Umar Farooq Vs The State etc

v Judgment Sheet

(Judicial Department)

Cr. A No.2l-B of 2024

Umar Farooq.

Vs.

The State etc.

IUDGMENT

For appellant: Messrs. Muhammad Rashid Khan Dirma Khel, and Muhammad Younas Khaffak, Advocates.

For State: Mr. Abdul Waheed Khan Khattak, Asstt: A.G For Respondent: Mr. Abdullah Shahab, advocate.

Date of hearing: 03.06.2025

!f:f rf * !f *

ABD(IL FAYAZ, .1.- The appellant, Umar Farooq has called in question the judgment dated 25.01.2024, rendered by learned Additional Sessions Judge, Banda Daud Shah, District Karak, in a criminal case vide F.I.R No.114 dated 07.06.2022 trlss 30213241449134 P.P.C, Police Station, Terri, Tehsil Banda Daud Shah, District Karak.

2.On 07.06.2022 at 08:40 hours, the dead bodies of Mst.

Sakeena wife of Muhammad Yousaf aged about 65/66 years and her daughter Mst. Sadaf aged 22l23years residents of Kot Banda were brought to civit hospital Banda Daud Shah, where Zafar Ali Khan, brother of deceased Mst. Sakeena, apprised the police that on 07.06.2022 in the morning, he visited the house of his sister Mst. Sakeena where he along with both the deceased were present in the house. Meanwhile, at about 08:00 hours, accused

v Zeeshan and Farooq sons of Mumtaz duly armed with fire-arm "Aslaha Atesheen" criminally trespassed into the house and launched a murderous assault by firing upon them with intent to kill them, resultantly, his sister Mst. Sakeena and niece Mst Sadaf got hit and died on the spot while complainant escaped unhurt luckily. The incident happened in his presence while dispute over market served as motive for the crime. The above report of complainant was reduced into writing vide murasila followed by the F.I.R.

3.After completion of investigation, challan was submitted for trial. At the trial, prosecution in support of its case examined as many as 11 witnesses. After completion of prosecution evidence in the case, accused was examined undet section 342 Cr.P.C, however, neither he opted to be examined as his own witness nor wished to produce defence evidence. After hearing arguments, the learned trial Court vide impugned judgment dated 25.01.2024,the appellant was held guilty for the commission of the offence, sentenced him as follows:-

i. u/s 302(by34 P.P.C the convict Umar Farooq was found pilty for commttting Qatl-e'amd of Mst. Salreena Bibi deceased and thereby sentenced to imprisonment for life with compensation of Rs.500,000/- payable to the legal heirs of the deceased u/s/.544-A Cr.P'C tn default whereof the convtct shallfurther undergo one (01) year SI. ii. u/s j02(b)/34 P.P.C the convict Umar Farooq was found guiltyfor committing Qatl-e-amd of Mst. Sadaf deceased and thereby sentenced to imprisonment for Iife with compensation of Rs.500,000/- payable to the

v legal heirs of the deceased u/s/.544-A Cr.P.C, in default whereof the convict shall further undergo one (01) year SI.

lu. tls 324 P.P.C the convict Umar Farooq was found guilty for committing infficttve attempt at the live of Zafar Ali Khan complainant and thereby sentenced to /ive (05) years simple imprisonment with payment of fine amounting to Rs.100,000/-, in default whereof the convict shallfurther undergo one (01) year SI. tv. u/s 449 P.P.C the convict Umar Farooq was found gilty for committing house trespass in order to commit the murder of deceased and thereby sentenced to five (05) years rigorous imprisonrnent with payment of fine amounting to Rs.100,000/-, in defaultwhereof the convict shallfurther undergo one (01) year SL

4.The present appellant being aggrieved of conviction and sentence, has filed the instant criminal appeal No.21-B/2024, while aggrieved there from the quantum of sentence in the instant criminal appeal, the complainant Zafar Ali Khan has preferred Cr.R No.08-B/2024 [Zafor Ali Khan v. Muhammad Farooqlfor enhancement of the same. As both the matters have arisen out of one and the same judgment, so we intend to decide the same through this common judgment.

5.We have heard learned counsel for the parties alongwith learned A.A.G for the State at length and perused the record in the light of arguments so addressed.

6.Although the learned trial court applied its judicial mind to the facts and circumstances of the case, yet this Court is to see as to whether the approach of the learned trial court was correct and

in accordance with law; whether the learned Judge appreciated the available record and the statements of the witnesses; whether the impugred judgment is based on the collected material and recorded statements. As in the incident there is sole eye-witress, i.e, the complainant Zafar Ali Khan (PW-10) of the c.Ne and to convict the accused charged on the strength of the statement of solitary witress exta-ordinary care and caution is required. True, t}tat determining factor is not the quantity of witresses, but the quality; hence, this Court is to see as to whether the complainant could establish his presence on the spot at the stated time. In order to avoid miscarriage ofjustice, we deem it necessary to revisit and reappraise the already appreciated evidence.

7.The moot questions for determination before tJris Court f are, as to whetler the complainant was present with the deceased at the stated time; as to whether the complainant could convince the judicial mind of the court regarding the marurer in which the incident occurred; as to whether tlte complainant was deposing against the appellant with malice in mind and as to whether the incident occurred in the mode and manner and at the stated time.

In order to appreciate the material aspect of the case, we deem it essential to go through the statement of the complainant which he recorded before the learned trial court.

8.In this case, the key witness of the occurrence is Zafar Ali Khan (complainant) aged about 62163 years son of Hayat Khan, r/o Shahida Banda, Tehsil Banda Daud Shah, Distict Karak who

v appeared as PW-10 before the trial court. For ready perusal, his statement is reproduced as under:-

'?Deceased Mst. Sakina Bibi wcts my sister while deceased Sadaf was my niece. Accused are my distinct relatives. Father of deceased Mst. Sadaf namely Yousaf was dead during the days of occurrence ond he was the paternal uncle of the nominated accused. On 07.06.2022 I lefi my house at about 07:30 hrs for proceeding to the house of deceased situated at Kot Banda. I might be reached to the house of deceased at about 07:50 hrs. I and my sister luht. Sakina Bibi were sitting in Cot in the courtyard of house that in the meanwhtle at about 08:00 hrs accused Umar Farooq and Ztshan entered into the house of my deceased sister and stood in the gate while we stood up on their arrival. Both the accused started firing upon us, resultantly my sister got hit at a distance of two paces ahead of my while my niece lulst. Sadaf also got htt with a fire shot of accused. Arter the firing, accused decamped from the spot while co-vilalgers attracted to the spot. In the mearuwhile, someone had called 1122 and ambulance of Il22 arrived there and the dead bodies were shified to THQ hospital B.D Shah whtle I followed them on my motorcycle to the hospital. After ten minutes of my aruival, the police arrived to the hospital wherein I reported the matter to police. My report was reduced into writtng and the sarne was read over to me and afier admitting it to be correct I signed the same as a tolcen of its correctness. Today, I have seen my report which is already Ex.PW'S/I which is coruect and correctly bears my signature. After lodging the report, I was directed by the local police to reach to the spot and therearter I went to the spot. Afier sometime the investigation staff came there and I pointed out the seen of occuruence to them. During spot inspection, the investigating fficer recovered 06 empties of 7.62 bore and 03 spent bullets from the wall and also recovered blood stainedfrom the places of deceased. My statement was also recorded by the investigating fficer in this respect. Motive behind the occurrence was disputed over a marlrpt sttuated at B.D. Shah between deceased and the nominated accused because the market was the ownership of the late Yousaf and afier death of Yousaf his shares / rights in the market devolved upon his legal heirs and thus there was dispute on the market between the nominated accused and the legal heirs of Yousaf,, I hwe witnessed the occurrence. I charged the accusedfor the commission of offence.

v )AdnI am educated up to middle class. I am driver by profession. Shahida Banda and Kot Banda are two dffirent villages. It is correct that Mst. SaHna was divorced and she has a single son namely Muhammad Younas. Muhammad Younas came from Dubai to his house at ntght time afier funeral ceremony of the deceased. I have two wives. My /irst wife is l,'Ist. Bibi

I

Sadiqa. It is incorrect to suggest that haue divorced Mst. Bibi Sadiqa. Mst. Bibi Sadiqa is the sister of Yousaf, I have three sons from my first wife l,ht. Bibi Sadiqa namely Sqjad Ullah, Fayaz and liaz out ofwhom Saiiad Ulah is elder while ljaz is the younger. Ijaz and Saiiad Ullah are married while Fayaz is unmarried. I l*tow the caltbers ofweapons i.e. Kalashnikov, Shotgun and pistol. I had mentioned to the local police in my report about the Kalashnilav used by the accused. My report was read over to me and I have also ready it by myself,, I do not know that whether the caliber of weapon i.e. Kalashnitrov is rnentioned in my report or not. I might have gone through my report / murasila for about 20 times. My son Fayaz was having good relationship with the deceased. One of my daughter is rnarried in village Shahgai. I have landed property in village Shahgai. Muhammad Younas s/o deceased trrht Bibi Sakina remained in village for about 0l week afier the death of the deceased and thereafier he went back to Dubai. Muhammad Younas had not charged the accused as I had already lodged the report against the accused and it was not deemed necessary to him to charge the accused. I have not pointed out the cot to the investigating fficer on which I and Mst. Sokina was seated prior to the occurrence. I,Ist. Sakinawas the Aunt of Saad Wah and Muhammad Naeem. The house of Naeem is adjacent to the house of deceased while the house of Saad Ulah is situated at some distance. I had not seen Naeem ond Saad Ullah afier the occurrence on the spot, however, I had seen them in THQ hospital B.D Shah on my arrival to the hospital. I had also seen my son Fryaz in the hospital. Police Station B.D Shah falls on the way while corning from Kot Banda to THQ hospital B.D Shah. I myself had not contacted the ambulance of 1122. The dead bodies of both the deceased were taken into the ambulance by women folk, however, I do not lvtow their names during shifting the dead bodies from the spot to ambulance one Muhammad Naeem relative of the deceased was present and some other male co-villagers were also present at that time, however, I do not tell their names and numbers. I do not lonw as to whether Muhammad Naeem had accompanied the dead bodies in the said ambulance to the hospital or not' Women had

V seated with the dead bodies from the spot to THQ Hospital B.D Shah in the ambulance, however, when I reached to the hospital Muhammad Naeem was also present and might have accompanied the dead bodies to the hospital. Village Kot Banda falls in the criminal jurisdiction of Police Station Terri and there is a civil hospital at Terri, I am not the identifier of the dead bodies. No lady constable was accornpanied with the investigation staff during spot inspection. During spot inspection, no male person w(N present from the public and I accompanied the police and told to womenfolkfor observing Parda and enter to the spot house with police. On spot, the local police had neither recorded my staternent or obtained any signature from me. I cannot say that by the firing of which accused Mst Bibi SaHna and Mst. Sadaf had received Jire shot iniuries. I cannot tell the number of injuries received by each deceased as I had not closely examined their bodies being female. I do not remember as to whether I have mentioned the Cot at the time of my report to the local police or not. None was present with me at the time of report to the local police. The lady doctor was present at the tirne of my arrival to the hospital. Afier my arrival to the hospital, my report was lodged by the local police within half hour or 45 minutes, wttness volunteered that poltce arrived afier sometimes i.e. 15 minutes of my arrival to the hospital. I cannot remember the exact time spent by me in the hospital however I left the hospital to the spot on the direction of police afier making report to the local police. I had made the report to police in medtcal store situated outside the hospital as I was called from the hospital to the shop by police. I informed my family members afier the occurrence from the spot through rny cell phone regarding the occurrence. I had not informed the police of Police Station Banda and Teri regarding the occurrence through my cell phone. The second wife of late Muhammad Yousaf is alive who is ltving in Peshawar having one son however I do not lcrtow thetr names. I had not produced any documentary proof regarding the motive part however three Jtrgas were conducted in the Police Station in respect of the dispute on the market between the parties and police are clware regarding the said dispute. In the said Jirgas accused (Jmar Farooq also participoted. It is incorrect to suggest that I was neither present on the spot at all nor I have seen the occurrence. It is incorrect to suggest that my son namely Fayaz was interested to get marry with deceased Mst. Sadaf while her mother deceased Mst. Sakina was not agreed t.e hurdle, therefore Fayaz committed the rnurder of both the deceased. It is

'v incorrect to suggest that in order to save the skin of my son I have falsely charged the innocent persons in instant case. It is incorrect to suggest that no spent bullet or empty shells were recovered in my presence that's wlry I was not shown as marginal witness of the recovery mefno.

9.Another important witress in the instant case is Dr.

Zainab, Lady Medical Officer at THQ hospital B.D. Shah who was examined as PW-l, who conducted the PM examination on the dead bodies of both the deceased namely, Sadaf and Bibi Sakeena on one and the same day. Her statement for the proper assistance and guidance is hereby reproduced as:- "stated that on 07.06.2022 I conducted autopsy of the deceased Sadafaged about 25 years d/o YousafKhan r/o Kot Banda Tehsil Banda Daud Shah, Karak, brought by relative Muhammad Naeem and identified by relatives. I found the following injuries on the body of deceased:- Symptom observed before death: Instantaneous death.

DESCRIPTION OF INJURY:

Entry Wounds:-

1.One entrywound 0.5x0.5 cm below right mandible.

2.One entry wound 0.5x0.5 cm present on posterior aspect of right arm 6 cm above the elbow ioint.

3.One entry wound 0.5 x 0.5 present with 6-7 cm below right breast.

EXIT WOUNDS:-

1.One exit wound 3x3 cm behind lefi ear.

2.One exit wound lxl cm on anterior aspect of right arm 3 cm above elbow ioint.

3.One exit wound 3xi cm present 2 cm above the lefi iliac bone.

REMARKS:

In my opinion/ire-arm iniury causing internal hemorrhage in slatll and abdomen leading to cardio pulmonary arrest.

Probable time that elapsed between:- Injury and death:- Received dead.

V Today, I hwe seen the post mortern report Ex.PM consisting upon 06 sheets including pictorial which are correct and correctly bears my signature. I then handed over the inquest report, iniury sheet and torn clothes of the deceased to police.

On same date i.e on 07.06.2022 I also conducted autopsy of the deceased Bibi Sakeena aged about 60 years d/o Yousaf Khan resident of Kot Banda, Tehsil Banda Daud Shah, Karak, brought by relatives Muhammad Naeem and identified by relatives. I found the following injuries on the body of deceased:-

DESCNPTION OF INJURY:

Entrywounds:

I. One Entry wound 0.5x0.5 cm present, 5 cm back of lefi ear.

2.One entry wound 0.5x0.5 cm present, 3 cm below the lefi breast.

3.One entry wound 0.5 x 0.5 cm present 4 cm below the lefi iliac bone.

Exit wounds:- t. One exit wound ix3 cm present 5'6 cm above right ear withfrocture of sfull bones.

2.One exit wound 2x3 cmiust below the right buttock 3. One exit wound 2x2 cm below the right rib cage. Cranium and spinal cord : Sfullfractures noted. Remarks:- In my opinion fire-arm tniury leading to internal hemorrhages in shtll and abdomen leading to cardio pulmonary orrest.

Probable ttme that elapsed between: ' Injury & death: - neceived deod.

Death & Post Mortem:- Received dead.

Today, I have seen the Post Mortem report h.PIvI/l consisting upon 06 sheets including pictorial which are correct and correctly bears my signature' I then handed over the inquest report, iniury sheet and torn clothes of the deceosed to police. W. I fi.rst examined deceased Sadaf, The time menttoned in the column of time ontirst page i'e at obout 08:20 a.m, is the time of arrival of the dead bodies; however, I have not mentioned this fact that tt was the time of arrivol of dead bodies. The time mentioned 08:20 a.m is the column of examination of the bodies' Self stated that the body was brought at about 08:20 a.m and I had examined the dead bodies thereafier. I have

endorsed the relevant documents. Self stated that the documents were recetved to my staff and were shown to me. The inquest reports and injury sheets of both the deceased does not bear my signatures. I have in the relevant column of post mortem report that the dead bodies were identfied by relatives however I dtd not mention their names. In the column of body brought by there is no mentioning of police in both the post mortetn reports. The column/pages of Thorox, Abdomen, Cranium and Skull were left blank in both the post mortem reports of the deceased. I have not mentioned the time between injury and death in post mortem of deceased Sadaf, The direction of entry No.2 of deceased Sadaf is caused on the arm as through and through. The details regarding the torn clothes hme not been explained by me tn the post mortem reports. The time mentioned on first page of post mortem report of deceased Sadaf is one hour which is the time between death and post mortem. In post mortem of Mst. Sakina the time between Wury and death; as well as the time between death and post mortem is not mentioned by me and I have only mentioned the words "received dead". It is incorrect to suggest that before registration of the case I had examined both the deceased. It is incorrect to lb suggest that actual time of examination is 08:20 a.m and due to tutoring I am making improvements that it is the dn ttme of arrtval of the deceased.

10.In this case, the alleged incident had taken place on 07.06.2022 at about 08:00 hours and the matter was reported at 08:40 hours. It was in the first report recorded from the mouth of complainant Zafar Ali Khan (PW-10) on 05.10.2023. His statement has been reproduced above. It is evident from the statement of PW-10 that Mst. Sakeena is his sister and Mst.

Sadaf was his niece who were the residents of Kot Banda while complainant who is brother of deceased Mst. Sakeena is resident of another village Shahida Banda. The alleged incident no doubt has taken place inside the house and there are kind of witnesses where their presence is proved because of the incident to have

- lt -

been happened inside the house or, otherwise, if any other witness was injured, as the incident has taken place inside the house, these are called natural witnesses. No doubt, the two deceased were the resident of same house in village Kot Banda, but the complainant who is the brother of Mst. Sakeena and the maternal uncle of Mst. Sadaf deceased is hailing from another village Shahida Banda. In this case, the happening occurred, no doubt in the month of July, in eady hours of the moming, i.e, 08:00 hours. Now the first thing which is to be seen in the instant case and that is to be considered that what were the circumstances that brought the complainant (PW-10) to the house of his deceased sister in the early hours of the moming.

Has there was a special occasion in the house of his sister certainly the answer is a big "No", as nothing has been brought or explained by the complainant (PW-10) to explain the circumstances which prompted him to visit the house of his deceased sister.

11.It is in the F.LR that- jti.. !l-,pu g3'!i .2 gr*.,JS .l Ol+.{. + eS Cx" a- 08:00 L.*,fi '"'"lr ^S J.i uJ+ d4 dg.i3i ".Ll 4jll 4l 1-.r+ 5 a cBlr el".l '\tr,.ijS gUSt- I ^+6- u++ 6L..* pi o.ui+ l os$ j;r 4 S.tJili LIS oslJl l+ ,J^^,,i UiF Ug.o 5++UbtSJf 6s+$+ -X C.f -f .tl .ir.-"0L.".. li s+'q+ -Sea

12.Now, the statement of complainant Zafar Ali Khan recorded before the trial coun as PW-10 is of worth perusal for

the reason that if we believe on the statement in the shape of murasila-cum-F.I.R that the two deceased succumbed to the injuries on the spot then why they were shifted to the civil hospital B.D. Shah instead of shifting for recording the report to the Police Station which, other-wise, reflects and is evident from the statement of PW-10 "Aficr the ftring, accused from the spot while co-villagers allracted to the spot In the meanwhile, someone had called 1122 and ambalance of 1122 arrived there and the dead bodies were shifted a THQ hospital B.D Shah while I followed them on my motorcycle. " Now, the bare reading of the above portion of the statement of Zafar Ali Khan complainant (PW-10) clearly reveals that if he was present and someone had called ll22 and on arrival of the ambulance of ll22 he could have been boarded the same instead of following the dead bodies on his motorbike to the hospital. More so, when the said motorbike was also not produced to the investigation agency.

13.Yet another intriguing aspect which, other-wise, adversely effect the present of Zafar Ali Khan complainant (PW-10) on the ,r'r.r; tlr.."e o-.1$"; .ti{ ga' 5 tt spot at the relevant time, as he stated

rJJ,. u... J Or r$l*x 6.,1;. 4l-t -S ets s+i ".6 Jd aS ^ji6-'" --d )*-r -S $g ' r'' s{+l+ JJI ^i5- ,r+ ,r; o-;'ir1" Now for that matter, the site-plan of the case which is Ex.PW-8/l is worth perusal, wherein tlle complainant has been shown at Point No.l while the Point No.2 is the place of the deceased Mst. Sakeena

while Point No.3 is the place of Mst. Sadaf and behind them towards Eastern side of the wall of the house there are Points-B & C which shows the bullet striking marks which clearly suggests and confirmed the fact that the complainant was absolutely in the firing range of the accused who have been shown at Point No.4 and 5. Had the complainant been present on the spot he would have not been spared unhurt rather he was not left alive by the assailants.

14.Now tuming to another aspect of the case, it has been admitted in his cross-examination by the Zafar Ali Khan complainant (PW-10) that he is educated up to middle class and is driver by profession. He further admitted that he is hailing from Shahida Banda while the two deceased were hailing from Kot Banda. He admitted that Shahida Banda and Kot Banda are two different villages. He further admitted that deceased Mst.

Sakeena was divorced by her husband and she has single son namely, Muhammad Younas who was working in Dubai (UAE) who arrived on the night of the eventful day from abroad. It has also been admitted from the mouth of this witress tlnt" I myself had not contacted the ambulance of 1122. The dead hodies of both the deceased were taken into the ambulance by women folk, however, I do not know their narr,es. " when such is the state of affairs then admittedly 1122 ambulance would have definitely been driven by the male driver and if the complainant being a male member and close relative (rr) of the two

deceased then in such state of affairs firstly he should himself shifted the dead bodies from the spot to the ambulance of ll22 or even he should have been helped by his relative Muhammad Naeem who too has not been examined as PW in this case while shifting the dead bodies by the women folk is not appealable to prudent mind. If at all then it adversely effect the presence of the Zafar Ali Khan complainant @W-10).It is also in the cross- examination of the PW-10 " ll/omen had seated with the deud bodies from the spot to THQ Hospital B.D Shah in the ambulance, however, when I reached to the hospital Muhammad Naeem was also prcsent and might have accompanied the dead bodies to the hospital."

15.From the above perusal of the evidence, it is clear that the complainant (PW-10) himself is not sure that Muhammad Naeem when found in the hospital whether he had accompanied the dead bodies in the ll22 ambulance to the hospital, which confirms the fact that this witress was not present at the alleged time of incident, because firstly that he does not know who accompanied the dead bodies in the ambulance of ll22 to the hospital, women-folk or Muhammad Naeem and secondly that there was a space for boarding the ambulance of ll22 then why did complainant PW-10 preferred to follow the ambulance on his motorbike that too when the same motorbike has not been produced to the investigating officer.

\r 16. Normally, the report are being recorded when the dead body of injured is brought inside the hospital, but in the instant case, the complainant has admitted that " I had made the report to police in medical slore situated oulside the hospital us I was called from the hospital to the shop by police. " It is not known as to what were the circumstances to record the report inside the hospital; instead the complainant was brought out from the hospital to the medical store situated outside the hospital to have recorded his statement/report.

17.Now another aspect regarding non-presence of Zafar Ali Khan complainant (PW- 10) is the statement of one Saad Ullalt Khan (PW-11) s/o Mir Ajab Khan r/o of the same village Kot Banda, where the alleged incident has taken place. This witress was the close relative of deceased Mst; Sakeena, as husband of the that deceased was the real uncle of Saad Ullah Khan, therefore, he had identified the dead bodies of the two deceased, his statement is worth perusal which is hereby reproduced:- " Statement of Saad Ulah Klnn aged about 61/62 years s/o Mir Ajab Klrun, r/o Kot Banda, Tehsil Banda Daud Shah District Karak (CNIC No.90406-9198344-5). Deceosed ltht. Sakeena Bibi was the wife of my uncle Yousafwhile deceased Sadafwas the daughter of Yousaf, I identified the dead bodies of both the deceased before the Police as well as before the doctor at THQ Hospital B.D.Shah. My statement was recorded by the LO in this respect.

D(... Accused and deceased party both are my relatives. Yousaf had divorced lulst. Sakina Bibi however the divorce had not taken place in my presence. I got information regarding the occurrence at Teri at about at about 08:00 hrs by one Muhammad Naeem. Afier getting lonwledge I came to the spot house where I came to know that the dead bodies have been shified, therefore I

V went THQ hospital B.D.Shah and reached there at about 08:30 hrs and had not seen the complainant Zafar Ali. Complainant Zafar Alt was not present in the Hospital when I reached in the hospital. The local police present in the hospital asked that who will lodge the report and would become complainant, I replied that I had not personally seen the occurrence therefore I would not lodge the report. Therea/ter Muhammad Naeem made telephone call to Zafar Ali then Zafar Ali came to the Hospital after two and half hours. When Zdfor Ali was contacted on telephone by Muhammad Naeem at that time Zafar Ali informed him that he is in the fields at village Shagai. Muhammad Naeem might hwe been accompanied the dead bodies to the hospital. When I reached to the hospital police and Zafor Ali were not present however afier one hour police canne to the hospital and afier two and half hours Zafar Ali reached to the Hospital. When Zafa, Ali complainant come to the hospital, he and police went outside the hospital and set in the shop situated opposite to THQ Hospital B.D.Shah and there report was lodged by Zafar Ali Khan to the local police. When I reached to the hospital Fayaz s/o Zafar Ali was present in the hospital.

18.As this PW has also confirmed, being close relative of the two deceased, that complainant was not present at the spot at the relevant time though h" is a formal witress of identification of the dead bodies of the both the deceased before the police and the doctor, but he had spoken the truth and his statement cannot be overlooked at all. He has admitted in his cross-examination thatZafar Ali Khan complainant (PW-l0) was not present in the hospital when he reached the hospital and further went on saying that the local police asked him in the hospitalthatwho will lodge the report to become the complainant. PW-l1 stated to the police that as he had not personally seen the incident, therefore, would not lodge the report, thereafter, another relative Muhammad Naeem made telephone call to the present complainant PW-10

and on his arrival after 2 % (two and a half) hours he recorded the report that too in a shop outside the hospital. Therefore, in view of the above, it is held that the incident has gone un-witress and that Zafar Ni Khan complainant @W-10) was not present at the relevant time rather he was procured later on and he cannot be termed as an eye-witness at all.

19.In the light ofwhat has been stated above, leads this Court to hold that the occwrence was not witnessed by Zafar Ali Khan the PW-10, reliance in this respect is placed on the case 'Msl.

Saddan Bibi v. Muhammad Amir and others' [2005 SCMR 11281, wherein it was held thati

"5. Similaily was the posilion ol Shah Nawaz (P.W.l2). He was the orre with whom the accwed party was allegedly in litigatton about the bnd in question and thus he wos the one against whom lhe rcspondents had the alleged motiva He cldmcd to have been present al the place of occarrence bat the { respondents ,revet o.frernpted to cause ony harm to hint Such an allcged conduct of the respondents does not insp e conJidence and it wos; therefore, rightly held by the High Court that the prcsence of Shah Nawaz P.W. at the phce ol occwrcnce at the relevant time was also open to serious doubts. t'

20, Likewise, in anotler case (Maharnn ad Ali v. The State" [2015 SCMR 137], it was held:-

" 5. According to the prosecution the F.I.R has been rcgistered on 10-30 a.nt on the sane day for the incident which has taken place at 9-15 ottt According to P.lt3 AmiadAli antl P.l{.l Manzoor Ahmed, who allegedly had seen the occanence, the incldent has taken place at an open place whith was not sunounded by the houses. Ad'mittedly both the P.Ws. are no, rusidents ol the locality wherc the oacafienae too* place and they are chance witnesses. The role ascrlbed to Noor Muhammad and Riaz ii in confiadiction with the medical evidence, as the complainanl in his sapplementary statemcnt has mentioned that Noor Muhanmad gave a hatchet blow on the head of the deceased

from the sharp side whereas the said. injury was declared by the doctor as caused by a blunt wealmn. The medical evideace also does not supporl the ocular account qaa the nuntber of lnjwies as according to the Doclor P.lL6 the deceased had ruceived as mmy os I injafies. Injuries Nos. 6 and I were incised wounds, injwies Nos. 1, 2 and 7 were caused by blunt weapon while injuries No* 3, 1 and 5 were caused by ftearms. Only one injury on thlgh has been afrributed to the appellanl The doctor has also found blackening on the injurics which nuans ,hol the injwtes couW have been caused lrom a distance of thrce teet or kss. But accotdirrg to sile plan, the distance between the assailane and the deceased was about 2 *arams which is equal to 11 feel In such c cumstaaces, the presence of the eye- witaesses ot the spot is doub{ul Had they been prcsent at the spot and had witnessed the occurrence, they couW have ascribed the cofiect role to the accused and explain all the injurizs on the penon of the deceased. "

2L. The above view of un-witnessed occrlrrence was also held by the august Supreme Court in another case '( Ali Sher and others v. The State" [2008 SCMR 7071, the relevant portion of the ls reproduced as under:-

"17. The two qte-witnesses not belng independent and natural witnesses olthe occufience; infirmit'us having been found in the prosecution cose and doubls having crept into the prosecutbn version of the occunencel the possihility of occwrcnce having gone un-wltnessed and no independent corroboralion being avallable in support of fie ocular testinuny, tt cannot be said that the proseculion had succeeded in proving the guilt ot the two convicls beyond all reosonable doub&."

22.No doubt, another aspect of the case is that the officer had recovered from the place of "Waradaf' 06 empties of 7 .62 bore from the places of accused irrespective of the fact that there are two deceased and there are multiple Fire-arm injuries on their Person, but as the F.S.L report Ex.PW- 8/16 reflect that all these empties were fired from one and the sane 7.62 caliber weapon, which confirms that the incident is the

F job of a single accused. Reliance in this respect is made on the case Zain-ud-Din v. Noor Muhammad and others {2022 P.Cr.L.J Note 26) [Peshawar @.I.Khan Bench)1, wherein it was held:-

"12. The investigating officer visited the spot and during spot inspection recovered 06 empties of .30 bore along with two spent bullets, a bicycle and blood stained earth from the place of deceased. The empties were sent to the Forensic Science Laboratory to ascertain as to whether these were fired from one or more weapons. The report was received with an opinion that these empttes were fired from one weapon. The laboratory report confirms that it was the doing of one person.

In case titled "The State through A.G Khyber Pakhtunkhwa v. Subhan Ali and another" (2020 MLD 1901), wherein it is held that:

"12. The Investigating Officer recovered three empties of 7.62 bore from the spot, which were sent to the ffice of chemical exarniner with a request to tender its opinion, as to whether these were Jired .from one or dffirent weaponq the report has been exhibited as Ex: PW 10/6, where these empties were shown fred from one and the same weapon. The deceased hos three inlet wounds and three empties were recovered from the spot with opinion from the Forensic Sciences Laboratory as having been fired from one and the sarne weapon belies the stonce of the comploinant regarding the involvement of two accused in commission of the offence."

23.Regarding the medical evidence, the lady doctor (PW-l), has found almost all the entry wounds on both the deceased (mother and daughter) were of the same size and dimension, which other-wise, reflects that it was the job of one weapon and single person. Reliance in this regard is placed on the case of Farman Ali v. The State [PLD 1980 SC 20U, wherein it was held that:-

"In his dying declaration, Rashid Khan has involved the three brothers as well as their friend, Farman Ali'

Y But the medical evidence and the evidence of the Ballistic Expert do seem to cast doubt on his veracity. The evidence of Doctor Muhammad Kamal, who had conducted autopsy on the dead body of Rashid Khan is that the size of inlet of all the wounds suffired by him was the sarne meaning thereby that he had been shot .from one or more than one weapon of the same calibre. It is in the evidence of the Ballistic Expert, however, that the four empties sent to him for examination were found to have been fired through .32 bore pistol which wos also sent to him by the Investigatton Officer. It would therefore follow that Rashid Khan had been shot through a ptstol and certainly not through a ri/le with which Farman Ali is said to have been armed. It is true that according to the prosecution each one of the three appellant brothers was armed with a .32 bore pistol: but the type of injuries suffered by Rashid Khan rather suggest that it was the work of one rnan. It is common lcrtowledge that .32 bore pistol is an automatic weapon carrying in its charger seven bullets. The fact that the deceased was found to have suffered seven inlet wounds, three of them tn his left Knee joint, one on his lefi elbow, two in his abdomen and one in bachtard direction to his rtght superior iliac spine, the inlet size of oll of which is said to be the same, would go a long way to show that this could as well be the work of a single person and not of the three appellants. There is no evidence on the record to show, however, as to which one of the three had caused him the said iniuries, therefore, no option is left but to hold that the prosecution has failed to bring home its case against any one of the appellants."

24.The version of prosecution with regard to the number of accused charged in the instant case also makes doubtful the very presence of the complainarfi at the time of event. Complainant (PW-10) being real brother of deceased Mst. Sakeena and maternal uncle of deceased Mst. Sadaf seems highly interested and inimical towards the accused, hence, his testimony cannot be believed without independent corroboration which is lacking in the case. Not a single inhabitant of the axea h€N come forward to support the prosecution version. Even in the peculiax circumstances of the case, the presence of complainant on the

f.- spot at the time of event is doubtful; as such the complainant (PW-I0) cannot be termed as truthful witress. Apart from above, there are numerous infirmities in the prosecution case coupled with the material contradiction in the statements of the PWs which create serious doubts in the prosecution version and not worth reliance to record conviction.

25.Non-mentioning the kind of weapon of offence in the F.I.R and failure of investigating officer to recover the weapon of offence also caste shadow of doubt with regard to the number of accused. Hence the charge is also seems to have been exaggerated. Reliance in this regard is placed on the judgment of this Court in the case of "Sardar v. The State and another, [201E MLD 973], wherein it was held:-

deceased is ,tot that ol the three persons as has bem alleged in the FIR and deposed by the prosecution's witnesses. It apryaw that the complainant sifu has leveled an *aggeruted charge so as to enrope theruin the appellant lor his being fathet ol the two abscondlrrg accused" which praclice is very much common in the countryt. "

26.In the light of above referred circumstances, we find that the prosecution has not been able to prove its case against the appellant beyond any shadow ofdoubt. The impugnedjudgment is suffering from inherent defect which calls for interference of this Court. Therefore, the instant criminal appeal is allowed and impugned judgment of conviction and sentence da1ed25.01.2024 passed by the learned Additional Sessions Judge, Banda Daud

Shah Distict Karak, is hereby set-aside. Consequently the appellant/convict namely-Umar Farooq is acquitted of the charge leveled against him in the case vide FIR No ll4 dated 07.06.2022 registered UlSs. 302R241449134 PPC, P.S, Terri, District Karak. The appellant being in custody be set at liberty if not required to be detained in any other case.

27.As we have allowed the instant appeal"', therefore, the connected Criminal Revision No.0&B2024 lZafat Ali Khan v. Muhammad Farooq] stands dismissed being infructuous.

Announced uL

*lmralullah PS* -Sd- Judge IN

JUDGE

-Sd- Judge

,tf l/'

JUDGE

ID.B)

,lut'bh Mn fu$ke Muhommad forrq AfiUl & lrdr'bb Mt ttr,tk Abdul Foyaz ') b (cl

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