanzada Khan (PW-15) and Habib-ur-Rehman besides him. The motive behind the occurrence was that they wanted to take over possession of the land forcibly, hence, the ibid case FIR was registered against them. 3. Arguments and record perused. 4. Perusal of the available record reveals that the prosecution's case is that on 07.10.2020 at around 1:10 p.m., the complainant, Kamran Afzal, who was himself injured, along with another injured person, namely Qasim Afzal (his real brother), and in the presence of the dead bodies of Muhammad Afzal (his father), Fazal Elahi (his paternal uncle), and Usman (his real brother), reported the matter to the local police officials present at the Emergency Ward of the Trauma Center, Haripur. The complainant narrated that on the same day at about 12:00 noon, he, along with his father Muhammad Afzal, his uncle Fazal Elahi, and his brothers Usman and Qasim Afzal, had gone to their agricultural land situated at Maira Doyan Abi with the intent to plough the fields. Upon reaching the site, they observed that a group of individuals, later identified as the accused persons, namely, Tahir Mehmood, Muhammad Arif, Muhammad Hafeez, Qamar, Muhammad Siraj, Muhammad Saeed, Master Waheed, Arshad, Tariq, Mani, Naveed, Shahbaz, and another individual also named Tariq, were present on their land and were in the process of constructing a boundary wall, despite not having obtained any prior demarcation of the land. 5. Upon noticing this, the complainant's father, his uncle Fazal Elahi, and his brother Usman confronted accused Tahir Mehmood and requested him to first get the land demarcated through the concerned revenue official, i.e., the Patwari, before proceeding with the construction of any boundary wall to separate their respective portions. This led to a verbal altercation at around 12:30
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p.m. between the complainant's party and the accused persons. During this confrontation, the situation escalated, and accused Tahir Mehmood, Muhammad Hafeez, Muhammad Siraj, Muhammad Arif, and Qamar, who were all armed with firearms, opened direct fire on the complainant party with a clear and premeditated intention to kill them. 6. As a result of the gunfire, Muhammad Afzal (complainant's father) was shot by accused Tahir Mehmood and sustained fatal injuries. Fazal Elahi (complainant's uncle) was hit by the firing of accused Muhammad Hafeez and succumbed to his injuries. Similarly, Usman (complainant's real brother) was fired upon by accused Muhammad Siraj, resulting in his immediate death at the spot. The complainant Kamran Afzal himself sustained a gunshot injury on the left side of his shoulder due to the firing of accused Muhammad Arif, whereas his brother Qasim Afzal was injured due to the firing of accused Qamar. 7. The entire occurrence was not only witnessed by the complainant but was also seen by two other eyewitnesses, namely Khanzada Khan and Habib-ur-Rehman, who were also present at the place of occurrence and sustained injuries during the incident. The motive behind the gruesome attack, as stated in the First Information Report (FIR). was that the accused persons were attempting to unlawfully and forcibly take possession of the complainant party's land and resorted to violence when confronted and stopped from doing so. 8. There is no doubt that ten accused persons were charged with offences allegedly committed in furtherance of their common object. Specifically, accused Tahir Mehmood was charged with the murder of deceased Muhammad Afzal; accused Muhammad Arif was charged with causing firearm injury to the complainant Kamran Afzal; and accused Qamar was charged with causing firearm injury to Qasim Afzal. The remaining accused, namely Naveed Akhter, Muhammad Shahbaz, Muhammad Arshad, Muhammad Tariq, Muhammad Waheed, Saeed Ahmad, and another individual by the name of Tariq Javed, were charged with the offence of being armed and participating in the illegal act of erecting a boundary wall on the land claimed by the complainant party. 9. Under Sections 148 and 149 of the Pakistan Penal Code (PPC), the concept of "common object" must be established through a careful evaluation of various factual aspects of the case. These include the nature of the weapons with which the members of the assembly were armed, their movements, their conduct at the place of occurrence, the acts of violence attributed to them individually or collectively, and the consequences that resulted from their alleged acts. It is a settled principle of law that no person can be convicted under Sections 148 or 149 PPC unless it is proven beyond reasonable doubt that he was a member of an unlawful assembly and that the said assembly used force or committed violence in furtherance of the common object. Mere presence at the scene or casual association with the principal offenders is not, by itself, sufficient to hold each member of such an assembly criminally liable for the acts committed by others, unless there is cogent and reliable evidence demonstrating that each accused intended to commit, or was aware of the likelihood of, the commission of the offence in question. In the present case, while examining the ocular testimony of the complainant, namely Kamran Afzal (PW-13), it becomes evident that he did not allege during his deposition that the accused persons Naveed Akhter, Muhammad Shahbaz, Muhammad Arshad, Muhammad Tariq, Muhammad Waheed, Saeed Ahmad, and Tariq Javed were armed with any weapon or that they actively participated in the violent assault. His statement merely places them at the scene. Moreover, another important eye- witness, Khanzada Khan (PW 15), categorically stated during trial that out of the thirteen accused, only five individuals were armed and had actively participated in the incident, while the remaining accused merely stood at a distance without any active role or participation in the commission of violence.
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10. Therefore, from the evidence brought on record, there is no direct or inferential proof that the aforementioned accused persons either used force, committed any overt act of violence, or were armed with weapons during the occurrence. As such, the application of Sections 148 and 149 PPC against these particular accused is not warranted. It is a cardinal rule of criminal jurisprudence that each accused is liable only for the specific act attributed to him, and in the absence of any collective liability being proven, individual culpability must be ascertained strictly on the basis of evidence. Hence, the doctrine of vicarious liability under Section 149 PPC is inapplicable in the circumstances of the present case with respect to these accused persons. 11. Additionally, the accused were also charged under Section 447 PPC for criminal trespass. However, from the evidence adduced by the prosecution's own witness, namely the revenue official Patwari Halqa (PW 11), it stands established that accused Tahir Mehmood is a co-sharer in the disputed land bearing Khasra No.903/456, as evidenced by mutation No.6239. Furthermore, the certified copy of Farad Jamabandi (Ex.PW11/2) also corroborates the fact that accused Tahir Mehmood is recorded as a co-sharer in the aforementioned property. In law, when a property is jointly owned, every co-sharer is deemed to be in possession of each and every portion of the land until it is partitioned officially through the proper revenue channel. Therefore, no co-sharer can be held liable for trespass in relation to joint property unless it is shown that he entered with criminal intent, i.e., with the intention to commit an offence, or to intimidate, insult, or annoy any other co- sharer who might be in possession. 12. It is also pertinent to note that Section 441 PPC, which defines criminal trespass, requires proof of such specific intent at the time of entry. However, in the present case, there is a complete absence of any direct or circumstantial evidence suggesting that the accused entered the property with the requisite criminal intent. On the contrary, the overall tenor of the prosecution's case reflects that the accused party believed themselves to be entitled to the property and sought to assert their perceived right by taking possession and erecting a boundary wall, albeit without lawful demarcation or partition proceedings. Thus, while the conduct of the accused may raise issues of civil dispute over possession, it does not meet the legal requirements to constitute the offence under Section 447 PPC. 13. In view of the foregoing analysis, the charge under Section 447 PPC is not made out, and similarly, the application of Sections 148 and 149 PPC against those accused who neither carried weapons nor participated in any overt act of violence cannot be sustained on the record, hence, the findings of learned trial court to that extent are in accordance with law and thus same are maintainable. 14. The case of the prosecution primarily rests upon the ocular account furnished by injured eyewitnesses and is further supported by corroborative circumstantial evidence The direct evidence comprises the statements of the injured complainant Kamran Afzal (PW-13), injured witness Qasim Afzal (PW-14), and another independent eyewitness Khanzada Khan (PW15), all of whom provided detailed narrations of the incident and the roles attributed to the respective accused persons. Their depositions are consistent, mutually corroborative, and provide a coherent sequence of events surrounding the occurrence. 15. In addition to the eyewitness account, the prosecution also relied on significant circumstantial and forensic evidence to establish the guilt of the accused. Among the notable recoveries are a 30-bore pistol (Ex.P-24), which was recovered from the possession of accused Qamar Zaman, and another 30-bore pistol (Ex. P-8), which was recovered pursuant to the disclosure and on the pointation of accused Muhammad Arif. Furthermore, several crime scene articles were collected, including spent cartridges (crime empties) and bloodstained earth from the place of occurrence, all of which were duly preserved and sent to the Forensic Science Laboratory (FSL) for examination.
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16. Admittedly, the incident in question occurred in broad daylight, and there is no denial of the fact that both parties were well known to each other, having a history of prior disputes and animosity. The occurrence was immediately reported to the police at the Trauma Center, Haripur, within a reasonable time, approximately 40 minutes after the incident. This prompt reporting lends credibility to the prosecution's version, particularly when considered in light of the circumstances. The distance from the place of occurrence to the hospital is roughly 2 to 3 kilometers, and within that short span of time, the complainant and others managed to shift three dead bodies along with two injured persons to the hospital, and report the matter to the authorities. 17. Such promptness in reporting, especially in a traumatic situation involving multiple deaths and injuries, rules out the possibility of undue deliberation, post-incident consultation, or any manipulative fabrication or false implication. It would be highly improbable, if not impossible, for the complainant and other injured persons, grappling with the sudden loss of close family members including a father, brother, and uncle, while also dealing with their own injuries, to have had the mental capacity, time, or motive to concoct a false story or substitute real culprits with innocent individuals in such a limited and emotionally charged timeframe. 18. Moreover, all the accused persons were nominated with specific attribution of roles in the commission of the offence. Their identities, acts, and the weapons/firearms allegedly used by each have been clearly detailed by the prosecution witnesses. The specificity with which the prosecution has charged each accused reflects consistency in the eyewitness accounts and supports the claim that they were not generalized or speculative allegations, but based on actual observations during the incident. 19. There is no apparent motive or rationale that could suggest any false implication or substitution of the real offenders. It does not appeal to reason or the prudence of a reasonable mind that the complainant would absolve or omit the actual culprits responsible for the brutal murder of his father, uncle, and brother, as well as the injuries to himself and his surviving brother, and instead falsely implicate innocent individuals without any cogent reason or prior enmity. In such cases involving multiple casualties within a family, the natural course of conduct is to ensure justice by naming the true assailants. Therefore, the possibility of substitution of accused persons is effectively ruled out, and the credibility of the prosecution's case stands reinforced by the facts and circumstances surrounding the immediate and consistent reporting of the incident. In this regard reliance is placed on the judgment of august Supreme Court of Pakistan rendered in case titled Liaqat Hussain Versus The State (2024 SCMR 1600), wherein it was held:- "First Information Report of the occurrence was promptly lodged by PVV.10 who is relative of the deceased, injured as well as the convict. Record does not reveal of any motive on the part of PW.10 and PW.12, being eye-witnesses of the occurrence to falsely implicate the convict." 20. The postmortem examination of deceased Muhammad Afzal was conducted by the Medical Officer and is duly documented vide Postmortem Report Ex.PW-5/5. As per the findings of PW-5 (the medical expert), the deceased sustained multiple firearm injuries. The first injury noted was a 1-inch firearm entry wound located on the left iliac fossa, approximately 3 inches below and lateral to the umbilicus. The second injury was a 1/2-inch circular firearm entry wound situated at the midline of the right knee. The third was another 1/2-inch firearm entry wound observed on the left upper side of the chest, just below the left shoulder tip. 21. In addition to these entry wounds, two corresponding exit wounds were also identified during the examination. One was a 1-inch exit wound present on the left side of the back, on the medial aspect of the scapula, corresponding to the chest injury. Another 1-inch exit wound was found approximately 5 inches above the knee, on the medial side of the thigh, corresponding to the injury
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on the right knee. These injuries indicated the passage of bullets through vital parts of the body, causing fatal trauma. 22. Furthermore, during the course of the postmortem, one deformed metallic bullet was recovered from the body of the deceased Muhammad Afzal. The recovered projectile was weighed and found to be approximately 4.7 grams, which was duly preserved and later sent for forensic examination. The Medical Officer opined that the cause of death was due to firearm injuries, which were sufficient to cause death in the ordinary course of nature. The estimated time between death and postmortem examination was assessed to be approximately one hour, with the autopsy being conducted at around 1:30 p.m., thereby fixing the time of death at approximately 12:30 p.m. 23. These medical findings are consistent with the ocular account furnished by the prosecution witnesses and corroborate the claim that the deceased was shot with firearms resulting in instantaneous death. The nature, location, and severity of the injuries support the prosecution's version of a targeted and violent attack with lethal intent. 24. The injured prosecution witness Qasim Afzal (PW-14) sustained a firearm injury measuring approximately 1 inch in diameter, located on his left shoulder near the neck region. Likewise, another injured prosecution witness, Kamran Afzal (PW-13), received a firearm entry wound measuring half an inch on the left upper back. This injury had a corresponding exit wound measuring about 1 inch, located on the upper aspect of the shoulder, around the middle of the clavicular line. The medico-legal certificates (MLCs) of both injured witnesses were duly prepared and placed on record as Ex. PW-5/1, Ex. PW-5/2, Ex.PW-5/3, and Ex. PW-5/4 respectively, by the Medical Officer who conducted their clinical examination. These medical documents have been found to be consistent with the ocular account of the incident as narrated in the First Information Report (FIR) and substantiate the prosecution's version regarding the occurrence. The nature, seat, and dimension of the injuries clearly indicate that both witnesses were indeed present at the crime scene and were targeted with firearm weapons, which lends further credibility to their testimonies and supports the prosecution's stance in this regard. In this regard wisdom is derived from the judgment of Honourable Supreme Court of Pakistan delivered in case titled Imran Mehmood versus The State & another (2023 SCM R 795), wherein it was held that:- "Even otherwise, if the confessional statement of the appellant is excluded from consideration, there is sufficient material available on the record in the shape of unbiased and unimpeachable ocular account supported by medical evidence, motive and recovery to sustain conviction of the appellant." 25. During the course of spot inspection, the Investigating Officer (PW-16) meticulously secured and documented various items of evidentiary value through recovery memos, thereby ensuring the proper preservation of the crime scene. As per the recovery memo Ex.PW-15/1, he collected bloodstained cotton from the place where the deceased, Muhammad Afzal, had fallen, and sealed the same in parcel No.1. Similarly, bloodstained cotton was also taken from the spot where injured Kamran Afzal was found, which was sealed in parcel No.4. Furthermore, bloodstained material from the location where injured Qasim Afzal had collapsed was taken into possession and sealed into parcel No.5. 26. In addition to these biological recoveries, the Investigating Officer also secured crucial ballistic evidence. He recovered two empty cartridge shells of 30 bore caliber, marked as Ex.P-9, from the location associated with accused Tahir Mehmood, which were sealed into parcel No.6. From the place linked to accused Muhammad Arif, three empty 30 bore cartridges, marked as Ex.P-12, were collected and sealed into parcel No.9. Similarly, two 30 bore cartridge empties, marked as Ex.P-13, were recovered from the scene connected to accused Qamar Zaman and sealed in parcel No.10. 27. Moreover, the garments worn by the deceased Muhammad Afzal and the injured individuals at the time of the occurrence, bearing blood and other forensic evidence, were taken into possession
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through recovery memos Ex.PW-4/2 and Ex.PW-15/2. Additionally, a sealed phial containing a spent bullet recovered from the body of deceased Muhammad Afzal during postmortem examination was also taken into custody by the Investigating Officer and sealed as parcel No.11. All the aforementioned parcels were subsequently sent to the Forensic Science Laboratory (FSL) for examination. The FSL reports Ex.PW-16/17 and Ex.PVV-16/23 returned positive results, corroborating the linkage of the recovered blood and bullet with the incident in question, thereby further affirming the location and occurrence of the crime. 28. Furthermore, pursuant to the disclosure made by accused Muhammad Arif during investigation, a 30 bore pistol, allegedly used in the commission of the offence, was recovered as documented through recovery memos Ex.PVV-4/2 and Ex.PW-9/12. The said weapon, along with the recovered empty cartridges from the scene (parcels No.6, 7, 8, 9, 10, and 17), was forwarded to the ballistic expert for comparison and analysis. The ballistic report Ex.PW-16/32 was received in the affirmative, confirming that the weapon recovered was indeed used in the firing incident, thereby lending strong corroboration to the prosecution case. 29. The injured complainant Kamran Afzal (PW-13) unequivocally and categorically implicated the accused persons with specific attribution of roles and precise account of the firearm injuries inflicted upon himself, his injured brother Qasim Afzal, and the three deceased individuals, namely, Muhammad Afzal (his father), Fazal Elahi, and Usman.…
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