Muhammad Emran Vs Muhammad Afan & another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 896-P/2024

Muhammad Emran Vs Muhammad Afan & another

JUDGMENT

Date of hearing: 25.09.2025

Appellant by: Mr. Shabbir Hussain Gigyani, Advocate.

The State by: Mr. Amir Zeb, AAG.

Complainant by: Mr. Hussain Ali, Advocate.

SAHIBZADA ASADULLAH, J.- Through this single judgment, we are intending to decide the instant criminal appeal as well as the connected Criminal Revision No.263-P/2024 titled “Muhammad Afan Vs Muhammad Emran & another”, as both the matters are arising out of one and the same judgment dated 26.10.2024, passed by learned Additional Sessions Judge-III, Hangu delivered in case FIR No. 1169 dated 13.12.2021 under sections 302/324 PPC registered at Police Station City, District

Hangu, whereby the appellant was convicted and sentenced as under:

i. Under section 302 (b) PPC to rigorous imprisonment for life as Tazir and shall also pay a fine of Rs.10,00,000/- (Rupees ten lac) to the legal heirs of deceased Abdul Rehman within the meaning of Section 544-A Cr.P.C to be recovered as arrears of land revenue. In default of payment of fine, he shall further undergo simple imprisonment for six months.

ii. Under section 324 PPC for attempting at the life of the complainant to rigorous imprisonment for three years and to pay a fine of Rs.50,000/- (rupees fifty thousand). In default of payment of fine, he shall further undergo simple imprisonment for four months.

iii. Under section 337-F(ii) PPC to pay compensation of Rs.50.000/- (fifty thousand rupees) as Daman to the injured complainant and he should not be released unless the amount of

compensation /Daman is paid and pending payment, he should be treated undergoing simple imprisonment.

Similarly, the accused is further convicted with imprisonment of two years as Tazir under section 337-F(ii)

PPC.

iv. The sentences shall commence concurrently and benefit of section 382-B Cr.P.C is extended to the appellant.

2.Facts forming the background of the instant case are that on 03.12.2021, complainant Muhammad Afan reported the matter to the effect that he alongwith the deceased Abdul Rehman and accused Muhammad Emran was present inside the Hujra, engaged in conversation. During the course of discussion, the complainant alongwith the deceased admonished the accused neither to associate with drug addicts, nor to bring such persons into the Hujra; that the accused infuriated and took out his pistol and started firing at them as a result of which they received firearm injuries; that

motive behind the occurrence is stated to be restraining the accused from bringing drug addicts into the Hujra hence, the present FIR.

It is pertinent to mention that on 07.12.2021, the injured Abdul Rehman succumbed to his injuries and section 302 PPC was inserted.

3.After completion of investigation and arrest of the accused, complete challan was put in Court. Provisions of Section 265-C Cr.P.C were complied with and the appellant was charge sheeted to which he pleaded not guilty and claimed trial. In order to substantiate its claim, the prosecution produced and examined as many as 14 PWs.

After closure of prosecution evidence, statement of accused was recorded under section 342 CrPC, wherein he posed innocence, however, neither he wished to be examined on oath under section 340(2) Cr.P.C, nor wanted to produce defence evidence. The learned trial Court, after full- fledged trial, convicted and sentenced the appellant vide the impugned judgment, hence, instant appeal.

4.Arguments heard and record

scanned with their valuable assistance.

5.After sustaining firearm injuries, the deceased, then in a critically injured condition, alongwith the complainant who had also received firearm injuries, was hurriedly shifted to the hospital where, the complainant reported the matter. The injury sheets were prepared, and the injured were medically examined by the doctor, whereafter their medico-legal certificates were issued. The deceased, despite remaining under treatment for some days, ultimately succumbed to his injuries, so his inquest report was prepared and, his dead body was thereafter sent for post-mortem examination. The Investigating Officer, after receiving copy of FIR, visited the place of occurrence. On the pointation of the complainant, he prepared the site plan.

During spot inspection, one spent bullet was recovered from inside the room, while three empties were collected from the street outside the hujra. It is pertinent to mention that bullet marks were also observed on the smaller gate of the hujra, and an iron piece was secured from the scene. The accused was arrested a few days later; his physical custody was obtained. During investigation, he confessed

his guilt and was produced before the court of competent jurisdiction, where his confessional statement was duly recorded. He was then sent up for trial, and upon its conclusion, was convicted and sentenced.

6.The learned Trial Court, while delivering the impugned judgment, adverted to the essential aspects of the prosecution case and, after application of its judicial mind, held the appellant responsible for the commission of the offence. This Court is to see as to whether the approach of the learned Trial Court was in accordance with law and whether the evidence on record was appreciated in its true perspective. It is a settled principle that the prosecution, regardless of whether one or several persons stand charged, carries the burden to prove its case beyond reasonable doubt. True that single accused is charged, but the charge against a single accused under no circumstances would absolve the prosecution of its liability to prove, rather the prosecution is under the obligation to collect independent evidence in support of its claim. No presumption of guilt arises merely from the

accusation; conviction can only rest upon unimpeachable proof. In order to appreciate the manner in which the unfortunate incident occurred and to assess the legality of the conclusions drawn by the learned Trial Court, it becomes imperative to scan through the record with care and to evaluate the reasons which prevailed upon the learned trial court in holding the appellant guilty of the offence charged.

7.The points requiring

determination before this Court are: whether the incident occurred in the mode, manner and at the time alleged by the prosecution;

whether the complainant was present at the place of occurrence and at the hospital at the time of reporting; whether the medical evidence lends support to the prosecution case and whether the prosecution has succeeded in bringing home the guilt against the appellant.

8.In order to appreciate the

surrounding circumstances, it becomes essential to examine the evidence of the witnesses, in particular the complainant, who himself received injuries in the same episode.

The deceased, having succumbed to his injuries after a few days of treatment, could not render any statement, and thus his version is not available on record. The prosecution case, therefore, hinges upon two pieces of evidence, the confessional statement of the appellant and the solitary testimony of the injured complainant. This court is to see as to whether the complainant has successfully explained the circumstances of the incident, and whether his statement is of such character as to inspire confidence.

The complainant appeared as PW–11 and narrated the manner in which the incident occurred. He explained how the deceased received firearm injuries, how he himself was injured, and how the matter was reported to the police authorities. He was cross-examined at length on the material aspects of the case, and the defence made every effort to extract something favourable to the appellant. It is now for this Court to examine whether the defence succeeded in creating material dents in the prosecution case. In his report, the complainant stated that the incident took place inside the room of the hujra, where he

and the deceased were present. According to him, while they were seated, the accused entered, some exchange of words ensued regarding the deceased’s objection to bringing addict persons into the hujra, whereupon the accused lost his temper and opened fire, hitting the deceased and injuring the complainant. However, in his testimony before the Court, the complainant somewhat departed from his earlier version. He deposed that after firing inside, the appellant stepped outside the hujra, and when the deceased and he followed him, the appellant fired at the smaller gate of the hujra. The fire penetrated through the gate, striking the deceased and also causing injury to the complainant. During cross-examination, he confirmed that the incident took place in the courtyard of the hujra, at the time when the accused had already moved out. He further clarified that while the deceased received a firearm injury from the shot fired by the accused, his own injury was the result of a splinter caused by the same shot. It is not denied that the parties are closely related, being cousins. It is equally not denied that the deceased sustained a fatal

firearm injury in the hujra, and the complainant too was injured in the same transaction. What requires careful consideration, is the manner in which the occurrence took place, the circumstances which prompted the accused to fire, and whether the complainant has stated the whole truth or has implicated the accused falsely.

The Investigating Officer, appearing as PW– 13, explained how the investigation was entrusted to him, how he visited the spot, and how the site plan was prepared on the pointation of the complainant. He confirmed that bullet marks were present on the outer door of the hujra. He further deposed that one empty of .30 bore was recovered from inside the room, while three empties of the same bore were secured from the street outside, in front of the smaller gate of the hujra. These recoveries, when read alongside the complainant’s cross-examination, lend support to the defence stance that the firing took place from outside the hujra. Thus, when the complainant’s initial report, his testimony, his cross-examination, and the site inspection are examined together, no ambiguity remains

that the complainant, at least to some extent, corroborated the appellant’s stance. He conceded that the appellant, after leaving the hujra, fired from outside at the gate, as a result of which the deceased received the fatal injury while the complainant sustained a splinter wound. In these circumstances, this Court is required to consider not only how the incident occurred, but also what led to it, and in what manner the firing was carried out. It is in this background that the evidentiary worth of the complainant’s statement and the confessional statement of the appellant must be assessed, in light of the overall prosecution evidence.

9.Learned counsel for the appellant submitted that the complainant is closely related to the deceased, and therefore his testimony should not be relied upon.

According to counsel, the complainant has falsely implicated the accused due to this relationship. The contention is that such testimony, being tainted with interestedness, cannot safely form the basis of conviction.

True that the complainant is closely related to the deceased, but equally true that the

deceased was also closely related to the complainant as well as to the appellant. The close relationship between the parties, instead of providing a motive for false implication, in fact excludes such a possibility.

What remains to be assessed by this Court is not the bare relationship, but the circumstances in which the incident occurred, what prompted the accused to fire upon the deceased, and how the occurrence actually unfolded. According to the complainant’s report, he and the deceased were sitting inside the hujra when the accused entered.

After a brief conversation, the deceased forbade the accused from bringing persons of ill repute into the hujra. At this, the accused became infuriated and resorted to firing.

However, during investigation, the investigating officer recovered one empty from inside the room, while the complainant himself admitted that the deceased did not receive any firearm injury inside the room.

The surrounding circumstances, therefore, suggest that some altercation took place between the three, which resulted in the accused stepping outside the hujra. The

deceased and the complainant followed him, and at that stage the accused, perhaps in haste, closed the smaller gate from outside and fired at them. The presence of bullet marks on the smaller gate corroborates this account. It was the firing through the closed gate which struck the deceased with a firearm injury. The complainant too received an injury, not directly from the bullet, but from a splinter that reflected off the iron gate. Thus, the complainant’s own statement and the physical evidence converge on this version. These circumstances leave no doubt that the complainant suppressed certain material facts and that the incident did not occur in the exact manner initially reported. This Court is therefore faced with the question: if the complainant’s testimony in its entirety cannot be relied upon, should the confessional statement of the appellant be taken into consideration? When the complainant’s testimony is placed side by side with the appellant’s judicial confession, it becomes evident that the two are broadly consistent.

The complainant, in cross-examination, admitted the facts which align with the

confession made by the appellant. In this way, the confessional statement derives strength and corroboration from the complainant’s evidence. We are, therefore, not inclined to disbelieve the presence of the complainant at the scene, but we also recognize that he withheld essential details. Ordinarily, concealment of material facts by a witness may cast serious doubt on the prosecution case, sometimes even resulting in acquittal.

But this case carries a distinguishing feature:

the appellant himself has confessed to the crime. When both pieces of evidence, the statement of the complainant and the confession of the appellant, are read together, no ambiguity remains as to how the incident occurred. It took place at the stated time and at the stated place, though not in the precise manner originally reported. This Court, therefore, finds unanimity between the complainant’s cross-examination and the appellant’s confession, which supports the prosecution version to the extent of establishing the occurrence and the role of the appellant. Such concurrence, however, cannot be stretched to absolve the appellant

of liability. Instead, it provides a reliable basis for understanding the manner of occurrence.

Thus, while the suppressed facts may narrow the prosecution case, the corroborated confession ensures that the appellant cannot claim acquittal on this ground.

10.We are now to examine the

manner in which the confession of the appellant was recorded and to determine whether it was voluntary and true. The record reflects that soon after his arrest, the accused was produced before the court of competent jurisdiction. His physical custody was sought and granted, and during the course of investigation, he opted to confess his guilt.

Consequently, he was produced before the learned Judicial Magistrate for the purpose of recording his statement. The learned Judicial Magistrate, in compliance with the settled law, afforded the appellant sufficient time to compose himself and to reflect upon the consequences of his act. Only upon being satisfied that the accused was willing to speak voluntarily, the Magistrate proceeded to record his statement. We have carefully examined the questionnaire put to the

accused, as well as the proceedings conducted by the Magistrate, and despite close scrutiny, we could not find any illegality or irregularity in the process. Rather, it appears that all legal requirements and safeguards laid down by the superior court was duly observed, and the confession was recorded strictly in accordance with law. The confessional statement, when read in its entirety, sets forth in detail the circumstances leading to the unfortunate occurrence. The appellant explained how he entered the hujra, how an altercation with the deceased ensued, how he was restrained by his relatives but later freed himself, how he came out, fired at the gate as a result, one person sustained a firearm injury that ultimately proved fatal. The statement therefore leaves no ambiguity regarding the manner in which the tragic event unfolded, as well as the role of the appellant therein. It is also significant that during cross-examination, the complainant himself admitted that the appellant had fired at the gate of the Hujra, and thereafter the deceased received a firearm injury. This account stands in harmony with the

appellant’s confession. Taken together, both versions lend credence to the conclusion that the confessional statement is not only voluntary but also truthful, and that it reflects the real sequence of events. In light of the judgment of Hon’ble Supreme Court in case titled “Shaukat Ali v. The State & others” (PLD 2019 SC 577), it is settled that a retracted confessional statement may still be made the basis for conviction, provided it is found to be voluntary, truthful, and free from any element of coercion or inducement. The Court emphasized that where the Magistrate has duly cautioned the accused and recorded the confession with due care, and the statement appears consistent, natural, and untainted, it can be safely relied upon without undermining the principles of fair trial and safe administration of justice.

11.This case is unique in its

complexion, on one hand, the complainant has concealed the material facts from the investigating agency as well as from the courts of law, whereas on the other hand, the accused, right from the very inception, consistently took the plea of self-defense. As

already discussed, this Court is not inclined to rely upon the entirety of the complainant’s statement, as he could not satisfactorily explain the first episode; however, in respect of the second episode, somewhat both the complainant and the accused appear to be on the same page. This Court is thus left in a state of deep astonishment. The concealment of material facts, in the considered view of this Court, entitles the accused to the benefit thereof. The question then arises whether his confessional statement, standing alone, ought to be made the sole basis for conviction, so these are the most essential aspects of the case. Having reached to the conclusion that the complainant suppressed the true facts and failed to disclose the entire incident, it follows that the benefit of such concealment must extend to the accused. Had the appellant not voluntarily confessed, the concealment of facts by the complainant could, of itself, have been sufficient to justify acquittal. Be that as it may, the accused from the beginning till the end, has adhered to a specific plea, consistently explaining how he was overpowered, how he managed to

escape from the room, how he reached outside the door, and how firing was resorted to at the closed door, which unfortunately resulted in the death of the deceased. When the concealment by the complainant is read in juxtaposition with the confessional statement of the accused, this Court is convinced that it was indeed the appellant who caused the death of the deceased, but not in the circumstances narrated by the complainant;

rather, in the manner disclosed by the appellant himself. The pivotal legal query which now engages the attention of this Court is whether, in taking such a specific plea, the burden of proof shifts upon the accused.

There is no cavil with the proposition that the prosecution, in all circumstances, is duty bound to prove its case beyond shadow of doubt, and that a specific plea cannot, by itself, absolve it of this burden. Yet, in the present case, where the complainant stands as the sole eyewitness, his testimony regarding the initial episode stands wholly discredited. Only in relation to the subsequent episode i.e. the firing at the gate and ensuing events there is some corroboration between

the versions of the complainant and the accused. Thus, the suppression of facts by the complainant has created profound dents in the prosecution case. The task before this Court is to ascertain whether the occurrence stemmed from sudden provocation, or whether it was an act born out of the apprehension of losing one’s life, which compelled the accused to fire. The circumstances, as narrated by the appellant, suggest that he was indeed overpowered, that he struggled to rescue himself, that he was chased, and that upon reaching outside the hujra, he fired. It may be that the doctrine of sudden provocation is not strictly attracted, yet this Court cannot turn a blind eye to the factual matrix. The recovery of an empty from the room lends weight to the probability that the deceased first fired at the appellant inside.

In fear, the appellant managed to escape; in fear of being pursued, he fired at the closed door without foreseeing the tragic consequence of his act, which led to the death of the deceased. When considered in this holistic perspective, no ambiguity is left that the learned trial court misdirected itself in

law. True, that the appellant had the right of private defense, though he exceeded the same. Yet, the surrounding circumstances demonstrate beyond cavil that his sole intention was to rescue himself. Moreover, the firing being made at the closed door of the hujra further tilts in his favour, for it cannot be inferred with certainty that he intended to kill.

It is equally plausible that he fired merely to deter the deceased from chasing him. The learned Trial Court ought to have taken into account these essential aspects of the case, yet it failed to do so. This Court, therefore, finds itself constrained to interfere, for though the sentence awarded cannot be termed as illegal, it nevertheless suffers from legal infirmity and cannot be sustained in its present form. The Hon’ble Supreme Court in a case titled “Muhammad Ashraf v. The State” (2006 SCMR 1815), held that the incident occurred near the appellant’s residence and stemmed from an altercation that later turned into a fight. The Court observed that the exercise of the right of private defence depends on subjective factors such as human conduct, perception of

danger, and reaction under fear aspects that cannot be assessed with mathematical precision, as they differ from person to person and depend upon the circumstances of each case. In the said case, although the deceased had fired at the appellant, the injuries sustained by the deceased indicated that the appellant could have avoided taking his life or neutralized the threat without using fatal force.

The Hon’ble Supreme Court, therefore, upheld the High Court’s finding that the appellant had exceeded the lawful bounds of private defence and the Court partly allowed the appeal to the extent of sentence, reducing it from fourteen years to ten years’ rigorous imprisonment, while maintaining the compensation of Rs. 50,000 and extending the benefit of Section 382-B, Cr.P.C.

13.Resultantly, this appeal is

partially allowed whereby, the conviction of the appellant is converted from section 302(b) PPC to section 302 (c) PPC and his sentence is reduced to 10 years rigorous

imprisonment while the remaining portion of the impugned judgment shall remain intact.

14.Now diverting to Criminal

Revision No.263-P/2024 titled “Muhammad Afan Vs Muhammad Emran & another”, through which the petitioner/complainant has requested for enhancement of the awarded sentence. In order to appreciate this aspect of the case, this Court is under the obligation to take into consideration the available circumstances of the present case and to assess the approach of the learned trial Court in respect of the awarded sentence. As this court while appreciating the evidence on file has come to a conclusion that the incident occurred at spur of the moment, so the awarded sentence under section 302(b) PPC was altered/reduced to one under section 302(c) PPC to ten years rigorous

imprisonment, hence, the instant criminal revision has lost its efficacy and the same is hereby dismissed.

Announced

JUDGE

JUDGE

*Muhammad Fiaz* *D.B* Hon’ble Mr. Justice Sahibzada Asadullah, J Hon’ble Mr. Justice Dr. Khurshid Iqbal, J