Tayyab Khan and another Vs The State etc.

PE s HA*AR HiElf t f.lf,[:'Jo**, B E N cH (Judicial Department)

Cr.A No.367-B 12023

Tayyab Khan and another v.

The State etc.

JUDGMENT

For appellant(s): Mr. Muhammad Rashid Khan Dhirma Khel Advocate

For State: Mr. Abdul Waheed Khattah. A.A.G.

For respondent: Mr. Farooq Khan Sokari Advocate Date of hearing: 27.02.2025

,6rsrt*rr

ABDUL FAYAZ. J.- This appeal under section 410 Cr.P.C.

is directed against the judgment dated 08.11 .2023, passed by the Court of Additional Sessions Judge-I, Bannu ('6the trial court"), whereby, 'Iayyab Khan and Fahad Khan ("the appellants") were convicted and sentenced:

i. Under section 302(b) PPC, to rigorous imprisonment for life as ta'zir, along with payment of Rs.4,00,000/- as compensation to the legal heirs of tlre deceased in terms of section 544'A Cr.P.C., or in default of payment, to suffer 06 months of S.I. each;

ii. Under section 324 PPC, to 02 years of rigorous imprisonrnent eachl and

iii. Undcr section 337-F(iv) PPC, to 01 year of rigorous imprisonrncnt with a fine of Rs.1r00,000/- payable to the injured / complainant, or in default of payment' to suffer 03 months of S.I. each.

Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justicc Abdul Fayaz

The benefit under section 382-8 Cr.P.C. was extended to the appellants, and the sentences were ordered to run concurrently.

2.The brief facts of the case, as na:rated by the complainant in the FIR Ex.PA, are that on 27.10.2018 at 19:40 hours, the complainant Riaz Khan, in injured condition, while present with the dead body of his brother Sher Daraz Khan in the Emergency Ward of Civil Hospital, Bannu, lodged a report stating that on the eventful evening, he and his deceased brother were present in their guesthouse.

Meanwhile, at about l8:50 hours, indiscriminate firing began at them from outside the main gate of their guesthouse.

Subsequently, the appellants Tayyab Khan and Fahad Khan, along with their co-accused Shoaib Khan, armed with Kalashnikovs, entered the guesthouse and started firing at the complainant and his brother with their respective Kalashnikovs, intending to commit their qatl-i-amd. As a result, the complainant and his brother Sher Daraz Yr.han were hit and seriously wounded, with the latter breathing his last at the spot. After the occurrence, the assailants decamped from the spot. The motive for the offence, as alleged, was that the assailants were forcibly taking the house of the complainant party for someone else. This report led to the registration of FIR No.657, dated 27.10.2018, under sections Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Abdul Fayaz

302 I 324 I 34 PPC at the Cantt. police station in Bannu district.

3.After the completion of the investigation, the report (challan) under section 173 Cr.P.C. was submitted against the appellants. After facing a full fledged trial, they were adjudged guilty, and vide judgment dated 26.02.2021, they were convicted and sentenced by the Court of Additional Sessions Judge-I, Bannu, in the same manner as indicated hereinabove. This decision was appealed against before this Court in Criminal Appeal No.47-B 12021, where it came to light that regarding the same incident, another FIR No.659, dated 27.10.2018, had also been registered under sections 302 I 34 PPC at the Cantt. police station. Similarly, it was

I

noted that another person had also received injuries in the incident, for which a separate FIR was registered. This fact had, however, not been brought on record. Consequently, by its order dated 20.06.2022, a leamed Division Bench set aside the impugned judgment and remanded the case to the trial court with the directions to summon the relevant witnesses as court witnesses, bring the relevant records through the concerned witnesses, and decide the case afresh after affording an opportunity of cross-examination to the parties. Pursuant to this, the relevant witnesses were Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Abdul Fayaz

summoned, the record was exhibited, and the parties were provided an opportunity of cross-examination. After hearing the arguments, the trial court again found the appellants guilty, leading to their conviction and sentence, as aforesaid.

Hence, this appeal.

4.Arguments heard. Record perused.

5.After scanning through the record, we find that the trial Court has thoroughly appreciated the evidence on file.

However, being the Court of appeal, it is under a bounden duty to reappraise the entire evidence to determine as to whether the prosecution has indeed succeeded in establishing the guilt of the appellants and whether the trial Court arrived at a just conclusion, so as to uphold the principles ofjustice.

6.While undertaking this decisive exercise, we find no denial of the fact that the complainant bore a stamp of firearm injury on his body, and this fact was established on the strength of his MLC Ex.PW-7/I, duly corroborated by the testimony of Dr. Sardar (PW-07). Consequently, the presence of complainant at the spot remains established.

However, the mere fact that a witness has succeeded in establishing his presence at the spot is not sufficient, as it is not merely the presence of a witness at the spot that matters, but the intrinsic worth of testimony such witness furnishes.

Ghafbor Zaman (D.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel I{on'ble Mr. Justice Abdul Fayaz

7.The complainant Riaz Khan entered the witness box as PW-09. In his examination-in-chief, he reiterated the same story as was narrated by him at the time of lodging the FIR (Ex.PA). In his cross-examination, the complainant remained adamant in asserting that at the time of the occurence, he did not change his position or the place where he was hit and fell to the ground. If we juxtapose this part of his testimony with the site plan (Ex.PW-4/1), it reveals a major contradiction. In the site plan, the complainant is initially shown present at point No.l in the veranda, whereas, his second position is reflected at point No.lA, which is situated in the courtyard of

I,

J the guesthouse, where the occurrence took place. It is imperative to note that the I.O., during the spot inspection, found no blood at either of these places. Notably, the I.O.

categorically admitted in his cross-examination that there was no blood at the place where the complainant was present.

8.As noted above, on the same night, at 20:10 hours, the appellant Tayyab Khan also lodged a report, wherein he charged the present complainant Riaz Khan, along with co- accused Gul Muhammad, Gulbaz Khan, Rahmat Ullah, and Balqiaz Khan, for causing him a firearm injury in an attempted murderous assault. He also disclosed in the report Ghafoor Zaman Hon'ble Mr Karnran Hayat Miankhel Hon'ble Mr. Justice Abdul Fayaz

that in the incident, one of the accused Gulbaz Khan and the complainant Riaz Khan were hit by the shots fired by their co-accused at Tayyab Khan (the present appellant) and his father Muhammad Rafiq. In this respect, separate FIR No.658 was registered under sections 324 I 148 I 149 PPC at the same police station.

9.Similarly, the above said Rahmat Ullah made yet another report regarding the culpable homicide of his brother Gulbaz Khan by accused Shoaib Khan and Abid Ullah, who fired at him with Kalashnikovs.

10.It is significant to note that a controversy erupted .{ between the parties qua the question as to whether the aforesaid cases could be considered cross versions of the same incident or not. The learned counsel for the complainant vehemently argued that the times and places of occurrence in all these cases are different. In this context, he also referred to the admission made by the I.O. in his statement as CW-04. The leamed counsel, therefore, maintained that the cases referred to above could not be said as cross cases of the instant case. Conversely, the learned counsel for the appellant argued that the date, times, parties, and venue in all these cases are the s€rme and, therefore, there Ghafoor Zaman (D.8.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Abdul FaYaz

remains no ambiguity that the referred cases involve cross versions regarding the same incident.

11.In our view, there is no denial of the fact that in order to hold a case as one of cross version, the date, time, place, and parties must be the same. In this context, we find that the present complainant Riaz Khan has charged the appellants Tayyab Khan and Fahad Khan, along with co-accused Shoaib Khan, for the death of his brother Sher Daraz Khan and causing him firearm injury on27.10.2018 at 18:50 hours in his guesthouse situated at village Amandi Qamar Din. In its consequence, the present FIR No.657, dated 27.10.2018, was registered under sections 302 I 324 134 PPC against the aforesaid accused at Police Station Cantt.

12.Similarly, the appellant Tayyab Khan also lodged a report regarding the firearm injury allegedly caused to him in an attempted murderous assault by the accused Gul Muhammad, Gulbaz Khan, Rahmat Ullah, Balqiaz Khan, and Riaz Khan (the complainant of the present case) on 27.10.2018 at l8:50 hours in the street near the guesthouse of Sher DarazKhan (the deceased in the present case) situated at Amandi Umer Khan. Notably, in his report, the appellant Tayyab Khan also disclosed that as a result of shots fired by the accused, their co-accused Gulbaz Khan and Riaz Khan Ghafoor Zaman (D.8.) Hon'ble Mr. Justice Kamran tlayat Miankhel FIon'ble Mr. Justice Abdul Fayaz

(the complainant of the present case) were also hit and injured. He funher disclosed that as a result of shots fired by the accused, Sher Daraz Khan (the deceased in the present case) had also received firearm injuries and died. This incident was recorded in the form of FIR No.658, dated 27.10.2018, under sections 324 I 148 I 149 PPC at Police Station Cantt.

13.Likewise, Rahmat Ullah, who was charged as accused in case FIR No.658, lodged yet another report, wherein he charged Shoaib Khan and Abid Ullah for committing the culpable homicide of his brother Gulbaz Khan on27.10.2018 at 18:45 hours by way of firing with Kalashnikovs in the street near the guesthouse of Sher DarazKhan (the deceased in the present case) situated at Amandi Umer Khan. f

M. Alter meticulously scanning through these reports, we have no doubt in our minds that the date, time, and parties in all these cases are the same. The crucial point that remains for our detennination is the place where these occulrences took place. As far as the venue of occurrence in the present case is concerned, it is shown as the complainant Riaz Khan's guesthouse situated at village Amandi Qamar Din, whereas, in the latter cases, it is shown as the street near the complainant Riaz Khan's guesthouse situated at village Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Kamran Flayat Miankhel I{on'ble Mr. Justice Abdul FaYaz

Amandi Umer Khan. True, the I.O. (CW-04), when cross- examined by the learned counsel for the complainant, admiued that the times and places of occuffence in all the three cases are different. However, it is equally true that when the I.o. (cw-04) was cross-examined by the defence counsel, he admitted that village Amandi eamar Din and Amandi Umer Khan are separated by a small street and that the distance between the places of occurrence in case FIR No.657 and 658 would be about 60 to 65 paces, with both these places being visible to each other. In these circumstances, when the two villages are separated only by a small street, and that too by just 60 to 65 paces, and when both these places were visible to each other, then it can be safely concluded that the place of occurrence in all these d { cases was one and the same.

15.In cross cases, the consistent view of the Superior Courts is that the prosecution must establish that the accused charged were the aggressors and that the complainant party was aggressed upon. We are also conscious of the fact that the complainant Riaz Khan, who was charged in case FIR No.658, was declared innocent by the I.O. and was placed in column No.2 of the challan. Nevertheless, this alone is not sufficient to hold his testimony as a gospel truth, and the fact Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel FIon'ble Mr. Justice Abdul Fayaz

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\, still remains that he suppressed the real facts pertaining to the injury sustained by the appellant Tayyab Khan and the death of Gulbaz Khan, who undoubtedly sustained firearm injuries in the incident. As noted above, on one hand, the prosecution concealed the real facts pertaining to the death of Gulbaz Khan and the firearm injury sustained by the appellant Tayyab Khan, while on the other hand, it failed to establish that the appellants were the aggressors and that the complainant pafiy was aggressed upon. Therefore, this particular aspect of the case has rocked the very foundation of the present case. In the case of Pasand Khan v. The State (2011 YLR 1664 Peshawar), it was observed that the suppression of frcts by a witness with dishonest intention would adversely reflect upon the veracity of his testimony, and the fatlacy of his claim would, thus, crumble to the ground.

16.Even otherwise, if for the sake of argument, we are to accept the argument put forward by the learned counsel for the complainant that the places of occurrence are different, then we have to reject the complainant's testimony that the appellant Tayyab Khan entered his guesthouse and committed the offence. This is because when, at 18:50 hours, the time of occumence, the appellant Tayyab Khan was Ghafoor Zaman (D.8.) Hon'ble Mr. Justice Kamran Hayat Miankhel FIon'ble Mr. Justice Abdul Fayaz

V present at a different place, where he also sustained a firearm injury on his body in case FIR No.658, then how was it possible for him to arrive at the venue of the present occurrence to commit the offence? Notably, the prosecution failed to answer this question satisfactorily.

17.The peculiar facts and circumstances of the case suggest that the occurrence has not take place in the mode and manner as alleged and presented by the prosecution. The consistent view of the Superior Courts emphasizes that in cases where it becomes evident that the incident did not occur as portrayed, then the benefit of doubt should be given to the accused. The cases of Nawab Khan v. State (2024 YLR 457 Peshawar), fawad v. The State and another (2020 YLR 1462), and Jalat Khan alias Jalo v. The State (2020 PCT.LJ 503) are, but few to refer in this regard.

Furthermore, the High Court of Balochistan unequivocally affirmed and reiterated the effect of such discrepancy on the prosecution case in Rafaat shoh v. The state (2022 PCT.LJ Note 39 Balochistan). The operative part of the judgment reads as under:

The mode and manner of the occurrence itself by the prosecution is not appealable to the prudent mined, therefore, it was highly unsafe to rely on the statement of both these witnesscs to maintain conviction and sentence ofthe accused on a capital charge.

Ghafoor Zaman (D.8.) Hon 'ble Mr. Justice t(amran llayat Miankhel Hon'ble Mr. Justice r\bdul FaYaz

w 18, The prosecution also alleged that the appellants were forcibly taking the complainant's house on rent for someone else, and the refusal of the complainant party led to the incident. We have carefully examined the record, but did not come across any evidence in support of this claim.

The I.O. also admitted that he has not verified the motive of the offence advanced in the FIR. In these circumstances, we have no doubt in our minds that the prosecution failed to prove the alleged motive, and in such an eventuality, it is the prosecution that must suffer. We are cognizant of the fact that the weakness or absence of motive does not play a decisive role in undermining the prosecution case, but once the prosecution alleges a motive, it is under a legal ll obligation to prove the same. In this particular case, it is the only motive which allegedly prompted the appellants to perpetrate the offence, but its failure has damaged the prosecution case to a greater extent. In this regard, wisdom can also be derived from the judgment rendered by the Apex Court in case titled Muhammad Akram alias Akrami Vs The State (2019 SCMR 610) in which it was held

We are of the view that the motive set out by the prosecution remained far fronl being proved. It is rveltr settled that when prosecution alleges something against Ghafoor Zaman Hon Kalnran Hayat Miankhel Hon'ble Mr. Justice Abdul Fayaz

an accused person and then fails to prove the same, the premium of such failure must go to an accused person. In this case as well, prosecution's failurc to prove the motive set out by it certainly benefits the appellant.

19.As far as the medical evidence and the circumstantial evidence are concerned, we find that, undoubtedly, the medical evidence confirmed that the deceased died as a result of receiving firearm injuries, with the complainant having sustained a firearm injury, and the FSL report also confirmed that the twenty one crime empties recovered from the spot were fired from different 7.62mmbore weapons, suggesting the involvement of more than one assailant in the crime.

Nevertheless, the fact remains that the value and status of these pieces of evidence are confirmatory and corroborative in nature. The medical evidence only confirms the nature, -d

seat, and kind of injuries and the weapon usecl, whereas, the circumstantial evidence only corroborates the ocular testimony to the extent that more than one assailant took part in perpetrating the offence. However, what remains decisive factor is that who fired those shots which caused the said injuries? Notably, these pieces of evidence cannot definitively establish that the shots were fired, or that the injuries were caused, by the appellants, and the appellants alone. As the answer to this decisive question remains a mystery, and the ocular account could not prove beyond a Ghafoor Zaman (D.8.) Hon'ble Mr. Justice Kamran l-layat Miankhel Hon'ble Mr. Justice Abdul FaYaz

reasonable doubt that those who inflicted the injuries on the deceased and the injured were indeed the appellants, therefore, the medical evidence and the circumstantial evidence in this case are of no avail to the prosecution. In this regard, guidance can also be gleaned from Naveed Asghar v. State (PLD 2021 SC 600), wherein the Supreme Court ruled:

31.The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also d has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offcnder. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured rvitness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person' Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.

Ghafoor Zaman (D.B.) I{on'ble Mr. Justice Kamran Hayat Miankhel I{on'ble Mr. Justice Abdul FaYaz

20.After reappraising the entire evidence, we have reached the inescapable conclusion that the prosecution has been unable to prove the charge against the appellants through compelling evidence beyond a reasonable shadow of doubt. It is a well settled principle that not many doubts are required, rather a single doubt would suffice for acquittal, if it reasonably pricks the judicial mind as to the guilt of the accused. In this regard, reliance is placed on Muhammad Imtiaz Bai v. State (2024 SCMR 1191), Abdul v.

State Q024 SCMR 1146), and Sardaran Bibi v. State (2024 SCMR 1116). SimilarlY, in Riaz and v.

The State and others (2024 SCMR 1839), the SuPreme tl Court ruled:

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$ It is an established principle of law that to extend the benefit of the doubt it is not necessary that there should be so many circumstances. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evitlence to procure conviction then the court can come forward for the rescue of the accused persons as held by this court in Daniel Boyd (Muslim Name Saifullah) and another v. The State (1992 SCMR 196); Gul Dast Khan y. The State (2009 SCMR 431); Muhammad Ashraf alias Acchu v. The State (20L9 SCMR 652); Abdul Jabbar and another v. The State (2019 SCMR 129); Mst. Asia Bibi v. The State and others (PLD 2019 SC 64) and Muhammad Imran v. The State Q020 scMR 8s7).

21.In this state of affairs, we have no doubt in our minds that the trial Court failed to properly appreciate the evidence Ghafoor Zaman (D.B.) Hon'ble Mr. Justice I(amran tlayat Miankhel tlon'ble Mr. Justice Abdul FaYaz

\-J presented and, therefore, erred in handing down the impugned judgment, which resulted in a miscarriage of justice, warranting interference by this Court.

22.As a result, we allow this appeal, set aside the impugned judgment, ffid acquit the appellants of the charges by extending them the benefit of doubt. The appellants shall be released forthwith, provided they are not required to be detained in any other case.

23.The foregoing are the reasons for our short orders of evell date.

Annorl4ded

-Sd- Judge

-Sd- Judge N*o

JUDGE

Ghafoor Zaman (D.B.) Hon'blc Mr. Justice Kamran Hayat Miankhel tlon'ble N{r. Justice Abdul Fayaz