Full Judgment Text & Judicial Ruling

2025 Y L R 1702 [Peshawar] Before S M Attique Shah and Sahibzada Asadullah, JJ Aurangzeb and another---Appellants Versus The State and another---Respondents Criminal Appeal No. 1531-P and Criminal Revision No. 291-P of 2023, decided on 16th January, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A(iii), 337-F(iii), 337-F(iv), 337-F(v), 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-hashimah, ghayr-jaifah-mutalahimah, ghayr-jaifah-mudihah, ghayr-jaifah-hashimah, rioting armed with deadly weapons, unlawful assembly, possession of illicit weapon---Appreciation of evidence---Case of free fight---Accused were charged for committing murder of two persons of the complainant party and also causing firearm injuries to three persons---Investigating Officer during spot inspection collected an empty, a live cartridge and a misfired cartridge of 222 bore; similarly an empty, a live cartridge and a misfired cartridge of .30 bore; along with an empty of 12 bore, but he could not collect more empties from the spot since, as many as 11 accused were charged---Had all the accused fired, then the Investigating Officer would have collected many empties from the spot and the deceased as well as the injured would have received multiple firearm injuries---Apart from the empties, live and misfired cartridges were collected from the spot, so the same indicated that both the parties entered into a free fight followed by the firing---Parties assaulted each other, but the witnesses remained silent on that particular aspect of the case---When the Investigating Officer put his appearance before the Court, he confirmed that during spot inspection, he noticed the marks of struggle and this confirmation had confirmed free fight between the parties---Circumstances established that the prosecution failed to bring home guilt against the appellants---Appeal against conviction was allowed accordingly. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A(iii), 337-F(iii), 337-F(iv), 337-F(v), 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-hashimah, ghayr-jaifah-mutalahimah, ghayr-jaifah-mudihah, ghayr-jaifah-hashimah, rioting armed with deadly weapons, unlawful assembly, possession of illicit weapon---Appreciation of evidence---Injured not produced for evidence---Accused were charged for committing murder of two persons of the complainant party and also causing firearm injuries to three persons---Prosecution got examined only two witnesses out of the injured, but interestingly the Trial Court convicted and sentenced the appellants for the injuries caused to all the injured whether examined or not examined---Trial Court committed an illegality while convicting the appellants for the injuries caused to the injured who did not appear before the Trial Court and that by doing so, the appellants had not been treated in accordance with law---As the injuries of the injured were attributed to specific accused, so under those circumstances the Trial Court should have dealt with the matter in accordance with the allegations levelled and in accordance with the role played by each accused---Once an injured witness did not appear before the Trial Court in support of his claim, then no conviction could be awarded for the injury caused to him---Circumstances established that the prosecution failed to bring home guilt against the appellants---Appeal against conviction was allowed accordingly. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A(iii), 337-F(iii), 337-F(iv), 337-F(v), 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-hashimah, ghayr-jaifah-mutalahimah, ghayr-jaifah-mudihah, ghayr-jaifah-hashimah, rioting armed with deadly weapons, unlawful assembly, possession of illicit weapon---Appreciation of evidence---Motive not proved---Accused were charged for committing murder of two persons of the complainant party and also causing firearm injuries to three persons---Motive was allegedly an earlier quarrel between the parties, when the crop of the complainant party was damaged---So this Court had to see that what interest all the accused had in the property and in whose ownership the property was---As nothing was brought on record by the witnesses to substantiate their claim of the property, and as the Investigating Officer could not collect revenue record in that respect, so the High Court was inclined to hold that the complainant could not succeed in proving his property on the spot and once it got established that they had no property near or at the place of occurrence, then the participation of all the accused and the visit of the complainant on his property did not appeal to a prudent mind---Circumstances established that the prosecution failed to bring home guilt against the appellants---Appeal against conviction was allowed accordingly. Iftikhar Hussain alias Kharoo v. The State 2024 SCMR 1449 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A(iii), 337-F(iii), 337-F(iv), 337-F(v), 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-hashimah, ghayr-jaifah-mutalahimah, ghayr-jaifah-mudihah, ghayr-jaifah-hashimah, rioting armed with deadly weapons, unlawful assembly, possession of illicit weapon---Appreciation of evidence---Statement of complainant and site plan---Confliction---Accused were charged for committing murder of two persons of the complainant party and also causing firearm injuries to three persons---Site plan was prepared on the pointation of a witness but astonishingly the said witness was not produced, so the evidentiary value of that witness had lost its utility---Admittedly, the complainant in his report charged the accused for indiscriminate firing and no specific role was given---In the site plan every accused was charged for a specific injury caused and every accused was shown duly armed---So when the site plan, that too, verified from the complainant was juxtaposed with the report of the complainant, no ambiguity was left that they were in conflict---Once the complainant verified the prepared site plan, he admitted the same as correct, so the conflict between the site plan and the report questioned the integrity and reliability of such witness---Circumstances established that the prosecution failed to bring home guilt against the appellants---Appeal against conviction was allowed accordingly. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A(iii), 337-F(iii), 337-F(iv), 337-F(v), 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-hashimah, ghayr-jaifah-mutalahimah, ghayr-jaifah-mudihah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly, possession of illicit weapon---Appreciation of evidence---Withholding material witness---Adverse inference---Accused were charged for committing murder of two persons of the complainant party and also causing firearm injuries to three persons---Though, the site plan was prepared on the pointation of one "S", but he was not produced---In order to appreciate as to whether said witness was present when the incident occurred and that he was available on the spot when the Investigating Officer arrived, one of the recovery witnesses appeared and explained that he along with witness "S" and one "A" reached to the spot after the occurrence; and on reaching to the spot, the Investigating Officer was present---Said witness did not support the presence of witness "S" on the spot at the time of occurrence and he even did not confirm that the site plan was prepared on the pointation of that witness---On one hand, witness "S" was abandoned, whereas on the other the witness did not support his presence on the spot, so this particular aspect of the case had damaged the prosecution case beyond repair---Prosecution had the choice to produce the witnesses it liked, but at the same time when the best available witness was withheld, then an inference could be drawn that the witness, if produced, would not support the case---On one hand witness "S" was the most important witness, whereas on the other, as many as 03 injured witnesses were not produced---Circumstances established that the prosecution failed to bring home guilt against the appellants---Appeal against conviction was allowed accordingly. Abdul Qadeer v. The State 2024 SCMR 1146; Malik Aamir Sultan and 2 others v. The State and another 2018 MLD 1635 and Rajmeer Khan and another v. Noor-ul-Haq and others 2019 SCMR 1949 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A(iii), 337-F(iii), 337-F(iv), 337-F(v), 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-hashimah, ghayr-jaifah-mutalahimah, ghayr-jaifah-mudihah, ghayr-jaifah-hashimah, rioting armed with deadly weapons, unlawful assembly, possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Counter version---Real facts of occurrence suppressed---Accused were charged for committing murder of two persons of the complainant party and also causing firearm injuries to three persons---Record showed that one of the accused persons was injured then died---Moot question for determination was that how the deceased received the firearm injury and at whose hands---Counter version in the shape of Daily Diaryhad removed the ambiguity, as it was the deceased then injured who reported the matter and for the injury caused to him, two accused i.e., the deceased and the acquitted accused were charged---Site plan depicted that the deceased accused was present at point No. 11 and from his place, the Investigating Officer also collected blood stained earth---As accused received a firearm injury in the same episode, so he was hurriedly shifted to the hospital where he reported the matter---Said accused/ deceased was present on the spot at the stated time and received a firearm injury in the same transaction---In the site plan, the injury caused to the deceased was attributed to the deceased accused, likewise the injuries to deceased were attributed to the absconding co-accused, so the approach of the Trial Court qua involvement of the appellants was based on misreading of evidence---Report of the deceased/accused had clarified the circumstances and it told that both the parties concealed material facts---Court was confident in holding that the real facts had been suppressed---When the place of occurrence was the same, when people died from both the sides and when the motive was common to the parties, then the counter version could be and should have been taken into consideration---Moreover, it was the uncertainty of events which led to the tragic incident and it was the concealment of facts which overshadowed the prosecution case, so if the accused could earn benefit of the same in Daily Diary, then the same benefit should have been extended to the appellants charged in the instant case---Circumstances established that the prosecution failed to bring home guilt against the appellants---Appeal against conviction was allowed accordingly. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 337-A(iii), 337-F(iii), 337-F(iv), 337-F(v), 148 & 149---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-hashimah, ghayr-jaifah-mutalahimah, ghayr-jaifah-mudihah, ghayr-jaifah-hashimah, rioting armed with deadly weapons, unlawful assembly, possession of illicit weapon---Appreciation of evidence---Medical evidence in conflict with the ocular account---Accused were charged for committing murder of two persons of the complainant party and also causing firearm injuries to three persons---Record showed that the medical evidence was in conflict with the ocular account, as 11 accused were charged in the tragic incident, but the number of injuries did commensurate with the number of accused so the conflict between the two had created dents in the case of the prosecution---Medical evidence was confirmatory in nature, but once the witnesses failed to convince, then the conflict between the two could be considered to the benefit of the accused, and the present case was no exception---Circumstances established that the prosecution failed to bring home guilt against the appellants---Appeal against conviction was allowed accordingly. Khial Muhammad v. The State 2024 SCMR 1490 rel. Muhammad Noman Khan Lodhi for Appellants. Niaz Muhammad, AAG for the State. Muhammad Saeed Khan for the Complainant. Date of hearing: 16th January, 2025. Judgment Sahibzada Asadullah, J.---Through this single judgment, this court is intending to decide the instant appeal as well as connected Cr.R No. 291-P/2023 titled "Bacha Rehman v. Aurangzeb etc." as both the matters are arising out of one and the same judgment dated 31.10.2023 passed by the learned Additional Sessions Judge-V, Swabi delivered in case FIR No. 376 dated 29.04.2021 under sections 302/324/148/149/337-F(iii)/337-F(iv), 337-F(v). 337-A(iii) P.P.C, 15-AA KPK at Police Station Kalu Khan, District Swabi, whereby the appellants Aurangzeb son of Said Qamash and Asim son of Raham Zeb were convicted and sentenced as under: i. Under section 302(b) P.P.C to imprisonment for life each and to pay compensation of Rs.2,00,000/- (two lac) each to be paid to the legal heirs of each deceased within the meaning of section 544-A Cr.P.C and in default of payment, they shall further suffer simple imprisonment for three months. ii. Under sections 148/149 P.P.C to imprisonment for three (03) years each. iii. Under section 324 P.P.C for attempting at the lives of complainant and three other injured, to simple imprisonment for five (05) years each. iv. Under section 337-F(iii) P.P.C for causing injuries to injured Hasnad, to imprisonment for one (01) year S1 each and to pay Daman amounting to Rs.100,000/- each to injured and till payment of the daman, the sentences of the convicts shall be deemed to be simple imprisonment. v. Under section 337-F(iv) for causing injuries to Shah Hussain, to imprisonment for one (01) year SI each and to pay Daman amounting to Rs. 100,000/- each to the injured Shah Hussain and till payment of the daman, the sentences of the convicts shall be deemed to be simple imprisonment. vi. Under section 337-F(v) for causing injuries to Bacha Saeed, to imprisonment for one (01) year SI each and to pay Daman amounting to Rs. 100,000/- each to injured and till payment of daman, the sentences of the convicts shall be deemed to be simple imprisonment. vii. Under section 337-A(iii) P.P.C for causing injuries to Bacha Rehman, to imprisonment for one (01) year Si each and to pay Arsh equal to 10% of Diyat amount. viii. Under section 15AA KPK, convicted the appellant Asim to imprisonment for three (03) years with fine of Rs. 50,000/-. In default of payment of fine, to further undergo one (01) month SI. Benefit of section 382-B Cr.P.C was extended in favor of the appellants. All the sentences so awarded shall run concurrently. 2. Facts forming the background of the instant case are that on 29.042021 injured complainant Bacha Rehman reported the matter to the effect that yesterday at Asr Villa, an altercation took place over the damaging of crops between them and the opposite party; that on the day of occurrence, the accused party Sana-ul-Haq and Suleman sons of Wilayat-ul-Haq, Wilayat-ul-Haq, Amin-ul-Haq and Ihsan-ul-Haq sons of Khan Sahib, ljaz-ul-Haq and Izaz-ul-Haq sons of Amin-ul-Haq, Aurangzeb son of Said Qamash, Adnan and Asim sons of Raham Zeb, Gul Haider son of Jehanzeb, duly armed with deadly weapons, at the fields of Muqeeb-ul-Haq situated at Dandoona Wand Turiandi were present; that he along with his father Shamaoon, brothers Shah Hussain and Bacha Said, nephews Hasnad and Sajjad Ali (deceased) were heading towards the fields and when reached to the place of occurrence, the accused who were already present there with their respective firearms, started firing upon the them as a result of which his father Shamaoon, brothers Shah Hussain and Bacha Saeed, nephew Hasnad got hit and received firearm injuries whereas, his nephew Sajjad Ali died on spot; that motive behind the occurrence was verbal altercation hence, the present FIR. It is pertinent to mention that the injured Shamaoon breathed his last in the hospital. 3. After completion of investigation, complete challan was put in court. Provisions of section 265-C, Cr.P.C. were complied with and the appellants were charge sheeted to which they pleaded not guilty and claimed trial. In order to prove its claim, the prosecution produced and examined as many as 16 witnesses. After closure of prosecution evidence, statements of accused were recorded under section 342, Cr.P.C., wherein the accused posed innocence, however, neither they wished to be examined on Oath as required under section 340 (2) Cr.P.C, nor wanted to produce evidence in defence. The learned trial Court, after full-fledged trial convicted and sentenced the appellants vide the impugned judgment, hence, instant appeal. 4. Arguments of learned counsel for the parties and learned AAG representing the State were heard and record scanned through with their valuable assistance. 5. The shocking incident had a tragic end, as two lost their lives from one side, one from the other, whereas many more got injured. The dead body of the deceased Sajjad along with the injured was shifted to the hospital, where the complainant reported the matter. The injury sheets and inquest reports were prepared, the injured were examined by the doctor, their medico legal certificates were prepared. The dead body of the deceased Sajjad was sent for postmortem examination. The injured after availing the facility of initial treatment, were referred to Mardan Medical Complex, Mardan, but the unfortunate deceased i.e., Shamaoon, could not survive and breathed his last. The dead body was transmitted back to Civil Hospital, Kalu Khan, and the autopsy on his dead body was carried out. The tragedy did not end here, rather another injured namely Amin-ul-Haq, was collected from the spot, shifted to the hospital where he reported the matter which was noted down in the shape of DD No. 30 of the even date. His injury sheet was prepared and thereafter, was examined by the doctor, who prepared his medico-legal certificate. This injured was shifted to the same hospital, at Mardan, to which the remaining injured were shifted, he remained hospitalized for few days, but unfortunately, he lost the battle between life and death, so after his death, his dead body was brought back to the hospital of the area where autopsy on his dead body was conducted. 6. The investigation officer after receiving copy of the FIR, visited the spot and on pointation of the eye-witness prepared the site plan. During spot inspection, certain recoveries were made, the details of the same is found in the impugned judgment. When the complainant got discharged from the hospital, he verified the site plan which had already been prepared on the pointation of a witness namely Saddam. The appellants were arrested, they were committed for trial and on conclusion of the trial, the learned trial Court was pleased to convict and sentence them vide the impugned judgment. We deem it essential to highlight that one of the accused charged in DD No. 30, namely Shamaoon died on the day of incident, so to his extent, the matter could not proceed, whereas his son namely Bacha Said alias Usaid, faced the trial and on conclusion of the trial, he earned acquittal, which too, has been questioned through the connected criminal appeal. 7. The learned trial Court took pain to dig out the truth and to fix the liability. It was after thread bare discussion that the learned Court below found the appellant guilty and as such, he was convicted and sentenced vide the impugned judgment. We are sanguine that the tragic incident claimed the lives of three innocent persons and numerous got injured, but we are also conscious of the fact that not only the complainant party is the worst sufferer, rather the accused party also suffered great damage when one got killed from their side. If on one hand the seat of injuries would tell of the presence of the injured witnesses on the spot, then at the same time, the witnesses are to tell that the incident occurred at the stated time and in the stated manner. We cannot close our eyes to the tragic death of the deceased Amin-ul-Haq as well, as he received an injury in the same transaction, so we are to appreciate that who killed him and that in what manner. As this particular matter requires deep appreciation, so we are inclined to take into consideration the attending circumstances of the present case and the damage caused and received to and by both the parties, as by doing so, we would be able to rescue the innocent and to punish the guilty. 8. As by then, the deceased Amin-ul-Haq was alive, so it was he who reported the matter and that on his death his report got the status of dying declaration. As after receiving initial treatment the deceased was shifted to the same hospital to which the remaining injured were shifted, and remained hospitalized for as many as 06 days, so this Court is to see that whether it was he who reported the matter and that at the time of report he was capable to talk. As in respect of the same incident, two versions are available on record, so we are inclined to take the same into consideration and we are to appreciate that who was the aggressor and that who was aggressed upon. We are further to see that when as many as 11 accused were charged, whether the incident occurred in the manner as was disclosed and that whether all the accused were responsible for the tragic incident. Keeping in view the peculiar circumstances of this case, we deem it essential to look for the individual and collective liability of all concerned, so that the matter could be decided in accordance with law and in light of the evidence collected and statements recorded. 9. The points for determination before this Court are as to whether the incident occurred in the mode, manner and at the stated time; as to whether the complainant received injury in the same transaction and that it was he who reported the matter; as to whether the witnesses remained consistent qua involvement of the appellants and others, regarding their participation in the incident; 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. This Court is to ascertain the evidentiary value of the report penned down in the shape of DD No. 30 and also the fact that how the deceased Amin-ul-Haq received a firearm injury and that who was responsible for the same. 10. We are desirous to appreciate the peculiar circumstances of this case, so for doing the same, we deem it necessary to scan through the statements of the witnesses and to look into the motive which turned to be the cause of the incident. The complainant was examined as PW-11, whereas the eye-witness as PW-12. The complainant disclosed that on the day of incident, he along with others was on his way to the fields; that on reaching to the spot, the accused were present duly armed; they started firing as a result he along with others got injured, whereas the deceased Sajjad died on the spot; that the dead body along with the injured was collected from the spot, shifted to the hospital where he reported the matter. The eye-witness toe the line and as such, the witnesses were put to searching cross-examination. The witnesses highlighted that previous altercation was the cause for the tragic incident and that all the accused fired which resulted into the death of the deceased and in injuries to the remaining witnesses. As the unfortunate incident also claimed the life of one Amin-ul-Haq, so this Court is to see that how he received the firearm injuries and that how was he shifted to the hospital. As both the parties suppressed the injuries caused to each other, so this Court is to see as to whether the concealment of material facts would prove the dishonesty of all concerned and that the same could be taken into consideration for determining the responsibility and culpability of the involved accused. The unfortunate incident occurred in a field situated in front of the house of the deceased Amin-ul-Haq, so this Court is to see as to who was the owner and who was not. The Investigating officer though prepared the site plan on the pointation of one Saddam, yet he could not record the statement of any independent witness in respect of the ownership of the property…

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