Muhammad Umar Vs The State etc

Judgment Sheet

(Judicial Department)

Cr. A No.414-B of 2023.

Muhammad Umar Vs.

The State etc

TUDGMENT

For Appellant: Mr. Iftikhar Durrani" Advocate For Respondents: Mr. Muhammad Saleem Awan. Advocate For State: Mr. Abdul Waheed Khattak. AAG.

Date of hearing: 09.9.2025

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ABD(IL FAYAZ. J.- The appellant; Muhammad Umar has called in question the judgment dated 15.11 .2023, rendered by learned Additional Sessions Judge-IV, Lakki Marwat, whereby the appetlant was convicted under section 302(b) P.P.C. and sentenced to imprisonment for life with fine of Rs.3,00,000/- (three lac) as compensation to the legal heirs of the deceased in terms of section 544-A Cr.P.C, or in default thereof to further undergo six months simple imprisonment. Benefit of section 382-B Cr.P.C was extended in favour of convict/appellant.

2.Complainant Muhammad Ayaz moved criminal revision petition No.76-812023 for enhancement of sentence of appellant Muhammad Umar and Cr.A No.433-B 12023 against acquittal of accused Noor Janan. Since all the three matters

have arisen out of the same judgment, therefore, we intend to decide the same through this common judgment.

3.Brief facts of the prosecution case, as per contents of F.I.R , are that, on 13.03.2015 at 10:30 hours, the complainant Muhamm ad Ayaz along with dead body of his cousin Gul Marjan lodged report at emergency room City Hospital Lakki to the effect that on the eventful day at about 09:30 hours complainant along with his brother Ismail and cousin Gul Marjan were busy in repairing roof of the room of his house when from vacant plot outside of their house, Muhammad and Noor Janan sons of Sher Gul, co-villagers shouted at them to come out of the house. The complainant patty raised their heads and saw both the accused standing with deadly weapons. The Y accused Noor Janan commanded his brother Muhammad to kill them, and both the accused started firing at the complainant party with the intention to commit their murder. From the firing of accused Muhammad, Gul Marjan got hit and fell down while complainant and his brother put their heads down and escaped unhurt luckily. When complainantparty attended injured he had expired on the spot. Motive for the occurrerice was described as dispute over womenfolk. Hence the ibid FIR.

4.After completion of investigation, prosecution submitted challan u/s 512 Cr.P.C against both the accused, as they were absconding at that time. Thereafter on alrest of the accused,

n prosecution submitted supplementary challan against them, where at the commencement of trial, the prosecution produced and examined as many as 12 witnesses.

5.After registration of the FIR, Abdur Rahim SI (PW-12) proceeded to the spot where he prepared the site plan (EX.PB) at the instance of complainant and PW Ismail. During spot inspection vide recovery memo (Ex.PWl2/l) he took into possession blood stained mud. Vide recovery memo Ex.PW12l2 he also took into possession 16 crime empties of 7.62bore (Ex.P-1) from the place of accused. He also extracted photographs of the site of occurrence and different kinds of $ recoveries which are Ex.PWlZl3 to Ex.PWl2/10. He recorded the statements of PWs. He also conducted house search of the accused but neither he found accused nor any other incriminating articles during search of accused was recovered.

He also prepared list of L.Rs of deceased Ex.PWlZllL After return to PS from spot inspection, he handed over the entire case property for onwards transmission to the FSL to Moharrir of the PS. on 24.3.2015 he applied to the competent court for issuance of warrants under section 204 cr.p.c against the

,.r\ accused vide his application Ex.PWlz/1rz and subsequently on 26.3.20L5 he also applied for proclamation notices vide his application Ex.PWlzlt3. He also recorded statement of DFC The FSL reports were recovered in PS and he placed it on file which are Ex.PK and Ex.PIVl respectively.

6.Having found the accused involved during investigation, the Investigating Offrcer prepared report under section 173, Cr.P.C. and sent the same to the court of competent jurisdiction.

On 12.02.2014, the leamed trial court formally indicted the appellantiaccused, to which they pleaded not guilty and claimed trial

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7.Ocular account of occurrence in this case has come out from the statements of Muhammad Ayaz (Pw-l0ycomplainant, eye-witness namely Muhammad Ismail (PW-11), which is reproduced as under:

"PW-10 Statement of Muhammad Ayaz s/o Dur Muhammad aged 36137 years R/o Wanda Amir District Lakki Marwat on oath.

Stated that deceased Gul Marjan s/o Alaf Jan was my cousin. Accused Muhammad Umar and Noor Janan sons of Sher Gul r/o Wanda Amir

are my co-villagers. On l3l}3l2}l5 I along with my brother Ismail Khan and my cousin Gul Marjan were repairing the roof of small room of our house' it was 09:30 AM when accused Muhammad Umar and Noor Janan sons of Sher Gul called us from a

vacant plot and asked us to come out' When we raised our heads, we saw both the accused mentioned above armed with firearms' Accused Noor Janan ordered his brother Muhammad Umar to kill us and on his order both the accused started firing on us with intent to commit our qatl-e-amd' From the firing of accused Muhammad Umar my cousin Gul Marjan got hit and fell down whereas I and PW Ismail saved ourselves by bowing down our heads from indiscriminate firing of the accused. After the occurrence accused fled away from the spot. When we attended Gul Marjan, he t had succumbed to the injuries. I brought the dead body of deceased to city hospital, lakki Marwat where my report was taken down in the shape of murasila. It was read over to me and after admitting it correct, I thumb impressed the same as a token of its correctress. I charge the accused for commission of offence. Previous dispute over womenfolk served as motive for the occulrence. On 13.03 .201,5I and PW Ismail Khan pointed out the place of occurrence to the I.O who prepared the site plan at our instance. I am marginal witness to the recovery memo vide which the I.O during spot inspection and in our presence took into possession blood stained mud from the place of deceased and sealed the same into parcel No.l. To this effect a

n reverie memo was prepared which bears my correct thumb impression as one of the marginal witness. Likewise, during spot inspection and in

my presence the I.O also took into possession 16 crime empties shells of 7.62 bore which were lying near the places of accused Muhammad Umar and Noor Janan and after signing each one with pointed articles those were sealed into parcel No'2' To this effect another recovery memo was prepared which is correct and correctly bear my thumb impression. I have also recorded my statement to the I.O.

XX.....I am laborer by profession' I do labour at my village. We are five brothers i'e' Muhammad Ayaz, Muhammad Ismail, Muhammad Iqbal, MuhammadZahid and Muhammad Shafiq and we reside jointly in one and the same house. There are 08 rooms on one side of the courtyard of my house $ which are our ownership whereas six rooms are on the other side of the courtyard of our house which are the ownership of my uncle Atf Jan. Some of my rooms are situated towards the westem side of the courtyard and my room on which the occurrence has taken place is situated towards the eastern side of the courtyard. Two rooms including the room on which the occurrence has taken place are situated towards the eastem side and rest of the rooms of ours are situated towards the western side of the courtyard. My house is situated in the neighbor of accused Muhammad Umar house intervened only by the vacant plot of Muhammad

l\ Azim.Adjacent to our house towards east there are Shisham ukliputs and trees would be equal to the height of the roof of a room. We and the accused have got a common mosque but we do not use a joint chowk as we and the accused have got separate baitaks. The deceased was a meson whereas neither me nor PW Ismail are mesons' The mud and mire (gara) was prepared for mud plastering towards the southern side of the room at which the occurrence had taken place' As the house was full of womenfolk therefore, I had not shown the place where the mud was prepared for plastering to the I.O. The place where I had fixed ladder for climbing the room for construction work was also not shown by me to the I'O' I had shown the place where mud was prepared for plastering and where the ladder was lying to the I'O and I had t taken the I.O inside my house to the place of occurrence. The mud was being handed over to me by PW Ismail and I was receiving the mud pot from PW Ismail and further put it before the Gul Marjan deceased by me. The witness volunteered that Ismail produced l7ll8 pots of mud which were received by me from him and after this he also climbed towards us to the roof of the room which was under repair and Gul Marjan was then to plaster the roof top through th. mud produced before him by me and Ismail PW. We had started repair work at 09:00 AM and we were to repair the whole roof of the room. The witness volunteered that we had yet plastered half of the roof but during this time the occurrence took place. When I

l\ ca.me back to house, the tools, with the help of which the deceased was making plaster and through which the mud was being put before him' were found absent and I have not produced the same due to the reason before the I'O' As I am not

acquainted with the types of weapons, therefore, I attributed only firearms to the accused without any further specification. My statement was recorded by the I.O on the spot. The site plan was correctly prepared at my instance by the I.O' At the time of spot inspection, I had not stated to the I'O that I was informed about the kind of weapon by my brother PW Ismail. We were commanded by the accused to come out and then we raised our heads towards them. We were looking towards the accused when accused Noor Janan ordered his s brother Muhammad to shoot and on this Muhammad Umar made fire and Noor Janan also made firing upon us with the fire shot of Muhammad deceased Gul Marjan got hit. I have gone through the contents of FIR which has correctly been recorded as per my verbatim. It is correctly recorded in my report that Noor Janan ordered his brother Muhammad to shoot and on his ordered both of the accused started firing upon us and with the fire shot of Muhammad, Gul Marjan got hit and died. Firstly, accused Muhammad made firing with which Gul Marjan got hit, followed by the firing of accused Noor Janan. At this moment the PW was confronted with his murasila report and his 161 version in shape of site plan where the above mentioned stance regarding the first attempt

made by accused Muhammad Umar is omitted' It is incorrect to suggest that as I was not present on the spot, therefore, I miserably failed to give plausible stance of the firing made by accused(s)' Deceased Gut Marjan did not fall towards the wet mud plaster side rather towards the dry side of the roof top. Deceased was brought down from the roof top by PW Ismail and me. The deceased was put in a chadar by me and PW Ismail on the roof top and then one side of the chadar was taken by me and the other by PW Ismail and in this way we handed over the chadar of dead body to the other peoples who were standing beneath to the roof top and they took hold of the chadar in which the dead body was lying. The other people who had taken hold of the chadar were our mahaladar but I cannot give the name of anyone of them due to lapse of { time. The hands and garments of mine and those of PW Ismail were not yet smeared with blood of deceased though the blood was oozing out of the wounds of deceased. The chadar in which the dead body was brought from the roof top was also not produced before the I.O by me due to the reason as it had become missing when we came back from the hospital. When accused Noor Janan commanded his brother Muhammad Umar to shoot, then Muhammad made fire with which deceased got hit and then accused Noor Janan made fire upon us meaning thereby till the start and completion of these above stated episodes we were looking towards the accused and after this we owed our heads. The height of the roof top of the

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room of the venue of occurrence would be about l2ll3 feet anyhow its height was less then the other roofs of the rooms of the house' I am acquainted with the Urdu word lipai' I had correctly stated at the time of spot inspection to the I.O that I was busy on the roof top in lipai' lt is incorrect to suggest that I am blowing hot and cold in the same breath. It is also incorrect to suggest that as I was not present on the spot, therefore, cannot justiff my presence on the spot through any physical circumstances. I reached to the hospital at about 10:30 AM. The deceased had succumbed to the injuries on the spot. I did not take the dead body to the PS rather I proceeded to the hospital because of the fact that a report can also be lodged there at emergency of the hospital. I have never remained in police department. Prior to the instant Y occuffence we have never remained indulged in criminal enmities. I called the Datsor/pick up of an IDP who was Wazir by caste. It is incorrect to suggest that I have given a purposely false version in this respect so that the driver could not be got examined under section 540 Cr.P.C. Though the above said driver was residing in our village but I cannot say that in whose house he was residing during those days. It is incorrect to suggest that I have given a false evidence in the instant case.

"PW-l1 Statement of Muhammad Ismail Khan s/o Dur Muhammad aged about 34135 years R/o Wanda Amir District Lakki Marwat, on oath.

Stated that on 13.03.2015 I along with my brother

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i\ Muhammad Ayazand my cousin Gul Marjan were repairing (./S) of the roof of small room of our house. It was 09:30 AM when accused Muhammad Umar and Noor Janan sons of Sher Gul called us from a vacant plot and asked us to come out. When we raised our heads, we saw, both the accused mentioned above armed with Kalashnikovs' Accused Noor Janan ordered his brother Muhammad Umar to kill us and on his order both the accused mentioned above started firing on us with intent to commit our qatl-e-amd. From the firing of accused Muhammad Umar my cousin Gul Marjan got hit and fell down whereas I and PW Ismail served ourselves by bowing down our heads from indiscriminate firing of the accused. After the occuffence accused fled away from the spot. When we attended Gul Marjan, he had succumbed to the injuries. I charge the accused for commissions of { offence. Previous dispute over womenfolk served as motive for the occulrence. I and PW Muhammad Ayaz pointed out the place of occurrence to the I.O who prepared the site plan at our instance. I have recorded my statement to the r.o.

XX.......Only deceased was making lipai i.e. mud plastering and PW Muhammad Ayaz was not making mud plaster. The witness volunteered that I was giving mud from the ground to PW Muhammad Ayaz and he was putting the mud before deceased for plastering. First fire shot was made by accused Muhammad. My statement was

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recorded by I.O. At that time I had also stated to the I.O that first fire shot was made by accused Muhammad Umar. The witness was confronted with his 161 Cr.P.C statement wherein first fire shot is not attributed to accused Muhammad Umar rather firing of both the accused is mentioned' At the time of recording of my 161 statement I had attributed fire shot to accused Muhammad and the second shot immediately fired by accused Noor Janan. The deceased had fallen towards the dry portion of the roof after getting hit. When accused Noor Janan was making fire shot prior to this deceased had got hit with the fire shot of accused Muhammad Umar. It is incorrectly recorded at point No.5 of the site plan per my verbatim that from point No.5 of the site plan accused Noor Janan being armed with Kalashnikov commanded co-accused Muhammad Umar to shoot and after this accused Noor Janan made firing upon PW Gul Marjan, complainant Muhammad Ayaz and me (PW Ismait) with the intention to commit our murders. The empty shells 16 in number were recovered near the places ofaccused. I have never been to the hospital the dead body was taken down by me and complainant with the help of other mohaladar and out of them one was Master Kalim Ullah. I did not care as to whether my hands or garments were smeared with the deceased of blood or not. The hands of Muhammad Ayaz might be smeared with blood of deceased. The garments of PW Muhammad Ayazwould of course would have been smeared with the blood of deceased as he was

^ hotding the chadar towards the head of the deceased. It is incorrect to suggest that I was not present on the spot. It is further incorrect to suggest that I have given a false evidence' Dr. Ghulam Ali, Medical Officer, DHQ Hospital Bannu (PW-5), conducted autopsy on the dead body of the deceased-Gul Marjan on 13'3'2015 at I 1.40 AM and found the following:- External appearance.

Young man wearing Qamiz, shalwar Banyan. Postmortem staining developed.

Condition of subiect: Rigor mortis not developed.

Wounds.

l- One entrance wound of firearm on the medial side of left side with base of nose size 1/3x1/3 inch cavitY deeP.

Internal Examination.

Skull fractured. Scalp fractured. Membranes, brain injured.

THORAX

Normal

ABDOMEN

Healthy

Opinion.

In his opinion the death occurred due to irjury to vital centers in brain causing dyffinction of respiratory and cardiac centers and system causing death.

Probable time between injury &

death. . . . . .Instantaneous.

Probable time between death & P.M 02 to 05 hours.

After P.M examination the doctor handed over the inj.ry sheet, inquest report and PM papers to the relevant police officials. His PM report along with pictorial consisting of six sheets is Ex.PW-5/1. Likewise the injury sheet and inquest report also bears his correct endorsements which are Ex.PWS/ 2 and Ex.PW5/3 respectively.

XX.......Entrance wound with corresponding exit are parallel to each other. The dead body of the deceased would have been brought some t5120 minutes prior to the conduct of PM examination and I have conducted PM examination at Ll:40 AM. In the column of death, the time of arrival of the dead body to the hospital is mentioned along with date as " on 13.1312015 at 11:40 AM". I have not handed over the garments of deceased to the police constable.

The statements of remaining prosecution witnesses are formal in nature.

8.On close of prosecution evidence, statements of accused were recorded under section 342 Cr.P.C, wherein they professed innocence and false imptication, however, neither they opted to be examined on oath as provided under section 340(2) Cr.P.C, nor wished to produce defence evidence. After hearing arguments, the learned trial Court vide impugned judgment dated 15.11 .2023, convicted and sentenced the accused /appellant Muhammad Umar as mentioned above while accused Noor Janan was acquitted, hence, the instant appeals and revision against the judgment of conviction' g. We have heard learned counsel for the parties alongwith learned A.A.G for the State at length and with their valuable assistance, the record was gone through.

10.The first thing which adversely affects the prosecution's case regarding the ocular account, which is in conflict with the medical evidence. If we see the statement of Doctor/PW-05, who has stated that there was one entry wound of firearm on the medial side of left side with base of nose size ll3xl/3 inch cavity deep with another exit wound of fire arm on the back of head with brain matter coming out size 4x5 inch, which reflects that the entry wound was colresponding to a large exit wound on the back of head, which shows otherwise through and through. Here the medical evidence contradicts the ocular

account for the simple reason that the accused both in number hand have been shown at points No.4 and 5 while on the other the deceased and eye witnesses have been shown at rooftop, is where they were busy in mud plaster of the rooftop. Reliance placed on case titled "Saiid Hussain and another Vs. The State and others (2024 YLR 1349). wherein the Hon'ble Lahore High court (Multan Bench) has held as under:

"....... The other related sign could be the tangential entry wound with local avulsion of tissue and bone which could happen in close range fire when assailant is taller than the victim or if he fires with pointed pistol up into down. If it be considered in this case then assailant must have been in a close range of 1- 2 feet because doctor has observed the tattooing but while scanning the evidence we have observed that witnesses deposed the inter se distance between appellant and victim as 5 feet, and the same distance is mentioned in the site plan; therefore, such type of wound description is not possible from 5 feet when doctor has also observed the abraded collar at entry wound. So, there is serious conflict in medical and ocular account which shows that occurrence was not commiued in the manner as being claimed by the prosecution. This contradiction is fatal to the prosecution. Reliance is placed on case reported as "Muhammad Idrees and another v. The State and others" (2021 SCMR 612) and such

contradiction also leads us to draw an inference that as a matter of fact the prosecution witnesses were not truthful in their stance and were not present at the place of occurrence at the relevant time and had not witnessed the occurence. Reliance in this regard is placed on the cases "Muhammad Ashraf alias Acchu v. The State" (2019 SCMR 652) and "Zafat v. The State and others" (2018 SCMR 326)."

Similarly, in case titled "Nasir and others Vs. The State and others,, (2025 P.Cr.L.J 168). this court has held as under:

"12. The medical evidence is in conflict with the eye-witness account, as on one hand the deceased received single firearm injury with the dimension of .5x.5 cm, with its exit as lxl cm each, which suggests that the f same was the doing of one person, that too, with one weapon. The seat of injury on one of the deceased is on lateral aspect of the thigh which further contradicts the stance of the witnesses, as the witnesses disclosed that they were proceeding towards north, when the accused / appellants attracted to the spot from the northern side and started firing at them, then in that eventuality, the deceased would have received an entry wound on the front of his thigh, which funher belied the stance of the witnesses. True that medical evidence is confirmatory in nature and in case of confidence inspiring eye-witness

account, the same plays a little role to upset the prosecution case, but equally true that when the prosecution case is suffering from inherent defects, then in that eventuality, the medical evidence gains much importance, which, under no circumstances, can be ignored. The dimensions of injuries and the number of accused charged has Put a question mark over the integrity/veracity of the witnesses and this particular aspect of the case creePs down to the root' Furthermore, the net has been thrown wide and all the active male members of the family have been enroped, that too, for two injuries caused having the same dimension' Wisdom could also be derived from the judgment of this Court reported as 2014 $ MLD 446 Peshawar "Amir v. The State" where the factum of commission of offence being an act not commensurating with the number of accused charged was considered against the prosecution. There is no denial of the fact that when Court comes to a conclusion that the number of accused has been exaggerated, then extra care and caution is required to be taken while appraising the evidence."

11.Now we again reproduce in this case the contents of the FIR herein below:

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Thus it reflects that when the deceased and the two eye wifiresses were on the rooftop and they were supposed to have asked them to come down to discuss the matter. Here in the

initial report he stated that they have asked them to come out (Jft ),1.)

12.Moreover, it is in the evidence of complainant/PW-l0 and the there were trees in between the place of the deceased place of two accused, which is impossible for a common man to

identiff that whose fire-shot proved effective'

13.Another aspect of the case is that the complainant and the eye witnesses have improved their statements. It is in the statements of eye witnesses that first fire was made by appellant Muhammad Umar, followed by co-accused Noor Janan while in the FIR it is recorded that:

L$ ,,f ; dtl ctV t),1 c)f <-otNAl 6,, /rtt /ct'/ L ( -fi t*$:ut /1 t a'1t

Z-,{rf t-f tli,,tr!

Thus the same statement has not been recorded in their Court deposition, hence they have improved their statements purposely so that to prove the charge against the accused.

14.Apart from this aspect of the case when the deceased and the eye witnesses were working and were busy in mud plaster over the rooftop and were visible to them then there was no need to call upon them by the accused party for the reason that they wanted to kill them. Even otherwise it is illogical when the accused have been shown in an open plot covered by a boundary wall to have come to the place of occurrence for

discussion over women dispute then they would certainly come to the main door side which is reflected from the record towards western side of the site plan indicating the house of the complainant then there was no need for the accused to have come to the open plot and have asked the deceased and eye wibresses to come out which otherwise reflects about the genuineness of the prosecution story.

15.Apart from this fact when the prime target of the accused was to kitl the deceased then astonishingly how there was shown the number of bullet marks in the site plan at points "B" and "C"

16.Now coming to the other aspect of the case, in this case it is the version of the complainant that they were busy in mud plaster of the complainant's house then admittedly for mud plaster the meson use to plaster the said rooftop with the help of Girmala (wooden trowel), which has neither been recovered from the place of Wardat nor has been handed over by the complainant to the investigating officer.

17.Another aspect of the case which adversely effects the prosecution story is that admittedly the deceased and the eye wihesses were busy in mud plaster then at least there should have been some mud over their feet but neither the deceased nor the eye witnesses having the szrme stained of mud. The complainant further stated in his cross-examination that they

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with the help of a chaddar brought down the dead body from the rooftop to the courtyard but neither the said Chaddar nor the said ladder nor the garments of the eye witnesses were taken by

the investigating officer, which adversely effects the prosecution story that the occulrence has not taken place in the mode and manner as narrated by the prosecution and the complainant and eye witness were not present on the spot.

18.The deceased was the first cousin of the complainant and that of the eye witness. Admittedly, the house of the complainant Muhamm ad Ayaz was made of mud. We have observed on the record photographs Ex.PW5l6 to Ex.PW5/8, wherein wall has been shown which is made of bricks and has dots of bullet marks, which makes the case of prosecution doubtful and reflects that the occurrence was the result of cross firing or that the occurrence has not been taken place in the mode and manner as nalrated by the witnesses.

19.It is also the version of the complainant that both the accused have made firing. No doubt the effective shot has been attributed to the present appellant Muhammad Umar but when the 16 empties of 7 .62 bore were shown recovered, it transpired through FSL that the same were fired from one and the same 7.62 borc weapon. Yet another aspect of the case is that the deceased was died there and then on the spot, which apparently supposed to have been shifted to the police station Lakki but

instead the dead body of the deceased has been shifted to hospital. We have also observed the time of death i.e.

13.03.2015 at about 09:30 hours while report recorded in the hospital at about 10:30 a.m. The police station and the hospital are almost close to each other and when observed the column of the FIR No.198 the house of the complainant has been shown at a distance of 16117 kilometers from the police station Lakki Marwat. Thus the report was recorded in the hospital instead of police station at 10:30 a.m.

20.Admittedly, the place of occurrence i.e. the rooftop of the house of the complainant having no boundary walls so there was no reason for the accused to have made firing from the open plot, if they had the intention to kill the deceased they Y could have easily made firing from their houses as according to the site plan the house of acquitted co-accused Noor Janan and appellant Muhammad Umar are adjacent to each other and are close to rooftop where the deceased was hit. We have also observed from the cross-examination and the site plan that at the time of firing it was impossible for the complainant and the eye witness to identifr that whose shot hit ttre deceased for the reason as brought out from the mouth of PWl0/complainant in his cross examination, which is hereby reproduced:

"Adjacent to our house towards east there are Shisham, ukliputs and Barry trees like an orchard of the trees. The

height of aforementioned trees would be equal to the height of the roof of a room."

trees then it Thus it means that when there was an orchard of witness to was impossible for the complainant and Pw-l Lleye have identified that whose shot hit the deceased.

21.It is also on the record and as admitted by PW-10 in cross-examination, which is hereby produced:

"'We and the accused have got a common mosque but we do not use a joint chowk (hujra/baitak) as we and the accused have got separate baitaks'"

If the accused were interested in killing the deceased, then they could have easily killed him at the time of praying in the mosque or on way to the mosque or on way back to the house.

Therefore, mode and manner in which the alleged occurrence has been shown to have been taken place does not appeal to a prudent mind. Thus it further confirms that occuffence has not taken place in the mode and manner and the actual mode and manner has been concealed by the complainant party, which adversely effect the prosecution story.

22.The above discussion lead us to the conclusion that prosecution has filed to prove the charge against the appellant as it apparently seems that the occurrence has not taken place in the mode and manner as manured by the complainant, no doubt the place of occurrence is house of the complainant party but

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their presence is adversely effected by the circumstantial evidence as neither their hands nor their feet nor their clothes were stained with blood or with the mud prepared for the plaster by them. Reliance in this regard is place on case !!!!9 wherein the apex Court has held as under:

17.The two eye-witnesses not being independent and natural witnesses of the occurrence; infirmities having been found in the prosecution case and doubts having crept into the prosecution version of the occurrence; the possibility of occurrence having gone un-witnessed and no independent corroboration being available in support of the ocular testimony, it cannot be said that the prosecution had succeeded in { proving the guilt of the two convicts beyond all reasonable doubts.

Similarly, in case title "Khalil-ur-Rahman and another Vs.

The State and another" (2019 YLR 2553). this Court has observed that:

1 1. Despite firing by all the five accused with sophisticated weapons, the complainant Bahadar Sher and PW Hamayun did not receive a single firearm or lacerated injury. During spot inspection, the I.O. recovered five empties of 7.62bore from points Nos. 6, 7, and 8 assigned to accused namely Farman,

A

Khalil-ur-Rehman, and Burhan while from points Nos.4 and 5 three empties of 7.62 bore were shown to have been recovered from the places of accused 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 occulrence appears to have been suppressed. The charge appears to have been exaggerated and the net has been thrown wide by implicating five persons without assigning any specific role to any of them, possibility of false implication could not be ruled out.

23.The cumulative effect of what has been stated above, leads this court nowhere but to hotd that the prosecution failed to bring home guilt against the appellant and the impugned judgment is suffering from inherent defects and is lacking reasons, which calls for interference. The instant criminal appeal is allowed, the impugned judgment is set aside, and the convict appellant is acquitted of the charges. He be released forthwith, if not required to be detained in connection with any other criminal case. As the criminal appeal against conviction is allowed, and the impugned judgment is set aside then in such eventuality to proceed funher with the connected Criminal

A

revision petition No.76-B of 2023 and Cr.A No.433-B of 2023 will be nothing more but a futile exercise, which have lost its utitity and are herebY dismissed.

Announced

09.9.2025 4L

Ihsan'

(D,B)

Hon'ble Mr. tustice Muhammad Toriq Alridi & Hon'ble Mr. tustice Abdul FoYaz.

I

t