Muhib Ullah Vs The State & another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 751-P/2024

Muhib Ullah Vs The State & another

JUDGMENT

Date of hearing: 24.09.2025

Appellant by: Mr. Shabbir Hussain Gigyani, Advocate.

The State by: Mr. Ayub Zaman, AAG.

Respondent / complainant by: - Mr.Yousaf Shah Mohmand, Advocate.

SAHIBZADA ASADULLAH, J.- Through this single judgment, this court is intending to decide the instant appeal as well as connected criminal revision No. 233-P/2024 titled “Mutahir vs Muhib Ullah & another” as both the matters are arising out of one and the same judgment dated 07.09.2024 passed by the learned Additional Sessions Judge/Judge MCTC, Mardan delivered in case FIR No. 783 dated 09.12.2012 under sections 302/324/148/149/109 PPC at police station Saddar, District Mardan, whereby the

appellant Muhib Ullah was convicted and sentenced as under:

“Under section 148 PPC, for committing the offence of rioting to rigorous imprisonment for three (03) years.

U/S 302(b)/149 PPC to imprisonment for life as Tazir on two counts for committing Qatl-e-Amd of Wisal s/o Purdil Khan and Atta Ullah s/o Namdar Khan and also to pay compensation of Rs.5,00,000/- (five lac) to the legal heirs of both the deceased in terms of section 544-A Cr.P.C. The amount of compensation shall be recoverable as arrears of land revenue and in default of payment of compensation, the accused shall suffer simple imprisonment for six months.

U/S 324/149 PPC to Rigorous Imprisonment for ten years on three counts, for attempting to commit Qatl-e-Amd of injured/complainant Mutahir Khan and injured Basit and Zia Ullah by firing at them effectively and to pay fine of Rs.50,000/- and in default of

payment of fine, the accused shall further undergo Simple Imprisonment for three months.

U/S 337-F(iii)/149 PPC for causing firearm injury to the complainant Mutahir Khan to pay Daman of Rs.80,000/- to the complainant and Rigorous Imprisonment for one year as Tazir and in default of payment of Daman, the convict shall be kept in jail and he be dealt with in the same manner as if sentenced to Simple Imprisonment until payment of Daman.

U/S 337-F(iii)/149 PPC for causing firearm injury to injured Basit to pay Daman of Rs.80,000/- to the injured Basit and Rigorous Imprisonment for one year as Tazir and in default of payment of Daman, the convict shall be kept in jail and he be dealt with in the same manner as if sentenced to Simple Imprisonment until payment of Daman.

U/S 337-F(iii)/149 PPC for causing firearm injury to injured Zia Ullah to pay Daman of Rs.80,000/- to the injured Zia

Ullah and Rigorous Imprisonment for one year as Tazir and in default of payment of Daman, the convict shall be kept in jail and he be dealt with in the same manner as if sentenced to Simple Imprisonment until payment of Daman.

All the sentences shall run concurrently. Benefit of section 382-B Cr.P.C is extended in favour of the appellant.

2.Facts forming the background of the instant case are that on 09.12.2012, injured/complainant Mutahir Khan son of Haji Ghulam Muhammad Khan reported the matter to the effect that after offering Maghrib prayer, he, alongwith his nephews Wisal, Atta Ullah, Zia Ullah and Basit, was sitting in the hujra of Madar Khan situated at Kuz Cham Chamtar;

that in the meantime, accused Muhib Ullah alongwith co-accused Iqbal, Noor Islam, and Khaista Khan, all duly armed with firearms, arrived at the hujra; that acting upon the instigation of co-accused Hazrat Khan, the remaining accused resorted to indiscriminate firing at them as a result of which, Wisal and

Atta Ullah sustained firearm injuries and died on the spot, whereas the complainant, alongwith Zia Ullah and Basit, received firearm injuries; that after the commission of offence, the accused decamped from the spot; that motive behind the occurrence was disclosed as a dispute over womenfolk; that the incident was witnessed not only by the complainant but also by the injured witnesses as well as Ayaz Khan son of Sarfaraz Khan and Madar Khan son of Samandar Khan; that the accused were charged for the commission of the offence hence, the instant FIR.

3.It is pertinent to mention that initially, challan under section 512 CrPC was put in court and thereafter, the prosecution witnesses were examined and the accused were declared as Proclaimed Offenders by the order of the learned Additional: Sessions Judge-VI, Mardan vide order dated 02.06.2017. After the arrest of the appellant, his supplementary challan was submitted to the court. Provisions of section 265-C CrPC were complied with and, the appellant was charge sheeted to which he pleaded not guilty and claimed trial. In order to prove its claim,

the prosecution produced and examined as many as 09 witnesses whereas, statement of PW Sher Ali SI/OII was transposed as he was dead. After closure of prosecution evidence, statement of accused was recorded under section 342 CrPC, wherein he posed innocence, however, neither he wished to be examined on Oath as required under section 340 (2) Cr.PC, nor wanted to produce evidence in defence. The learned trial Court, after full-fledged trial, convicted and sentenced the appellant vide the impugned judgment, hence, instant appeal.

4.Arguments heard and record

scanned through.

5.The tragic incident resulted in the death of two persons, while three others sustained injuries. The injured, alongwith the dead bodies, were shifted to the hospital, where the matter was reported to the police.

The injury sheets and inquest reports were prepared, and the dead bodies were sent for post-mortem examination. The injured were examined by the doctor and their medico- legal certificates were prepared. The Investigating Officer, after taking over the

investigation, visited the place of occurrence and, on the pointation of the witnesses, prepared the site plan. During inspection of the spot, blood-stained earth was recovered from the respective places where the deceased and injured had fallen. The investigating officer also succeeded and took into possession 07 empties of 7.62 bore lying scattered on the ground, while 01 empty and 01 live round of .30 bore, alongwith few spent bullets of 7.62 bore, were also taken into possession. The accused had fled from the scene, and after his arrest, he was committed to trial. It is relevant to note that the empties were sent to the Firearms Expert, who submitted his report stating that the 07 empties of 7.62 bore had been fired from different weapons, while the remaining empties and spent bullets were also fired from different weapons. Upon conclusion of the trial, the accused was convicted and sentenced vide the impugned judgment.

6.The learned Trial Court, while applying its judicial mind to the facts and circumstances of the case and upon appreciation of the evidence, held the

accused responsible for the commission of the offence and accordingly convicted and sentenced him. This Court is now called upon to examine whether the learned Trial Court was justified in holding the accused responsible, alongwith others, and whether the attending circumstances suggest his involvement in the unfortunate occurrence.

The Court is also to determine whether the complainant, who himself was injured during the same transaction, has furnished a truthful account of the incident and whether the number of accused persons has not been exaggerated. In order to properly appreciate the attending circumstances, it is essential to reconsider the entire evidence on record and re-appreciate the statements of the witnesses so as to guard against any miscarriage of justice.

7.The points for determination before this Court are as to whether the incident occurred in the mode, manner, and at the time alleged by the prosecution; whether the complainant, who is an injured eyewitness, received injuries in the same episode and actually witnessed the

occurrence; whether the medical evidence supports the prosecution version; and whether the prosecution has succeeded in bringing home the guilt to the accused through reliable evidence.

8.For a just determination, it is imperative to examine the statements of the witnesses, particularly the complainant who received injuries in the same transaction, and the eyewitness who, though not injured, claimed to have been present at the spot at the relevant time. It is noteworthy that other injured witnesses, apart from the complainant, were not produced during the trial; therefore, their statements cannot be considered. It must also be determined whether the learned Trial Court was justified in holding the accused responsible for the injuries caused to those witnesses. The complainant appeared as PW-7 and narrated the circumstances in which the incident occurred. He further stated that after receiving firearm injuries, he, alongwith the other injured and the dead bodies, was shifted to the hospital where he reported the matter to the police. The eyewitness was examined as PW-8. He

supported the statement of the complainant and explained the circumstances of the occurrence. Both witnesses were cross- examined at length on all material aspects of the case with an attempt by the defence to extract something favourable to its stance.

This Court is, therefore, inclined to examine whether the defence succeeded in creating any dents in the prosecution case. There is no dispute that the incident resulted in the death of two innocent persons and injuries to three others. However, this Court must consider whether mere number of casualties can, by itself, be treated as a circumstance to hold the accused responsible, or whether the prosecution remains under obligation to prove its case against the accused through credible and convincing evidence. Likewise, although the complainant sustained injuries in the same transaction and was the one who reported the matter, the mere fact of being injured does not automatically guarantee that his testimony is truthful. His presence at the spot is not disputed, but it remains to be examined whether the incident took place in the manner and at the time alleged by the

prosecution. To properly assess the alleged involvement of the accused, it is also essential to consider the relationship between the accused on one side, and the deceased and injured on the other. It must be examined what brought the accused together and what compelled them to resort to firing at the deceased. There is no dispute that the deceased were closely related to each other and that they also had close relations with the accused party. On one hand, the deceased and injured were not residing in the same house; they were uncles and nephews while on the other, among the accused, Iqbal and Mohibullah are real brothers; their father is Hazrat Khan; another accused, Khaista Khan (now deceased), was their maternal uncle;

and the absconding co-accused, Noor Islam, is also a close relative. This Court must examine whether all the accused shared a common object and whether a common motive existed among them. For appreciating these aspects, it is necessary to consider the time at which the occurrence took place and the manner in which the firing was carried out.

As a result of the incident, two persons lost

their lives and three others sustained firearm injuries. This Court is also to examine the relationship between the deceased and injured on one side and the accused on the other, and to determine who among the deceased and injured were the intended targets. The site plan was prepared on the pointation of the eyewitnesses. According to the site plan, the occurrence took place in front of the mosque, near or inside the Hujra of one Namdar Khan, whereas the Hujra of eyewitness Ayaz Muhammad (PW-8) is shown at a short distance from the place of occurrence. The time of occurrence is recorded as 17:20 hours, shortly after the Maghrib prayer. The Court must also examine whether the witnesses exercised due care in identifying the accused and whether there was sufficient light at the relevant time to enable such identification. There is no denial of the fact that crime empties were recovered from the place of occurrence and that blood- stained earth was collected from the respective places where the deceased and injured had fallen. It is also not disputed that the place of occurrence was common to both

parties; therefore, their presence at the spot at the stated time cannot be doubted.

According to the prosecution, after performing the Maghrib prayer, the complainant party came out of the mosque and was engaged in conversation when, in the meantime, the accused party attacked and opened indiscriminate fire at them. However, nothing has been brought on record to show what relationship the deceased and injured had with the motive or what specific interest, apart from accused Mohib, Iqbal, and Hazrat Khan, the remaining accused had in the occurrence.

On this aspect, the prosecution record is completely silent. This Court is, therefore, inclined to carefully examine the manner in which the incident occurred and the circumstances that brought the accused to the spot. During cross-examination, the witnesses were unable to satisfactorily explain the exact circumstances in which the accused arrived at the spot or what common interest all the accused had in firing at the deceased. It is also unfortunate to note that one of the injured was a minor, whereas the remaining injured witnesses had no apparent connection or

prior enmity with the accused. The witnesses could not clearly state whether the injured and deceased were the intended targets or whether the accused were actually interested in their killing. The circumstances suggest that when the deceased and injured, alongwith other residents of the locality, were dispersing after the Maghrib prayer, the accused attacked and started indiscriminate firing.

These circumstances further indicate that the number of accused might have been exaggerated. It is also notable that the accused belonged to different families, and no common motive or object was established to have brought them together to commit the offence. Consequently, the Court must examine why the incident occurred and who was, in fact, the intended target. The prosecution, from the inception of the case until the conclusion of the trial, failed to satisfactorily explain who the intended targets were. Nothing was brought on record to indicate which of the deceased or injured were specifically aimed at. In the absence of any clear explanation, the possibility cannot be ruled out that one of the victims might have

been the intended target and, in attempting to attack that person, indiscriminate firing ensued, causing the death of innocent individuals and injuries to others. In these circumstances, this Court must examine whether the learned Trial Court was justified in fixing liability upon the accused and whether the prosecution succeeded in connecting the accused to the occurrence through credible and convincing evidence.

The witnesses have also remained inconsistent regarding the exact place of occurrence. The complainant stated that the incident took place inside the Hujra of Madar Khan, whereas the eyewitness claimed that it occurred in the street in front of the mosque.

This Court must determine which of the two versions is reliable. The attending circumstances indicate that the deceased were shown standing inside the Hujra of Madar Khan, whereas the injured were shown in the street. The record further reflects the presence of Muhammad Ayaz (PW-8) at Point No. 6 in the street. The circumstances suggest that after performing Maghrib prayer, the deceased and injured came out of the

mosque and dispersed into the street, when the accused attacked and started firing.

Muhammad Ayaz (PW-8) stated that while he was inside his Hujra, he heard the sound of firing, rushed to the spot, and saw the accused firing at the deceased and injured. In his cross-examination, this witness admitted that although the accused were visible to him, he did not mention the weapons they were carrying. He stated that the firing lasted for about fifteen seconds and further explained that he was inside his Hujra approximately eight minutes before the firing. However, the circumstances render his version doubtful. If he was indeed inside his Hujra at the time of firing and came out only after hearing the shots, it would not have been possible for him to cover the distance and witness the accused firing within a span of fifteen seconds. It was he, who stated that the firing lasted for only fifteen seconds. Accepting his presence inside the Hujra at the relevant time would exclude the possibility that he actually saw the accused firing. Furthermore, if four accused were indiscriminately firing, as alleged, it is unlikely that this witness would have run

towards the firing spot, rather than remaining inside to avoid danger. His presence at Point No. 6 in the site plan does not support his claim of witnessing the firing, and the circumstances indicate that he too arrived at the spot after the incident had taken place.

When the statements of the complainant and eyewitness are read together and juxtaposed, no ambiguities emerge that both have failed to support each other on material particulars regarding the exact place of occurrence and their respective positions at the relevant time.

According to the prosecution, the incident occurred at 17:25 hours, whereas the FIR was lodged at 19:50 hours, after a delay of two hours and twenty-five minutes, despite the fact that the distance between the place of occurrence and the police station is not shown to be considerable. This unexplained delay further casts doubt on the prosecution’s version.

9.In order to appreciate how the matter was reported and how the deceased and injured were shifted to the hospital, it is essential to examine the testimony of the scribe, who appeared as PW-6. He stated that

he received information regarding the arrival of the injured and the dead bodies at the hospital at 18:30 hours. However, he reached the hospital at 19:50 hours, when the matter was formally reported to him. This statement becomes significant in understanding how the information was received, who conveyed it to the scribe, and why there was such a considerable delay in his arrival at the hospital, which was situated merely 5 kilometers from the police station. During cross-examination, the witness confirmed that he was present at the police station when the information was received. He further admitted that he, alongwith other police officials, proceeded to the hospital in a private car and that upon their arrival, the matter was officially reported. There is no dispute, and the prosecution has also admitted, that Mardan Medical Complex has its own police post, where emergency cases are ordinarily reported to the police personnel stationed there. In the present case, however, the prosecution witnesses failed to explain why the report was not lodged with the police post at the hospital and why it was deemed

necessary for the scribe to visit the hospital, which resulted in a delay of 01 hour and 15 minutes. It is also an admitted fact that the injured and deceased had already been brought to the hospital at 18:30 hours. In such circumstances, it was incumbent upon the witnesses to explain the cause of delay in reporting the matter, and upon the scribe to justify why it took him 1 hour and 15 minutes to reach a hospital only 5 kilometers away.

The circumstances suggest that the witnesses were initially uncertain regarding the involvement of the accused and inconsistent about which and how many accused were to be implicated. In view of these facts, this Court is inclined to take into account the abnormal delay in reporting the incident.

Although it is not disputed that the injured sustained injuries in the same occurrence and subsequently succumbed to them, it was for the witnesses to clearly establish the exact circumstances in which the unfortunate incident took place. In our understanding, the witnesses concealed material facts and, in fact, exaggerated the number of accused involved. It is the case of the prosecution that

during the occurrence, as many as three sustained injuries while two persons lost their lives. However, the prosecution did not take any steps to produce the injured witnesses during the trial and offered no plausible explanation for their non-production. When the injured witnesses were closely related to the complainant, and the complainant was in a position to secure their attendance, their absence becomes significant. Since these witnesses received injuries in the same transaction, it was imperative for the prosecution to produce them to substantiate its case. Their non-production, therefore, attracts an adverse inference under Article 129(g) of the Qanun-e-Shahadat Order, 1984.

In a cited judgment titled “Muhammad Ramzan vs. The State” (2025 SCMR 762), the Hon’ble Supreme Court held that where the prosecution omits to produce a material witness, particularly the owner of the premises from where the alleged recovery was effected, an adverse inference is attracted under Article 129(g) of the Qanun-e- Shahadat Order, 1984. The Apex Court observed that the deliberate withholding of

such a crucial witness gives rise to the presumption that, had he been examined, his testimony would not have supported the prosecution’s version. In arriving at this conclusion, the Court also placed reliance on its earlier judgment reported as “Mst. Saima Noreen v. The State” (2024 SCMR 1310).

10.Although the complainant himself sustained firearm injuries, apart from him no other injured witness was produced. It is settled law that mere receipt of injuries by a witness is not, by itself, sufficient to hold his testimony as truthful in its entirety. The stamp of injuries may establish his presence at the scene of occurrence at the relevant time, but it cannot automatically guarantee the truthfulness or completeness of his version. In the present case, the complainant failed to satisfactorily explain the exact circumstances in which the unfortunate incident took place, while the number of accused implicated appears to have been exaggerated. When the sole eyewitness account is in conflict with the complainant’s statement and the witnesses are found to have concealed material facts while implicating a larger number of persons

than actually involved, such conduct casts serious doubt on the veracity of the prosecution’s case. In view of the judgment of the Hon’ble Supreme Court of Pakistan rendered in the case titled “Muhammad Zaman vs. The State and others” (2014 SCMR 749), it has been held that in certain circumstances, the number of assailants is often exaggerated, and it appears that several persons are implicated merely on account of prior enmity rather than their actual involvement in the occurrence.

11.Motive, in this case, was an

essential element which the prosecution was obliged to prove. The alleged motive was an old family dispute between the parties arising from the marriage of Abdul Sattar son of Hazrat Khan with Mst. Asia Asiya Khan. The strained relationship between the spouses was said to have led to the tragic incident. It is, however, admitted that the family feud had been resolved a year prior to the occurrence through a compromise, and the lady continued to reside with Abdul Sattar. In such circumstances, it is difficult to comprehend what could have prompted Hazrat Khan, his

two sons, and their close relatives to form an unlawful assembly and launch an armed assault upon the deceased. Neither the deceased nor the injured witnesses were shown to have any direct link with the alleged motive. The prosecution also failed to establish why all the accused allegedly joined hands with Hazrat Khan and his sons to commit the offence, particularly when Abdul Sattar, the person most directly involved in the earlier dispute, did not participate in the occurrence, and the lady continued to live with him. The prosecution also could not prove what common object, if any, was shared by the alleged unlawful assembly.

When the common object is not proved, the liability of all accused for a collective act cannot be sustained. In our view, the prosecution has failed to prove motive. Where motive is the primary cause of the offence and is not proved, this failure can legitimately be taken into consideration in favour of the accused. Although absence or weakness of motive by itself may not necessarily be a ground for acquittal, it becomes relevant when motive is the linchpin of the prosecution case

and its proof is essential to establish the chain of events. In the present case, when the alleged dispute had already been resolved, and the principal figure in the dispute neither participated in the occurrence, nor bore animosity at the relevant time, the prosecution story regarding motive does not appeal to reason. The failure to prove motive, therefore, creates serious doubt about the prosecution case. In light of the judgment of the Hon’ble Supreme Court of Pakistan in the case titled “Iftikhar Hussain alias Kharoo v. The State” (2024 SCMR 1449), it was held that the motive alleged by the prosecution stood unproved, as no convincing evidence was brought on record to substantiate the claim that the accused had any reason to commit the offence. The Court observed that in the absence of any prior enmity between the accused and the complainant party, the motive set forth in the FIR could not be believed and was rightly disregarded by the High Court.

12.The medical evidence does not support the prosecution case. The manner in which the deceased sustained firearm

injuries, as well as the entry and exit points of those injuries, is inconsistent with the attending circumstances of the present case.

On one hand, the seat of injuries does not corroborate the complainant’s version of the events; while on the other, if four accused had indeed fired simultaneously with their respective weapons, multiple firearm wounds would have been expected on the bodies of both the deceased and the injured witnesses.

Furthermore, two injured witnesses were not produced, and only the complainant appeared as an injured witness. The number and nature of injuries, therefore, do not correspond with the alleged number of assailants. This inconsistency between medical evidence and ocular testimony is significant and cannot be ignored. It is settled that medical evidence is generally confirmatory in nature; however, when the ocular account is found inconsistent on essential aspects of the case, the conflict between medical and ocular evidence assumes importance and must be taken into consideration. In the case titled “Khial Muhammad v. The State” (2024 SCMR 1490), the Hon’ble Supreme Court of Pakistan

reaffirmed the settled principle that if even a single loophole or inconsistency is found in the prosecution’s case, such as a conflict between the ocular and medical evidence or doubt regarding the presence of eye- witnesses, the benefit of that doubt must necessarily be extended to the accused.

13.The ballistic report indicated that the recovered empties were fired from different weapons. However, this report is merely corroborative in nature and, in the absence of reliable ocular testimony, cannot by itself form the basis for conviction. In such a situation, circumstantial evidence may be considered if the prosecution brings forth independent and trustworthy witnesses, which it failed to do in the present case.

14.It is true that the accused remained absconding for a considerable period without offering any plausible explanation. However, mere abscondence, by itself, is not a conclusive circumstance to hold an accused guilty of the offence, particularly when the prosecution has otherwise failed to produce essential and connecting evidence.

Mere abscondence may raise suspicion, but

suspicion alone cannot take the place of proof. As held by the Hon’ble Supreme Court of Pakistan in the case titled “Muhammad Tasaweer v. Hafiz Zulkarnain and others” (PLD 2009 SC 53), mere abscondence by an accused does not by itself constitute conclusive proof of guilt. It is merely a suspicious circumstance, which, standing alone, cannot substitute for legal proof. The Court observed that abscondence may, at best, be considered a supporting piece of evidence, but its evidentiary value must be assessed in light of the overall facts and circumstances of each case.

15.The cumulative effect of what has been stated above leads this Court to an irresistible conclusion that the prosecution failed to bring home guilt against the appellant, and the learned trial Court while handing down the impugned judgment, misdirected itself both in law and on facts, so the same calls for interference. The impugned judgment is set aside, the appellant is acquitted of the charge, he shall be released forthwith, if not required to be detained in any other case.

16.Now diverting to the criminal revision No. 233-P/2024 titled “Mutahir vs Muhib Ullah & another”, which has been filed by the complainant for enhancement of the awarded sentence, as the accused succeeded in earning acquittal and the impugned judgement is set aside, so the instant criminal revision has lost its utility, the same is dismissed as such.

Above are the detailed reasons

of short order of even date.

Announced

JUDGE

JUDGE

*Muhammad Fiaz* *D.B* Hon’ble Mr. Justice Sahibzada Asadullah, J Hon’ble Mr. Justice Muhammad Ijaz Khan, J