Syed Tahir Hussain Vs Syed Shah Gul etc.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department) Cr. A. No. 1058-P/2024

Syed Tahir Hussain

Vs

Syed Shah Gul etc

Date of hearing: 02.10.2025.

Qazi Intikhab Ahmad, Advocate, for the appellant.

Mr. Ayub Zaman, AAG for the State. Mr. Kashif Hayat, Advocate, for the

JUDGMENT

SAHIBZADA ASADULLAH, J.- Through the instant criminal appeal, the appellant Syed Tahir Hussain has assailed the judgment dated 10.12.2024, rendered by the learned Additional Sessions Judge-I, Orakzai, in case arising out of FIR No.02 dated 30.01.2023, registered under Sections 302/324/337-A(i)/337-A(ii)/34 PPC r/w 15-AA registered at Police Station Kurez Boya, Orakzai. By virtue of the impugned judgment, the appellant was convicted and sentenced in the following manner:

i. Accused Syed Tahir Hussain is sentenced to life imprisonment as Ta'azeer U/S 302 (b) PPC, Further, the convict would also pay sum of Rs. 600000/- (six lacs) as compensation in terms of 544-A Cr. PC to the legal heirs of the deceased, recoverable as the arrears of land revenue. In case of default of the payment of compensation, accused shall further undergo simple imprisonment for six (06) months.

ii. He is further convicted U/S 15AA and sentenced to simple imprisonment for a term of three (03) years and fined Rs. 20000/-. The amount of fine shall be deposited in the government ex-chequer against the proper receipt, in default of which convict has to undergo further simple imprisonment for 02 months. The benefit of Section 382-B Cr. PC is extended to the accused/convict. Both the sentences shall run concurrently.”

2.The backdrop of the prosecution case, as delineated in the FIR (Ex.PA), is that the complainant, Shah Gul Hussain son of Ali Asghar, aged about 62 years, caste Bar Muhammad Khel, resident of Dago Kalay, reported the incident to the police on 30.01.2023 at about 1930 hours, in the emergency room of THQ Hospital, Kalaya. He stated that on the day

of incident, at about 1730 hours, his brother, the deceased Syed Imam Ali, was on his way to the mosque to perform prayers, while he and others were following him. When the deceased reached the place of occurrence, accused Tahir Hussain son of Syed Gul Qasim, who was already present there and armed with a firearm, opened fire at him with the intention to kill. As a result, Syed Imam Ali sustained firearm injuries and succumbed to the injuries on the spot.

Meanwhile, accused Syed Habib Hussain and Syed Qanoon Shah, both sons of Syed Gul Qasim, along with Syed Yasir son of Syed Tahir Hussain, allegedly attacked the complainant party with knives and other sharp-edged weapons.

Consequently, the complainant sustained injuries on his head, while Syed Muhammad Ameer Jan suffered injuries on his head and right hand, and Syed Muhammad Sajideen received injuries on his head and other parts of his body. Motive behind the occurrence was stated to be dispute prior altercation between the parties. He charged the accused with launching an armed assault on them and committing the murder of his brother.

Besides the complainant, the occurrence was also witnessed by Syed Muhammad Ameer Jan and Syed Muhammad Sajideen. The report was endorsed by the complainant and Syed Muhammad Sajideen through their thumb impressions on the Murasila. The investigating officer prepared the inquest report and injury sheets of the deceased and the injured, which were forwarded to the concerned medical officer through Constables Sohan Ali and Dastan Ali, respectively. The Murasila was dispatched to the Police Station through Constable Yasin Ullah, whereupon the FIR was formally registered. After receiving copy of the copy of the FIR, the Investigating Officer proceeded to the spot, where he collected blood-stained earth from the place of occurrence and took into possession two empties of 7.62mm bore, allegedly recovered from the place, where accused Tahir Hussain had been sitting, vide recovery memos attested by marginal witnesses. He also prepared the site plan of the place of occurrence (Ex.PW-6/1) on the pointation of the complainant.

3.After completion of investigation, the case file was submitted to the Station House Officer for onward submission of the complete challan to the learned trial Court. Accused Syed Tahir Hussain, being in custody, was produced from jail through Zamima Bay, whereas the remaining accused, namely Syed Habib Hussain, Syed Qanoon Shah, and juvenile accused Syed Yasir, being on bail, were summoned, they appeared before the Court. The requirements of Section 265-C, Code of Criminal Procedure, 1898, were duly complied with. A separate challan in respect of the juvenile accused, Syed Muhammad Yasir, was submitted. On 20.06.2023, charge was framed against the accused, to which they pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution examined as many as fifteen (15) witnesses. After closure of the prosecution evidence, the statements of the accused were recorded under Section 342, Cr.P.C., wherein they denied the allegations, professed innocence, and claimed false implication. However, they neither opted to appear as witnesses under

Section 340(2), Cr.P.C., nor produced any evidence in their defence. The learned trial Court, after appraisal of the evidence and hearing arguments from both sides, convicted the present appellant vide impugned judgment, whereas co- accused Syed Qanoon Shah, Syed Habib Hussain, and Syed Yasir Hussain were acquitted by extending them the benefit of doubt. Being dissatisfied with the impugned judgment, the appellant has preferred the instant criminal appeal before this Court.

4.Heard. Record perused.

5.The unfortunate incident resulted in the death of one individual and caused injuries to three others. The dead body of the deceased, along with the injured persons, was shifted to the hospital, where the matter was formally reported.

The medical officers prepared the injury sheets and the inquest report. The dead body was sent for post-mortem examination, while the injured were medically examined. After receiving copy of the FIR, the Investigating Officer visited the place of occurrence and prepared the site plan in

the presence of the witnesses. During spot inspection, blood-stained earth was collected from the places, where the deceased and the injured had fallen. He also took into possession two empties of 7.62-bore. On the very same day, the SHO of the concerned police station conducted a raid on the Hujra of the accused, where he found three accused persons present i.e.

Tahir Hussain, Syed Qanoon Shah, and Syed Muhammad Yasin. They were arrested on the spot. From the personal possession of the appellant, a Kalashnikov was recovered, which was duly sealed into a parcel. The appellant also made a report, which was entered as Naqal Mad No. 13, alleging that certain persons from the complainant’s side had caused injuries to them.

Although their injury sheets were prepared, neither the appellant nor the other injured persons pursued or adduced any evidence in support of their claim. During the pointation proceedings, the accused led the police party to the place of occurrence and identified the relevant spots. In respect of the recovered Kalashnikov, Section 15- AA was added. The sealed weapon was later

taken into custody by the Investigating Officer from the police station. The recovered empties and the Kalashnikov were sent to the firearms expert, whose report confirmed that the empties had been fired from that very weapon. During the trial, the co-accused who were facing the proceedings, were acquitted of the charge.

However, the appellant was convicted and sentenced through the impugned judgment. The learned Trial Court, while delivering the impugned judgment, examined the entire evidence available on record as well as the statements of the prosecution witnesses. Upon such appraisal, it concluded that the remaining accused were innocent, whereas the appellant alone was guilty. The task before this Court is to assess whether the learned Trial Court was justified in acquitting some of the accused and convicting the appellant on the same set of evidence, and to identify the material aspects of the case which formed the basis for such bifurcation.

6.True that the injured witnesses received injuries in the same transaction, and their

presence at the spot is not in dispute. However, the mere fact that a witness is injured is not, by itself, a sufficient ground to unreservedly accept his testimony as truthful or confidence-inspiring.

What is of paramount importance is the intrinsic worth of the statement whether the witness narrates the occurrence in a manner that reflects the whole truth. It is also true that substitution in cases of this nature is generally rare. Yet, it is equally true that this Court cannot overlook the fact that four accused were originally charged with the commission of the offence, thereby raising a legitimate question as to whether the number of accused persons was exaggerated. To prevent any miscarriage of justice, this Court considers it essential to thoroughly re-examine the statements of the witnesses and re-appreciate the entire case record.

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; as to whether the complainant was actually present at the place of occurrence and was the one who reported the matter; as to

whether the injured persons received injuries in the same episode; as to whether the counter- version furnished by the appellant provides justification or clarification regarding the manner in which the occurrence unfolded, and whether any circumstances exist that may entitle him to extraordinary relief; as to whether the medical evidence supports the prosecution’s version and whether the prosecution has succeeded in proving the charge against the appellant beyond reasonable doubt.

8.In order to properly appreciate the peculiar circumstances of the present case, this Court considers it essential to closely examine the evidence brought on record by the prosecution, the manner in which the unfortunate incident unfolded, and the statements of the witnesses produced at trial. The complainant appeared as PW-12 and the injured eyewitnesses as PW-13 and PW-14 were also examined. The complainant narrated in detail the circumstances leading to the occurrence; that how he and the injured witnesses proceeded towards the place of incident, how the deceased was walking a little ahead of them, how

he was fired at by the accused alone, and how the remaining accused overpowered the witnesses and inflicted injuries upon them with knives and daggers. He further stated that after the deceased and the injured persons received their injuries, they were shifted to the hospital, where he formally reported the matter. The eyewitnesses fully supported the version of the complainant and described the circumstances which culminated in the tragic death of the deceased and the injuries sustained by them. It is noteworthy that at the time of their arrest, the accused namely Syed Qanoon Shah, Muhammad Yasir, were themselves found to be injured. Their injury sheets were prepared prior to their arrest. They subsequently led the police party to the place of occurrence, where a pointation was conducted.

The crucial question before this Court is whether the injuries sustained by the said accused were received during the same transaction, and whether this aspect was sufficiently considered by the learned Trial Court while evaluating the prosecution case. The record reveals a degree of silence regarding the subsequent proceedings

relating to these injuries. However, the statements of the Investigating Officer and the Station House Officer, who effected the arrest, are available on record and can be relied upon to assess the involvement of both parties, to determine which side was the aggressor, and to assess whether the prosecution version suffers from exaggeration. If the incident is ultimately found to be a free fight, this Court must also determine what individual liabilities arise and upon whom such liabilities may appropriately be fixed.

9.In view of the importance of this aspect, we find it necessary to re-examine the entire case record and to reconsider the evidence collected, so that it may be clearly established who was responsible, who was not, and what degree of responsibility, if any, rests upon the appellant.

The witnesses were subjected to cross- examination on all material aspects of the case, in an effort to extract something favourable to the appellant. It therefore becomes necessary for this Court to determine whether the defence succeeded in creating any dents in the prosecution case, and whether the prosecution

withstood the rigors of such searching cross- examination. It is an admitted fact that, in the unfortunate occurrence, the deceased lost his life, while three others sustained serious injuries. They were shifted to the hospital, examined by the medical officer, and their medico-legal certificates were duly prepared. The witnesses clarified that all of them were on their way to the mosque, when the incident took place. The time of occurrence, when examined, coincides with the time of prayer, and even the counter-version filed by the appellant acknowledges his own presence and that of his companions at the spot for the same purpose. According to the appellant, he and his companions had reached the mosque, where a dispute arose regarding its ownership or control, and it was alleged that the complainant party asked them to leave the premises. In the course of this confrontation, the incident occurred. When this aspect is considered, it becomes evident that both parties admit their presence at the place of occurrence, and both agree that they had gone there for offering prayers. The defence, despite its efforts, could not escape from this admitted

position. We are, therefore, inclined to hold that both sides had reached the spot with the intention to pray. What transpired thereafter, which culminated in the tragic incident, remains concealed by both sides from the very beginning.

Neither party has been able to narrate with clarity the exact circumstances that triggered the confrontation. In such a situation, the statements of the complainant and the injured witnesses assume significance. The complainant stated that the deceased was walking ahead of them and was fired at by appellant Syed Tahir Hussain. He further explained that he and the accompanying witnesses were then assaulted and received injuries accordingly. When this aspect is examined alongside the injuries sustained by the accused, save for accused Habib, it becomes evident that both sides suffered injuries during the same transaction. The presence of injuries on both sides, mostly caused by sharp-edged weapons, strongly suggests that the occurrence was the result of a free fight between the parties.

In such circumstances, this Court has no hesitation in holding that the presence of the

appellant, the injured persons, and the eyewitnesses at the spot at the relevant time stands fully established.

10.What now requires determination is whether the omissions and concealments by both parties, each failing to disclose the injuries suffered by the other, are sufficient to discredit the prosecution witnesses in their entirety, and whether the report lodged by the appellant is capable of establishing that the fatal shot attributed to accused Ejaz (in FIR No. 13) was, in fact, the cause of death of the deceased. As that particular case did not proceed further, this Court is not inclined to rely upon it. Rather, the relevant inquiry before this Court is; when all parties were present, when a free fight admittedly took place, and when both sides suffered injuries, how did the deceased sustain the fatal firearm injury, and upon whom the criminal liability is to be fixed. It is true that, at the time of arrest, injuries were found on the accused persons, including the appellant, and their injury sheets were prepared.

However, in this case, none of the medical officers appeared to confirm that the accused,

including the appellant, had been brought before them and medically examined. The Investigating Officer and the police official who effected the arrest, however, categorically stated that the appellant and certain co-accused were arrested in an injured condition, and their injuries were duly recorded. In these circumstances, the subsequent non-examination of the doctor is not of decisive significance. Had this been a case turning purely on the question of aggressor and aggressed, the medical officer’s testimony would have been essential. But here, both parties admittedly reached the mosque for the purpose of offering prayers, and until that point neither side harboured any prior intention to inflict harm. In such a factual background, this Court is inclined to hold that the case cannot be assessed on the touchstone of determining who was the aggressor. Instead, the relevant inquiry is the purpose of their presence at the spot and the motive that triggered the unfortunate incident.

When the statements of both parties are examined, particularly the report lodged by the appellant, no ambiguity remains that both sides

were present at the place of occurrence at the relevant time, and that the incident occurred at spur of the moment. When an incident occurs spontaneously, and both sides are equally involved, the Court must then determine the individual liabilities of each accused.

11.Admittedly, both sides received injuries though none suffered firearm injuries except the deceased, while the rest appear to have received sharp-edged weapon injuries. This supports the conclusion that a free fight took place, during which the injuries on both sides were sustained.

However, when it comes to the appellant, this Court must examine his separate and independent liability. Because of the uncertainty surrounding the events and the concealment of material facts by both parties, the learned Trial Court was justified in extending the benefit of doubt to the remaining accused and acquitting them. This Court must now assess whether the Trial Court approached the matter correctly, and whether the appellant alone was rightly held responsible for the fatal injury to the deceased. The prosecution witnesses assigned the act of firing to the

appellant, and they remained consistent on this point. They explained the manner in which the appellant fired and how the deceased sustained the fatal shot. As the post-mortem indicates a single firearm entry wound, this Court must consider the intention behind his act. The question further arises whether the concealment of facts, on account of which the co-accused were acquitted, should also have been extended to the appellant. This Court is of the view that, although the incident was spontaneous and although both sides concealed material aspects of the occurrence, the prosecution could not convincingly establish the specific role or participation of the acquitted co-accused. The Trial Court, keeping in view the nature of injuries and the overall manner of the incident, rightly granted them the benefit of doubt.

12.The question now is whether the same benefit should have been extended to the appellant. Once the same set of witnesses was found unreliable regarding one group of accused, can their testimony be relied upon to fasten criminal liability upon the appellant. This Court

has already held that the incident occurred spontaneously and that both parties were involved in a free fight. In such circumstances, the duty of the Court is to determine each individual’s liability separately. In the case of the acquitted co-accused, the prosecution failed to establish which injury was caused by whom. The Trial Court, therefore, rightly held that the case against them was not proved. However, the Trial Court applied the principle of separating the grain from the chaff, when fixing liability upon the appellant. This Court finds no reason to invoke the principle of falsus in uno, falsus in omnibus, especially when the circumstances require that each accused be assessed individually.

Considering the consistent evidence regarding the appellant’s firing, the single firearm injury on the deceased, and the distinguishing features between his role and that of the acquitted co-accused, this Court is confident in holding that the appellant’s liability stands independently established, and he was rightly held responsible for the fatal act.

13.It was on the very same day that a raid was conducted at the premises of the appellant.

The appellant, along with two others, was found present there and was arrested on the spot. From his personal possession, a Kalashnikov was recovered, which was sealed into a parcel and later received by the Investigating Officer as the weapon of offence. This weapon, along with the two 7.62-bore empties collected from the place of occurrence, was subsequently sent to the firearms expert for examination. The arrest of the appellant, the recovery of the Kalashnikov from his possession, and the injuries noted on his person, all arising out of the same transaction, are the circumstances that satisfy the judicial conscience of this Court regarding his participation in the occurrence and his presence during the incident. The injuries found on the appellant were not of such a nature, as would persuade this Court that, if he fired the shot, he did so in the exercise of the right of private defence. No evidence has been brought on record showing that the deceased or any other member of the complainant party caused such injury to the appellant as could justify a defensive firing. Nor has the appellant himself taken the plea that he

fired in fear for his life. In these circumstances, although the occurrence has been held to be a free fight between the two sides, this Court is confident in holding that the appellant exceeded all the limits and fired at the deceased, causing the fatal injury.

14.The doctor who conducted the autopsy on the deceased and the doctor who examined the injured witnesses, were both examined before the Court. They explained the nature of the injuries, the timing of the examination, the estimated interval between injury and death, and the interval between death and post-mortem. The scribe appeared as PW-04 and stated that, upon receiving information, he proceeded to the hospital, where he found the dead body and the injured persons. He recorded the report made by the complainant, prepared the injury sheets, and arranged for the dead body to be sent for post- mortem and the injured for medical examination.

The marginal witness appeared as PW-05 and testified that, in his presence, the Investigating Officer recovered blood-stained earth from the respective places where the deceased and the

injured had fallen, and also collected two empties of 7.62-bore. Another marginal witness, who accompanied the Station House Officer during the raid, also appeared as PW-09 who confirmed that the Kalashnikov recovered from the appellant was sealed into a parcel in his presence, to which he stood as a witness. When the weapon and empties were sent to the firearms expert, the expert issued a report confirming that the empties had been fired from the very Kalashnikov recovered from the possession of the appellant.

When the statements of the prosecution witnesses are examined collectively, no ambiguity is left that they have remained consistent regarding the involvement of the appellant in the tragic incident. The injuries on the bodies of the injured, the recovery of the Kalashnikov, the matching empties, and the medical evidence collectively affirm that it was the firing by the appellant that caused the death of the deceased. Although some of the co-accused have been acquitted, that factor alone cannot determine the fate of the appellant.

This Court must consider whether the role attributed to the appellant is distinct and whether

his individual liability has been established.

While the presence of the prosecution witnesses at the scene is not to be disbelieved, the learned Trial Court acquitted the co-accused only on account of uncertainty regarding the source of the injuries and the inability of the prosecution to specify which blow was delivered by which accused. That uncertainty, arising from the nature of the scuffle, could justify their acquittal.

However, the same reasoning cannot be applied to the appellant. His case stands on a clearly distinguishable footing, supported by direct and consistent testimony, recovery of the weapon of offence, matching empties, and evidence of his presence and participation. Accordingly, the appellant’s culpability is independently established. True that the laboratory report is supportive in nature, but equally true that the same can be taken into consideration in support of the eye witness account. Reliance is placed on the judgment reported in Muhammad Hanif vs the State (2023 SCMR 2016).

15.The medical evidence fully supports the case of the prosecution. The deceased,

sustained a single firearm injury, and the appellant stands charged for causing that very injury. Two empties were recovered from the spot. The injury received by the deceased was conclusively confirmed by the medical expert to be a firearm injury, and for this occurrence the appellant is specifically charged. Thus, the medical evidence is in complete harmony with the ocular account regarding the involvement of the appellant in the unfortunate incident. Despite strenuous efforts by the defence, the prosecution witnesses, particularly the complainant and the doctor, remained firm and could not be shaken on the material points relating to the injury inflicted and the manner in which the deceased received it.

When the medical account corroborates the ocular testimony, both as to the nature of the injury and the role of the accused in causing it, no ambiguity is left that the prosecution has succeeded in proving its case against the appellant. As in this particular case both the medical and ocular account is in harmony, so nothing is left for this Court to determine otherwise. Reliance is placed in case titled

“Sharfuddin alias Sharfu and another Vs. The State” (2022 YLR 324).

16.As regards motive, the prosecution attributed the incident to a sudden altercation between the parties. Although the complainant did not explicitly narrate the motive in the same terms, as the appellant did in his own counter- report, later recorded in the daily diary, the overall attending circumstances, leave no doubt that the occurrence was not premeditated. Rather, it was the sudden flare-up arising out of a timely altercation which escalated into a free fight. In that melee, each accused is stated to have played his respective role, and the appellant’s act of firing resulted in the fatal injury to the deceased.

Therefore, any weakness or absence of motive cannot be treated as a ground for the acquittal of the appellant. In the facts of this case, the true determining factors are the admitted presence of the parties, the sudden altercation, and the ensuing free fight. These very circumstances also weighed with the learned Trial Court in awarding the appellant a lesser sentence instead of the normal penalty of death.

17.The positive laboratory report constitutes yet another circumstance which this Court is inclined to take into consideration. Neither the safe custody of the recovered weapon, nor the manner in which the appellant was arrested and the weapon recovered, has been successfully disputed. It is of significance that the SHO, upon raiding the premises, recovered the weapon from the possession of the appellant. The weapon was duly sealed at the spot, thereafter handed over to the Investigating Officer, who sent it, along with the recovered empties, to the firearms expert. The prosecution has satisfactorily established not only the safe custody of the weapon, but also its secure transmission to the laboratory. The witnesses examined at trial convincingly described the manner of recovery, the manner in which it was taken into possession, and the procedure through which it was dispatched to the firearms expert.

True that the laboratory report is a piece of circumstantial evidence, which can be relied upon only, when the prosecution otherwise produces independent and reliable evidence in support of its case. However, as the prosecution has

succeeded in placing on record convincing evidence regarding the involvement of the appellant in the tragic death of the deceased, this circumstantial evidence can safely be taken into consideration.

18.The cumulative effect of the discussion made above, leads this Court to an irresistible conclusion that the prosecution has successfully proved its case against the appellant. The learned Trial Court has correctly appreciated the evidence available on record. The impugned judgment is in accordance with law, contains sound reasoning, and appropriately records the basis, on which some accused were acquitted, while the appellant was convicted. It, therefore, calls for no interference. Resultantly, the instant criminal appeal is devoid of merit and is hereby dismissed.

Announced.

*Ihsan* JUDGE

JUDGE

(DB)Mr. Justice Sahibzada Asadullah & Mr. Justice Kamran Hayat Miankhel