Khalid Hussain & others Vs The State etc

Judgment Sheet

IITI

(Judicial Department)

Khalid Hussain & others Vs.

The State etc

Date of hearing: 11.03.2025

For appellants: Mr. Anwar Ul Haq, Advocate For State: Muhammad Asghar Khan Ahmadzai, Addl: A.G For Respondent: lWS. Muhammad Qadeer Khattak & Masood Iqbal Khattak, advocates.

ABDUL FAYAZ, J.- The appellants, Khalid Hussain, Ajab Noor, Shaista Noor & Izat Noor have called in question the common judgment dated 08.11.2023, rendered by leamed Additional Sessions Judge, Banda Daud Shah, District Karak, in a criminal case vide F.I.R No.l25 dated 18.05.2021 u/ss 3021324/1481 149 P.P.C,Polioe Station Teri, District Karak.

2.Brief facts of the case, as per contents of F.I.R are that, on 18.05.2021 at 08:50 hours, the complainant Muhammad Shabeer aged about 26/27 yearc brought the dead bodies ofhis father Muhammad Shafique aged about 55/56 years and brothers Muhammad Ashiq aged about 19/20 years & Muhammad Asim aged about 17118 years to civil hospital, Teri, District Karak, where he lodged the report of the incident to the effect that on the eventfirl day at 08:00 hours, the accused (i) Khalid Hussain

(i)Ajab Noor (iii) Shaista Noor & (iv)[2,il. Noor (5) Mustaqeem & (vi) Tasleem, duly armed were ploughing the disputed fields through tractor driven by accused I(halid Hussain. When he alongwith his deceased father and deceased brothers asked them to stop the disputed fields, as a result of which accused Khalid Hussain, Shaista Noor, Izat Noor & Ajab Noor have launched a murderous assault by firing upon them, resultantly, his deceased father and two brothers got hit and died on the spot though complainant luckily escaped unhurt. Land dispute was disclosed as motive for the crime. The occulrence was witnessed by him as well as other persons present there' Hence, instant report was lodged.

3.The cross version was reported by the injured complainanUaccused Khalid Hussain (one of the accused of case tls302 P.P.C) to Sada Khan S.H.O vide NaqalmadNo'09 of the /, even date in civil hospital Teri to the effect that, on the fateful day at 08:00 hours, he was ploughing his field through tractor, meanwhile, accused Shafique (deceased), Muhammad Ashiq (deceased), Muhammad Asim (deceased), Muhammad Shabeer (complainant of the instant case) and Muhammad Naseer forbidden him from ploughing the fields which resulted into altercation and accused Muhammad Shabeer assaulted by firing upon him through repeater 12 bore as a result whereofhe got hit and injured on his right shoulder. Dispute of properlry was

v described as motive for the crime. The occulrence was also wibressed by his nephew Zakir Hussain.

4.After completion of investigation, challans on the basis of two referred reports were submitted for joint trial except the three deceased persons. At the trial against the six nominated accused facing trial in case No.125 dated 18.05.2021 u/ss 3021324t1481149 P.P.C, prosecution in support of its case examined as many as 09 wifiresses while l0 witresses in the cross case vide Naqalmad No.09 dated 18.05.2021 u/ss 324/42711481149 P.P.C. After completion of prosecution evidence in the referred. cases, accused were examined under section 342 C:.P.C, however, neither they opted to be examined as their own witness nor wished to produce defence evidence.

After hearing arguments, the learned tial Court vide impugned corrmon judgment dated 08.11.2023, the appellants were held guilty for the murder of all the three deceased and ineffective attempt at the life of complainant Muhammad Shabeer, sentenced them as detailed under:-

i,tl/s302(byl4gP.P.CtheconvictKhalidHussainis found gilty for committing Qatl-e-Amd Qnurder) of Muhaimad-ShaJique and thereby sentenced to life imprisonment with .fine of Rs'500'000/- cts compensationtothelegalheirsofthedeceased'in arto"Uwhereofheshallfurtherundergosixmonths

SI

ll. u/s 302(b)/149 P.P.C the convtct Khalid Hussain is gitty for committing Qatl-e'Amd (murder) of found -Muhaimad Asim and thereby sentenced to life imprisonment with line of Rs.500,000/- as cimpensation to the legal heirs of the deceased, in atn"U whereof he shall further undergo six months

,SI

ut. u/s 302(b)/149 P.P.C the convict Khalid Hussain is (murder) of found grritty fo, committing Qotl-e'Arnd

v Muhammad Ashiq and thereby sentenced to lW irnprisonment with .fine of Rs.500,000/' as compensation to the legal heirs of the deceased, in default whereof he shall further undergo six months

,SI

iv. u/s i24/149 P.P.C the convict Khalid Hussain is found gilty of inffictive attempt at the lfe of complainant Muhammad Shabeer and sentenced to I0 years N with fine of Rs.100,000/-, in default whereof he shallfurther undergo 03 months SI. v. u/s 148/149 P.P.C the convict Khalid Hussain is found guilty for the ffince of rioting and sentenced to undergo one year SI.

vi. u/s 302(b)/149 P.P.C the convict Aiab Noor is found gailty for committing Qatl-e-Amd (murder) of Muhammad Shafique and thereby sentenced to life imprisonment with .fint of P6.500'000/- as compensation to the legal heirs of the deceased, in defautt whereof he shall further undergo six months

SI

vii. u/s 302(b)/149 P.P.C the convict Aiab Noor is found Swlty for commttting Qatl'e'Amd (murder) of Muhammad Asim and thereby sentenced to lW imprisonment with .fin of Rs.500,000/- as compensatton to the legal heirs of the deceased, in default whereof he shall further undergo six months

,SI

viii. u/s i02(b)/149 P.P.C the convict Aiab Noor is found guilty for committing Qatl-e-Amd (murder) of Muhammad Ashiq and thereby sentenced to life / imprisonment with .fine of Rs.500,000/- as compensation to the legal heirs of the deceased, in default whereof he shall further undergo six months

,SI

ix. tt/s 324/149 P.P.C the convict Aiab Noor is found gttlty of ineffective attempt at the life of complainant Muhammad Shabeer and sentenced to 10 years N with fine of Rs.100,000/-, in default whereof he shall further -u/s undergo 0i months SI.

x. 148/149 P.P.C the convict Aiab Noor is found gtlty for the offence of rioting and sentenced to undergo one Year SI.

xi. u/s 302(b)/149 P.P'C the convict lzat Noor is found guilty for committing Qatl'e'Amd (murder) of Muhammad Shafique and thereby sentenced to life imprisonment with fine of Rs.500,000/- - as cimpensation to the legal heirs of the deceased, in arnuU whereof he shalt further undergo six months

SI

xii. n/s j02(b)/149 P.P.C the convict lzat Noor is found guilty for committing Qatl-e-Amd (murder) of Muhammad Asim and thereby sentenced to life imprisonment with .fine of Rs'500,000/- - as compensation to the legal heirs of the deceased, in a"n"U whereof he shall further undergo six months ,Sl

xiii. u/s 302(b)/149 P.P.C the convict lzat Noor is found ptlty for committing Qatl-e-Amd (murder) of Muhammad Ashiq and thereby sentenced to life imprisonment with line of Rs.500,000/- as compensation to the legal hetrs of the deceased, in default whereof he shall further undergo six months

SI

xiv. u/s 324/149 P.P.C the convict lzat Noor is found gilty of ineffective attempt at the life of complainant Muhammad Shabeer and sentenced to 10 years N with fine of Rs.100,000/-, in default whereof he shall further undergo 03 months SI' xv. u/s 148/149 P.P.C the convict lzat Noor is found gilty for the offince of rioting and sentenced to undergo one year SL xvi. u/s 302(b)/149 P.P.C the convict Shaista Noor is found guilty for committing Qatl'e-Amd (murder) of Muhammad Shafique and thereby sentenced to life imprisonment with fine of Rs.500,000/' as compensation to the legal heirs of the deceased, in defautt whereof he shall further undergo six months

SI

wii. u/s 302(b)/149 P.P.C the convict Shaista Noor is found guitty for committing Qatl-e-Amd (murder) of Muhammad Asim and thereby sentenced to life imprisonment with .fine of Rs.500'000/- as compensation to the legal heirs of the deceosed, in drfo"k whereof he shall further undergo six montlx

SI

ntiii. u/s 302(b)/149 P.P.C the convict shatsta Noor is found guilty for committing Qatl-e'Amd (murder) of Muhammad Ashiq and thereby sentenced to life imprisonment with fire of Rs.500,000/- as compensation to the legal heirs of the deceased, in defautt whereof he shall further undergo six months

SI

xix. u/s 324/149 P.P.C the convict Shaista Noor is found gitty of ineffective attempt at the life of complainant Muhammad Shabeer and sentenced to 10 years RI wtth fine of Rs.100,000/-, in defoult whereof he shall further -u/s undergo 03 months SI.

)ac. 148/149 P.P.C the convict Shaista Noor is found guitty for the offence of rioting and sentenced to undergo one Year SI.

wi. However, benefits of 382-8 Cr.P'C were extended to all the convicts and all their sentences were ordered to run concurrentlY.

5.The present appellants being aggrieved of conviction and sentence, has filed the instant criminal appeal alongwith connected Cr.A No.429-B 12023 (Khalid Hussain v' The State etc) against acquittal of the two accused Muhammad

Shabeer and Muhammad Naseer in the cross version, whereas, complainant aggrieved there from the quantum of sentence in the instant criminal appeal, has preferred Cr.R No.75-W2023 (Muhammad Shabeer v. Khalid Hussain etc) for enhancement of the same. As these matters have arisen out of one and the same judgment, so we intend to decide the same through this single judgment.

6, We have heard learned counsel for the parties alongwith leamed A.A.G for the State at length and with their valuable assistance, the record was gone through.

7.Though the leamed 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 leamed trial court was correct and in accordance with law; as to whether the learned Judge appreciated the available record and the statements of the witresses and as to whether the impugred judgment is based on the collected material and recorded statements. As in the incident there is the sole eye-witness, i.e, the complainant Muhammad Sahbeer (PW-9) of the case and to convict the accused charged on the strength of the statement of solitary witness much is needed from the courts of law and in such like extra-ordinary care and caution is required' True, that it is not the quantity of witresses, but the quality which is the determining factor and so in the case in hand this Court is to see as to whether the could establish his presence on the spot at the

\ri stated time. In order to avoid miscarriage of justice, we deem it essential to revisit and reappraise the already appreciated evidence.

8.The moot questions for determination before this Court are, as to whether 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 manner in which the incident occurred; as to whether the 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.

g. In this case, the key witness of the occumence is Muhammad Shabeer (complainant) who appeared as PW-9 before the trial court. For ready perusal, his statement is reproduced as under:-

"statement of Muhammad Shabeer aged about i0 year s/o Muhamnad Shafique, r/o Rustam Banda Terri Tehsil Bands Daud Shah, District Karak on oath:- Deceased Muhammad Shafi,que was my father while deceased Muhamrnad Ashiq and Muharnmad Asim were my brothers while accused party are my distance relatives of myfather (Ol.u.i). On 18'05'2021, I along with my father and my brother namely Ashiq and Muhammad Asif went from our house to our field situated at Kamarghara. ll'hen we reached our field in the meonwhile accused facing trial Aiab Noor, Shaista Noor, Izat Noor, Mustaqeem, Tasleem and Khalid Hussatn duly armed came there along with tractor and accused Khalid Hussain was driving the tractor and started ploughtng of our field. On this my fother forbidden the accused party from the ploughing and

v advised to talk with us regarding the issue of field on which the accused party became annoyed and at about 08:00 hours they started call names to us and also the accused party startedfiring upon us with the intention to commit our Qatl-e-amd with their respective anns. Resultantly, my father namely Shafique and my two brothers Ashiq and Asim got hit with the fire shot of accused facing trial and expired on the spot while I tuckily escaped. Afier the occunence accused decarnped from the spot while the private persons attracted the spot. The vehicle was arranged and the dead body of three deceased were shified into it and proceeded to civil hospital Teri. At the time of deboarding the dead bodies from the vehicle one Iqbal and Naseer also arrived in the hospital. Thereafier, the police came to the hospital wheretn I reported the matter to the local police. My report was reduced into writing and the some w(N readover to tne and afier admitting it to be correct than I thumb impressed my report as a token of cotectness. IuIy report was also signed by one lqbal as a rtder. Today, I have seen my report which is correct and correctly bear my thumb impression which rs Ex.PW-9/I. I also identiJied the dead body of all the three deceased before the police ot the time of report at civil hospital Teri. Afier sometime I was talcen to Poltce Station Teri by the police wherein I was arrested and lockcd up. After sometime I was talrcn to spot wherein I pointed out the scene of occurrence and the local police recoyered blood stained earth from the places of all deceased and crime empties were also recovered from the spot. During spot inspection, one Muhammad Aman and Allah Noor were also present who are relatives of the accused party and they are pressurized by the accused and due to fear they do not record their evidence infavour of us (complainant party). Motive behind the occurrence was dispute over landed property. The occurrence was witnessed by tne os well as other people. I charge the accusedfor the murder of rnyfother and two brothers and alsofor attempt on my life.

)a(.@ross reserved on the mutual request of the counsel of the parties that due to paucity of time cross- examination shall be conducted on the next date of hearing.

Continued statement of Muhammad Shabeer aged about j0 years r/o Muhammad Shafique' r/o Rustam BandaTeri,TehsilBandaDaudShahDistrictKarakon ooth.

)A(. Nafees was my uncle and he was murdered in village Sharki regardingwhich accused Abid' Munir and Asghar were charged. The widow of Nafees namely

Shahnaz is now the wife of my brother Muhammad Naseer. The matter with the above referred persons/accused had been settled down and therearter, we hme no enmitywith them. It is correct that presently I cannot produce any proof that the rnatter was patched up with above referred persons/accused regardtng murder of my uncle Nafees. My uncle Siddique was also murdered. I am illiterate and jobless. Myfother was also jobless and working on daily wages. Deceased Asim and Muhammad Ashiq were jobless and were working on daily wages. I cannot dffirentiate the caliber ofweapon. On the eventful day we left over our house at about 07:55 hours and reached to the spot about 08:00 hours and the distance between our house and spot can be covered within 05 mtnutes by walk The fire shots made on the spot can be heard in our home. On the eventful day my elder brother namely Muhammad Naseer and my mother were not present in our house while my wife and my two sisters in laws were present in the house. As I cannot differentiate between dffirent types of weapons, therefore, I cannot say that what tltpe ofweapon accused Ajab Noor was holding at the time of occurrence, self stated that he was duly armed. My deceased father was not used to caty any rffie/topalc It is mentioned in my report that the occurrence was also witnessed by other people. Those other people were our co-villagers. I have bf not counted the number of other co-villagers as I was in shock and similarly I cannot mention their names as I was in shock. Deceased ShaJique got htt from the "firing of accused Ajab Noor. I cannot say that from firing of which accused deceased Asim and Ashiq were hrt because the accused were make indiscriminate Jiring. First my father got hit frorn the firing of accused. The /iring of accused continued for about 2/3 minutes. When accused decamped from the spot afier the occurrence then I attended my deceased father first and then my deceased brothers. I had noticed my one sister-in-lan (wfe of Naseer) attracted to the spot afier the occurrence. Many people of the village attracted to the spot including Muhammad Aman, Allah Noor, Sabireen etc. It is incorrect to suggest that as I was not present on the spot that's why I cannot tell the names of other co- villagers who had attracted to the spot. Cots were not brought to the spot. The vehicle w(N arranged by co' villagers; however, I do not remember the name of the personwho arranged the vehicle. Mustafawas the driver of the vehicle who is our remote relative. The vehicle was parked near to the spot. First deceased Shafique was shified to the vehicle by the co-villagers then deceased Ashiq and then deceased Asim. The deceased were

v shified to the vehicle by the co-villagers including Sabireen, Mustafa and Muharnmad Amaan and the vehicle would hwe been reached within 05 mtnutes of their arrival to the spot. Sabireen is the husband of my paternal aunt. The houses of Sabireen, Mustafa and Muhammad Amin would be at a distance of 10/15 minutes of the spot by walk and they might have corne to

I

the spot by walk After lodging the report, and my brother Naseer were put in lochtp by the police and afier 20 minutes of our lochtp I was taken to the spot by the local police. During spot inspection, Muhammad Arnan and Allah Noor were present with us on the spot. At the time of spot pointation I was in handcufr I pointed out the places of deceased to the police during spot inspection. The crtme empties were recovered in tny presence. As the crime empties were recovered in my presence, therefore, the relevant point of crime empties is in my lmowledge. As per poltce information 07 crime empties were of 7.762 bore while one crime emptywas of

I

.12 bore weapon and myself cannot dffirentiate the crime empties. Neither my thunb impression nor my signature was obtained by police during spot proceedings. In my presence the police had not obtained the signature of my any person on the spot during spot proceeding. During spot inspection the tractor was not available on the spot. The empty shell of 7.62 bore were lying near to the places of accused and the empty of 12 bore was lying near to the place of accused Aiab Noor. Atl the six accused made tiring on the spot. The accused were towards our west side. The crime empty of .12 bore was lying at the distance of about one feet from the place of accused Aiab Noor. At the time of report my brother Naseer was present. It is correct that civil hospital Teri and Police Station Teri are adiacent to each other with boundary wall. I and Naseer have identified the dead bodies in the Police as well as before the doctor in the hospital. I had. not taken any shelter during the firing of the accused on the spot. It is incotect to suggest that as I was not present on the spot that's wlry I hwe not tried to talre shelter form the firing of accused. The accused alongwith tractor and we reached to the spot at same time. I have not prodttced any revenue record of the spot land to the investigating fficer. Accused Klmlid was not injured on the spot. Before the occurrence the local police had taken security bonds from us and accused party regarding the disputed spot land' I have potnted out the well to the local police during spot inspection' The witness explained that the well is present in our own land. It is incorrect to suggest that neither I was present on the spot nor I have seen the occurrence that's why I

- ll -

\J harc neither received any iniury nor produced my besmeared clothes to the local police. It is incorrect to suggest that as it is an unseen occurrence and we ha'e widened net to charge the whole family of accused party."

10.Another important wihess in the instant case is Dr. Faiz Ullah who was examined as PW-l, who conducted the PM examination on the dead bodies of all the three deceased namely, Muhammad Ashiq, Muhammad Asim and Muhammad Shafique on one and the same day. His statement for the proper assistance and guidance is hereby reproduced as:- "statement of Dr.Faiz Ullah medical Officer at Civil hospital Teri, Korah on oath.

Stated that on 18.05.2021 at about 08:30am I conducted autopsy of the deceased Muhammad Ashiq s/o Muhammad Shafiq aged about 23 years r/o Rustarn Banda Teri, Karalc, brought dead and I found the following iniuries on the body of deceased:' Symptom observed before death: Instantaneous death' ftt Information furnished by police: FAI Wounds:

One entry wound of FAI on left chest (ateral aspect) I to 2 cm in stze.

One Extt wound of FAI on right side of chest, size about 2 to 3cm below right arm.

One entry wound of FAI on chest iust below lefi claicle' size about I to 2cm.

Exit wound on right scapula; size 2 to 3 cm' Cranium and s?inal cord: - Nil Thorax: Walls, ribs and cartilages, plurae, right lung' lefi lung, pericardium and heart and blood vessels found injuredwhile laryx and tracheawas intact' Abdomen: All organs werefound intact' Muscles. bones & ioints:- Chest muscles, vessels' lungs and heart found ini ure d.

v Remarlrs:- According to my opinion : instantaneous death occurred due to direct hit of chest vessels lungs and heart.

Probable time that elapsed between: - Injury & death :- Instantaneous Death & Post Mortem :- 0I to 02 hours. Today I have seen the Post Mortem report Ex.pM consisting upon 06 sheets including pictorial which are correct and correctly bears my signature. I then handed over the inquest report, injury sheet and garments of the deceased to police constable.

Similarly on 18.05.2021 at about 09:30am I conducted autopsy of the deceased Muhammad Asim s/o Muhammad Shafiq aged about 18 years r/o Rustam Banda Teri Karak, brought dead and I found the following injuries on the body of deceased:- Symptom observed before death: Instantaneous death. Information furnished by police : FAI Wounds:

FAI: Entry wound on right arm 1-2 cm in diameter. Exit wound on right arm medial aspect, size 2-3 cm. FAI Entry wound on laterol aspect of right side chest, size about l-2 cm.

Exit wound on lefi side of chest 4 to 5 crn lateral to lefi nipple, size is about 3 to 4 cm.

Cranium and spinal cord : Found Intact. Thorax: Walls, ribs and cartilages: Chest wall damaged. Plurae (both plurae damaged), Right lung and brt fung, pericardium and heart and blood vessels were found damage d whil e larynx and trache a found instact.

Abdomen: All are intact.

Muscles. bones & joints: Chest wall muscles hit. Right arm muscle also injured.

Remarlrs:- The deceased died due to direct hit by Fire Arm Injury. Both lungs heart and main vessels in thorax injured and caused instantaneous death. Probable time that elapsed between: - Injury & death :- Instantaneous death Death & Post Mortem :- 01 to 02 hours.

V Today I hcve seen the Post Mortem report Ex.PIvI/l conststing upon 06 sheets including ptctorial which are correct and correctly bears my signature. I then handed over the inquest report, injury sheet and garments of the deceased to police constable Arshad lqbal No.169.

Similarly, I also conducted autopsy of the deceased Muhammad Shafi.q s/o Ghulam Habib ageda bout 56 years r/o Rustam Banda Teri on the same day i.e. on 18.05.2021 at about 09:45am and I found the followtng injuries on the body of deceased:- Symptom observed before death: Instantaneous death.

Information furnished by police: FAI Wounds:

One Entry wound of FAI on right abdomen (iust lateral to umbilicus), size is I to 2 cm.

Exit wound on left buttock, size about 3 to 4 cm. One Entry wound on lefi buttock 2 to 3 cm below wound No.2.

One exit wound of FAI on mid of abdomen (below umbilicus), size of 2 to i cm.

Cranium and sPinal cord: Intact.

Thorax: Blood vessels (maio) of abdomen is iniured while rest of the organs were found intact. Abdomen: Walls and Peritoneurn were found damaged and rest of the organs found intact.

Muscles, bones & joints: Abdomen muscles are iniured' Remarks:- The deceased died due to direct hit of maior abdomen vessels, liver, intestines. Instantaneous death occurred due to huge blood loss' Probable time that elapsed between: - Injury & death :- Instantaneous'

Death & Post Mortem :- 01 to 02 hours' Today I harc seen the Post Mortem report Ex'PIvI/2 consisting upon 06 sheets including pictorial which are correctandcorrectlybearsmysignature.Ithenhanded over the inquest report, iniury sheet and garments of the deceased to Police constable."

11.In this case joint trial was conducted and at the conclusion of trial the matter was decided through a single common judgment of the trial court dated 08.11.2023. As per the F.I.& the role of firing was attributed to the 04 accused and the rest of the 02 accused were not given any role of fuing. The effective role of firing was given to accused Ajab Noor, Izat Noor, Shaista Noor and Khalid Hussain and the 02 accused namely Taslim and Mustaqeem were not given any role of effective firing. If we go through tle site-plan, the deceased Muhammad Shafique has been shown at Point # I while deceased Muhammad Ashiq at Point # 2, deceased Muhammad Asim at Point # 3 and complainant who is the only star eye witness being son of the deceased Muhammad shafique and brother of the two deceased Muhammad Ashiq and Muhammad Asim at Point # 4 and the site-plan has been prepared by the investigating officer at the instance of complainant (PW-9), that point # 4 is the place where the presence of the of the complainant has been shown and has seen the incident from this point vice versa Point # 5 has been given to the appellant/accused Ajab Noor, Point # 6 to appellant Shaista Noor, Point # 7 to Izat Noor, Point # 8 to the injured/appellant Khalid Hussain, Point # 9 to Mustaqeem accused and Point # 10 to accused Tasleem all have been shown armed with fire-arm. Yet the role of firing in the F.I.R has been attributed to accused lftalid Hussain, Ajab Noor, Shaista Noor andlzat Noor. However, when complainant appeared before the

trial court as PW-9, he athibuted the role of firing to all the six accused, but the leamed trial court did not take into consideration the statement of PW-9 to the extent of Mustaqeem and Tasleem accused and acquitted them and the rest ofthe 04 accused were convicted and sentenced as detailed in Para # 4 above, whereby giving no cogent reasons for recording conviction of the 04 accused while acquitting the rest 02 accused at the same time.

12.During the course of investigation, the investigating officer had recovered and had taken into possession 07 empties of 7.62 bore from Point # B, however, at the pointation of accused Mustaqeem a Kalashnikov 1954 F)'IY8055 was discovered, but surprisingly the same did not match with the empties recovered from the crime venue. It is also pertinent to mention here that one .12 bore empty shell was also shown recovererd from the place ofappellant Ajab Noor, one '12 bore riffle single barrel was also shown recovered at his pointation, but the same did not match with the .12 bore recovered empty from the place of Waradat -

13.On the other hand, if we look and take into consideration the NaqalmadNo.g of even dak recorded on the report of Khalid Hussain which is Ex.PW-3/1, which is across case that he

(Khalid Hussain) on the eventful day was ploughing through tractor his landed property. In the meanwhile, accused Shafique' Muhammad Asim, Muhammad Naseer and Muhammad Shabbir' his co-villagers came and told him that why he is ploughing the

property. He replied that this is his own properly and on this the accused started quarrelling with him and during the process Muhammad Shabeer accused fired at him with his repeater '12 bore as a result ofwhich he received and sustained injuries on his right shoulder and got down from the tractor and could do nothing as he was empty handed and charged the accused for the commission of crime. In the bottom of his report Ex'PW-3/1, the reporting officer has observed that the report of Khalid Hussain is cross version of F.I.R No. 125 dated 18'05'2021 u/ss 3021324t148t149 P.P.C, Police Station, Teri'

14.Another significant aspect of the case is daily diary No' was 17, dated 18.05.2021, as per the same, he/S'H'O Sada Khan on Gasht in the Teri area when received information that there is severe cross firing in the village Rustam Banda between the two

rival parties and the injured and deceased persons in the transaction have been shifted to the hospital' On this he found he along with police Nay'i rushed to the hospital where in the emergency room the 03 deceased alongwith injured s/o Amal complainant from the opposite side Khalid Hussain Noor.

15.In the cross version, of the present case' vide Naqalmad# acquitted from the 09 ofthe even date, all the accused have been charge of causing injuries to appellant lftalid Hussain despite

the fact that Muhammad Shabeer complainant of F'I'R # 125 was

given efflective role. In the instant case, perusal of the statement

of PW-9 shows that accused Ajab Noor was given the role of possessing .12 bore riffle, the relevant portion of the cross- examination is as under:-

"The empty shells of 7.62 bore were laying near to the places of the accused and the empty of .12 bore was laying near to the place of accused Aiab Noor."

16.This witness again stated that the .l2bore empty shell was lying at a distance of 0l feet from the place of Ajab Noor and according to the statement of PW-l/Dr.Faizullah, none of the entry wound is the result of '12 bore pellets at the person of all the three deceased'

17.Another intriguing aspect of the instant case is the officer when came to the place of incident, he recovered and took into his possession 07 empties of7'62bote while the F.S.L report opined the same to have been fired from the one and the same weapon which confirms the fact that there

was the was cross firing between the parties and that the incident result of single accused which reflected, otherwise, frstly that

at the stated the complainant (PW-9) was not present on the spot the extent of time and that he has recorded a false statement to not present on other accused. Furlhermore, the complainant was the spot, as the perusal of site-plan reveals that he has been

and was sitting shown at Point # 4 at a distance of almost 87 feet as a silent spectator despite the fact that his two brothers and

fatherweremurderedinthefansactionthoughhewasinthe scratch on firing range ofthe appellant, but there is not a single

v j

his body. Moreover, all the 06 accused have been charged for the firing where the }2have been acquitted and the rest 04 before the court has been convicted and sentenced and no appeal against their acquittal has been filed either by the state or by the complainant side particularly when on the same set of evidence 02 accused have been acquitted and the rest have been convicted then this Court cannot bifurcate the case of the 02 acquitted accused and that of the convicted 04 accused.

18.Now there is another question before this court when the investigating officer has accepted the fact that these were cross- cases, hence, the point for determination by this Court is to see as

to whether is there any evidence on the record from which it could be ascertained that who was aggressor and who was aggressed upon irrespective of the fact that larger casualties t suffered by the complainant side, but the record is totally in this respect. The investigating offtcer who has been examined silent

by the trial court as PW-3 (Ahmad Ali) who partially investigated the case and PW-4 Rafeed Ullah who initially

that which investigated the case, did not utter even a single word party was aggressor and which pw has acted in self defence' Reliance is placed on Inayatullah and another v. The state

portion is:- [PLD 1966 (W.P) Lahore E], the relevant

"1 1. '----'On the ptvotal questions of fact' namely' that it was the turn of Faiz Alam to work the well on 20'6'1963, and tttit Khurshid Alan want only well interfered with that right by tytng the mahal of the But to a nearby tree, the ibove findtng is unassailable' there is io reliable basis to infer there from that in

order to have /inal show down, there was "free and open/ight" in which the petitioners were aggressors- In raising the inference of aggression against the petitioners, the learned Sessions Judge completely over-looked the sequence of events leading to the transaction in which Fatz Alam on the one hand and Khurshid Alam on the other received iniuries. A consideration of sequence of events is essential to fix the initial responsibilrtyfor the outbreak of violence. It would be wrong in principle to hold the two petitioners as aggressors merely on the basis of the fact that the complainant and his son Hidayatulloh suffered greater number of iniuries than the iniuries suffered by Faiz Alam without taking into account the ambient circurnstances of the case, which are clearly established from the evidence on the record.--'-"-

19.Similarly, in the case ofl bdullah v. The State [PLD 1977 (Quetta) 321, itwas held:-

" Haii Sarfraz also claims that afier haing come to a conciusion of a free fight between the parties, and not having determined as to who was the aggressor it was incimbent upon the trial Judge to acquit the accused persons. He relies upon Gulab Amer Singh v' Emperor (A I R 1941 Lab. jjj). In this case one Person was killed and several others were iniured in a fight between two panics. There was no proof, in the cross- case, as to which party was the aggressor' It was held that all the accused must be acquitted' I would go by the latv laid down in this case and hold that in the obsence of a finding as to who was the aggressor the accusedwas entitled to acquittal' In vtew of these conclusions I need not deal with other grounds laken by the learned counsel for the

I

appellant. would therefore accept the appe-al and irdq acquittal of the accused' His bail bonds stand discharged."

20.In another case of Farid alias Kala and others v. The sratu and 4 others Fgsg scMR 939J, the Hon'ble supreme Court has held:-

at the ' 17. According to the site plan preparedmm and instance of the iye-witnesses' live empties of 7 three empties of 12 bore freshly dtscharged were coveredfro*point 7, seven empties of'12 bore and one empty o7Z **were coveredfrom point 8' Point N9'7 is iuit'beiow point No.2-alif where Ayb 4 ce-ased was 'fired point lro.a is in the Musafirkhana of -the at whzreas mosque is nibody,s case that either of the parties had fired from poini No'8, but since large number of empties were found from point No'7 which is adiacent

v to point no .2, it can be safely said that it was none else but Ayub who fired at his assailants from point No.2 when he was alive. Some pellets and cardboards were found from points Nos.9 to 24. This clearly indicates that there was o cross firtng) tween the two deceased and thetr assailants, as a result of which the two l, ceased lost their lives. The fact that there was cross /iring between the parties established by the injurtes sustained by Mashal appellant who had) been fully established by the injuries sustained by Mashal appellent who had received a firearm Wury on his lefi groin in the middle 3" x 2" gotng deep, :other small entrance wound 1/2" below iryury No.l, l/2,, x I/2,,. There were ' .o six exit wounds on his outer and upper portion of the lefi thigh at a distance I/2" from each otlter, each I/2" x I/2". Two cardboard pieces weighing 30 wins were removed from the clothes of Mashal and one large pellet weighing 50 rains removed from his skin on outer and upper portion of his lefi thigh. Besides Mashal, three other persons, namely, Mst. Nusrat, Muhammad Riaz and Mst.l irveen, have also stamp offirearm tnjuries on their persons. The injuries on the e E arson of Mashal have been conveniently suppressed by the eye-witnesses and so the injuries to Mst. Nusrat and Muhammad Riaz.

18.The re-appraisal of the entire evidence made by us has led us to the inclusion that the case against the three appellants as to, the charge of the murders of Kala and Ayub is not free from doubt. The ocular evidence having corne from interested witnesses ts not only discrepant but is belied by the medical evidence. The mottve too has not been established.

19.In view of the above the conviction of the three appellants, namely, ashal, Farid and Sabir, under section 302/34, P.P.C. cannot be sustained. Their apeal is accepted, the order of the High Court ts set aside and they are acquttted the charge of murders.

20.So far as the conviction of the three appellants under section 307/34, P.C. for causing injuries to Mst. Parveen rs concerned, Mashal appellant connot t' accused of causing injuries to her because the injury suffered by her was a pellet injury whereas Mashal was alleged to be armedwith a rifle. He is thus, acquttted of the charge under section 307, P.P.C. also. Of course, Sabir and Farid not escape this conviction. lvht. Parveen received a pellet injury on her person their hand. The conviction and sentence of Sabir and Forid under section 307/34, P.P.C. a,narded to them by the High Court is justi/ied and accordingly maintained.

21.The appeal is thus allowed with the above modiJication.

22.The petition filed by Karim Dad for enhancement of the sentence of the appellants outomaticallyfoils and is hereby dismtssed. "

v 21. In the case of Piral alias Peero and 4 others v. State [PLJ 2001 Cr.C (Karachi) 8331 , it was held:- " I have heard learned counselfor the parties and with their assistance I hwe gone through the evidence adduced by the prosecution and hmte examined very carefully medical evidence. Admittedly the counter case has-been filed from the side of the appellants and the witnesses who hwe been nominoted in the counter case have suppressed their role before the trial Court which they iwra during the commission of offence' Admttiedly the plea of setf'defence is also spelt out from the evidence rendered by the prosecution witnesses' I have carefully gone through the medical evidence and I have gone through the evidence of the witnesses who have deposed before the trial Court that the iniuries causedlo deceased and injured are result of hatchet blowsfromsharpcuttingweaponswhereasthemedical evidence ,rurilt that the deceased and iniured sustained iniuries on their person by way of Hunt substance. If has been held by the superior courts that in counter cases it ts adiudge as to who is aggressor and who has aggressed and the benefit if doubt has beengiventotheaccusedinsuchcircumstances' Admitledly plea of self'defence is also spelt out from the evidenci adduced by the prosecution. Admittedly the witnesses who have been examined by the prosecutionhavesuppressedtheirrolewhiledeposing theirevidencebeforethetrialCourtandthusthey cannot be called is honest-witnesses. Reference can be madeinacasereportedinlgTgSCMR2l4wherein Hon'ble Supremi Court has observed that fundamental -see iequirement before the trial Court' is to whether thi witness is honest or dishonest and it is not requirement before the trial Court to see whether in the witness is interested, dis-interested or hostile and the instant case the witnesses have deposed before the trialCourtandhayeverycleverlysuppressedtheirrole the commission of the 'ffince by them during ptayed oi aforementioned authority of and in the light theHon,bleSupremeCourt,theprosecutionwitnesses are not honest witnesses and their evidence cannot be

reliedupon.Upshotoftheabovediscussionisthatthe prorrrition has miserably failed to prove its case 'beyond reasonable doubt against the present and appellants. Accordingly I set aside the conviction sentence and tn riiultthis appeal 's allowed' ipp,etlan* are on bail, their bail bond and surety stands discharged"

22.The Hon'ble supreme court of Pakistan in the case of SaeeMuhammadv.Thestatel2o0TSCMRzo3|,hasalsoheld that:-

v "4. The plea has been taken on behalf of the accused including the petitioner that it were the members of the complainant party who were aggressors and they attackcd the accused party, as a result of whtch Muhammad Nawaz and Shera had sustained injuries and in this respect High Court while nottng the submissions made by the learned counsel for the petitioner has observed: -- "In the counter-version raised by Muhammad Nanaz- appellant on 20-9-1995, the other side was also challaned to face their trial. They were found guilty and puntshed ac cordingly. "

5.The petitioner and his co-occused have gtven a details about the occurrence tn their statements recorded under section 342, Cr.P.C. and harc also stated about the attack on them by the complainant party. Nawaz and Sher co-accused have also appeared as D.W.I and D.W.2 and have given statements and support the counter-verston on oath. P.W.17, Investigating Oficer lws also stated about the counter- case and the admisston of Nawaz and Shera in the hospital on account of their injuries sustained by them and that the Medical Officer did not allow him to record their statements by stating that, according to the Doctor, "they were not fit to make their statements". The motive as set up also by the prosecution not been believed by both the Courts rather the one set up by the accused party motivating the complainant party for aggression was A stated to be true os per statement of the Investigating Officer. The, learned trial Court has further observed as under:-- "Region of origin and point of ignition could not be dtscovered. The police did not ferret out real cause behind this episode. Involvement of both the sides in the occurrence is as clear as the daylight. Both the sides have not come withwhole truth. The story of aggression is berefi ofsound reasons. In suddenfight, there is no pre-planning and it is a chance encounter, where passions suddenly became volatile. In free fight both the sides come prepared for trial of their strength. No questton of self-defence arises. I am of the view that it was a chance encounter, when both the sides came in front of each other suddenly. Something happened ot the spur of moment resulting into outbreak of this incident. Saee Muhammad-appellant delivered a single blow, whereas others caused simple iniuries to the prosecutionwitnesses. There is no material dispute with regard to date, time and place of occurrence. Place of occurrence is on the roadside and not in the fields of the accused."

6.In view of the observations made by the High Court in the impugned iudgment, the extract of which have been reproduced above, we have examined the evidence andfound the same borne out on the record of the case. In view of such circumstances, when the situation lead to a free fight between the parties, subsequently one cannot be deJinite that it was the petitioner side who either initiated the episode or they

v have exceeded their rtght of self-defence and particularly when the deceased has received only one Sota blow and who then fell in the pond. All the accused, who are Jive in numbers have been convicted and sentenced to dffirent terms, some of whom hove already undergone the sentences.

7.For what has been stated and observed above, it becomes clear that the prosecution has not been able to prove its case beyond reasonable doubt qua the mens rea or guilt of the petttioner and while gring benefit of doubt, he is entitled to acquittal. The appeal is allowed, the appellant Saee Muhammad is acquitted of the charges. He be released fortltwith, if not required in any other case."

23.The apex court in the case of Mushtaq Hussain and another v. The state l20ll SCMR 451 has held as under:- " 25. To rebut the argument that the defence did not plead right of self defence, we will refer to very recent judgment by this Court reported as Ghulam Farid v. The State, (2009 SCMR 929) where it was ruled that an accused if not raised the plea of self-defence during the trial etther in his statement under section 342, Cr.P.C. or at the time of cross-exarnination of prosecution witnesses--Court, however, could infer the some frotn the evidence led during trial if it was tenable.

26.Stnce benefit of cross-version was given to the accused of cross-case, same will be extendable to the present two appellants particularly when the two eye' witnesses were injured but have charged the acquitted co-accused as well for caustng iniuries to them. The net result of this detailed discussion is that since both the Courts below have held that there is a cross-case and no definite finding can be grven about the aggression made by the present appellants, they were entitled to benefit of doubt.

We therefore allow this appeal, convictions and sentences are set aside and they are acquitted of the charges"

24.Now coming to the question as to whether all the 06 accused or 04 accused participated in the commission of the crime for that matter, we have to examine the statement of Dr.

Faizullah (PW-l), according to him there were two injuries each on the person of each deceased which fact is evident from all the three PM reports and as per the statement of PW-l, almost all the entry wounds were of one and the same dimension except the

one in the case of the deceased Muhammad shafique, entry # 3 whereby he received one FA en@ wound on left buttock 02 to 03 cm, while rest of the enbry wounds were similar like the other deceased which suggest that it was the job of a single accused.

Reliance in this regard is placed on "Farman Ali and 03 others v. the State' [PLD 1980 SC 20U, the relevant portion is as under:-

" -----it is in she 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 was also sent to: him . by the: Investigation. Officer. It would therefore follow that Rashid Klwn had been shot through a pistol and certainly not through a rifle 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 tniuries suffered by Rashid Khan rather suggest that it was the work of one tnan. It is cornmon lorcwledge that .32 bore .t/ pistol is an automatic weapon carrying in its charger ln seven bullets. The fact that the deceased was found to have suffered seven inlet wounds, three of them in his lefi Knee joint, one on his lefi elbow, two in his abdomen and one in baclcward direction to his right supertor iliac spine, the inlet -size of all ofwhich 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 injuries, therefore, no option is lefi but to hold that the prosecution has failed to bring home its case against any one of the appellants."

25.In another judgment in the case of Mukhtai v. Ebn-e- Amin 12022 MLD 384], this court held that:- " 15. Another important aspect of the case is that there is no report of FSL that the 03 empties of 222 bore and 9 empties of 7.62 bore collected from the spot were fired from more than one weapons. In the instant case, /ive persons, four of whom are brothers ond one is nephew, are charged for the murder of two persons. In

v such ltke situation, production of the FSL report showing that the empties were fired from five weapons was must which material piece of evidence the prosecution has not produced and it appeared to us that the charge was exaggerated one which larnentable trend is very common in the area."

26.Now turning again to the question of the presence of complainant at the stated day and time, wo have minutely examined the statement of Dr.Faiz Ullah (PW-l) according to him he has conducted PM examination of the deceased Muhammad Ashiq at about 08:30 a.m while that of deceased Muhammad Asim at about 09:30 a.m and in case of deceased Muhammad Shafique at about 09: 45 a.m. If we peruse the PM reports of all the three deceased as well as the murasila (Ex.PW.5ll) / F.I.R (Ex.PW-2/1) of the PW-9, according to which the incident has allegedly taken place at 08:00 a.m, while the same was reported to police at 08:50 a.m. Now, if we see the statement of PW-5 who allegedly recorded the report of the complainant in shape of murasila at hospital who has also prepared the inquest reports and injury sheets of all the deceased has stated that he reached to the hospital on the receip of information about arrival of the dead bodies to the hospital Teri where he recorded the report of the PW-9 (complainant) Muhammad Shabeer at about 08:50, a.m, which clearly suggests nothing else but confirm the fact that the complainant's presence was procured later on for the reason that at the time of report one of the deceased Muhammad Ashiq and injured Khalid Hussain (appellant) were already examined by the doctor at about 08:30

v o.ffi, thus, we have reached to the conclusion that the complainant PW-9 was not present on the spot and the incident had not taken place in the mode and manner and at the stated time as unfolded by him.

27.Moreover, in the instant case as many as six accused almost of one family including the appellants (brothers inter se) and the two acquitted accused were charged. 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 ttre 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 12018 MLD 9731, held that:- " 5. Perusal of the case record would show that complainant of the case appeared before the court as PW-2 while one Sajid testified as PW-3. Both the witnesses though have deposed against the accused in line with the allegations contained in the case FIR (Ex.P,UI) but pronounced aspect of the case is that the appellant is father of the two absconding accused and is an old man of 70 years. It is worth to note that PW'3 has stated in his cross-exatnination that afier firing the accused fled away towards northern mountoin. As the appellant is a septuagenarian i.e. 70 years old, therefore, his fleeing towards the mountain for hiding afier the occurrence is a fact, which cannot be believed keeping in view hts infirmness as by then he had orbited around the sun for 70 times. Record re/lects that the iob of firing at the deceased is not that ofthe three persons as has been alleged in the FIR and deposed by the prosecution's witnesses. It appears that the complainant side has leveled an exaggerated charge so as to enrope therein the appellant for his being father of the two abscondtng accused, which practice is very much common in the country."

28.Similarly, in another case of Khalil-ur-Rehman v. The State and another 12019 YLR 25531, it was held that:- "ll. Desprte .firing by all the five accused with sophisttcated weapons, the complainant Bahadar Sher and PW Hamayun did not receive a single firearm or lacerated injury. During spot inspection, the I.O. recoveredfive empties of 7.62 bore from points Nos. 6, 7, and 8 assigned to accused namely Farman, Khalil-ur- Rehman, and Burhan while from points Nos.4 and 5 three empties of 7.62 bore were shown to have been recoveredfrom the places ofaccused Bahadar Sher and Gulzar, which are inside the sugarcane crops, but these empties were not sent to the FSL for ascertaining as to whether these were fired from one weapon or more. The true mode and manner of the occurrence appears to have been suppressed. The charge appears to hwe been exaggerated and the net has been thrown wide by implicating five persons without assigning any specific role to any of them, possibility offalse implication could not be ruled oul In this respect reliance ts placed upon the judgnent of Hon'ble Supreme Court rendered in Sohni's case (PLD 1965 Supreme Court 111), wherein it was held that;

"Furthermore, according to Doctor Muhammad Yamin Khan out of the 9 injuries found one Maulo deceased 2 were contused wounds, 1 incised wound, 1 was abrasion and the rest were contusions. Death was due to the shock and compression of brain caused by blood clots due to fracture of skull which was caused by injuries Nos. 1 and 2 that were found on the deceased. Most of the remaining injuries were on the leg of the deceased. ln view of the number and nature of injuries one may legitimately ask whether this could possibly have been the result of assault by 6 accused persons or that they could have been easily caused by two or three persons. Viewing all the circumstances we are satisfied that the High Court was right in insisting on some corroboration of the evidence of the eye-witnesses connecting the accused with the crime. As such corroboration was lacking, the High Court was justified in giving the benefit of doubt to the accused persons."

29.The cumulative effect of what has been stated above, leads this Court to an irresistible conclusion that the prosecution failed

V to bring home guilt against the appellants. The impugned judgment is suffering from inherent defect which calls for interference. The impugned judgment is set-aside and consequently the appellants Khalid Hussain, Ajab Noor, Shaista Noor and Izat Noor involved in case FIR No.125 dated 18.05.2021 lJtSs. 302t32411481149 PPC, PS Teri, District Karak are acquitted of the charge leveled against them. They be set at liberlry forthwith, if not required in any other criminal case'

30.As the main Criminal Appeal against conviction has succeeded, so the connected Cr.A No.129'B/2023 (Khalid Hussain v. The State erc) and Cr.R No.75-Bl202i (Muhammad Shabeer v. Khalirt Hussain etc) lnve lost im utility to proceed the same being bereft of merit is hereby dismissed'

31.The above are the detailed reasons ofthe short order ofthe even date.

Announced

*lmranullah PS* -Sd- Judge uxr

JUD GE

-Sd- Judge

L

v

JU DGE

v\

\) (D.8)

Altldl & Hon'b'' Mr' lul,;lc2 Abdut Fnyoz Hon'rh Mr. tustir;€ MuhdmnodTa&

qcuqw\

1 5 APR-2825\

$tll$il#"