Tariq Vs Khitab Gul & another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 721-P/2025

Tariq Vs Khitab Gul & another

JUDGMENT

Date of hearing: 12.01.2026

Appellant by: Mr. Shabbir Hussain Gigyani, Advocate.

The State by: Mr. Abdur Rauf Afridi, Addl.

AG.

Respondent/complainant by Barrister Amir Khan Chamkani and Mr. Asif Sabir, Advocate.

SAHIBZADA ASADULLAH, J.- Through this single judgment, this court is intending to decide the instant appeal and the connected Cr.A No.

810-P/2025 titled “Khitab Gul vs Shahid Khan & another” as well as the connected Criminal Revision No. 189-P/2025 titled “Khitab Gul vs Tariq & another” as all the matters are arising out of one and the same judgment dated 15.07.2025 passed by the learned

Additional Sessions Judge-XXI, Peshawar delivered in case FIR No. 1016 dated 19.11.2016 under sections 324/336/337-F(ii)/34 PPC of Police Station Mathra, Peshawar whereby respondent/accused Shahid Khan was acquitted of the charge while the appellant Tariq was convicted and sentenced as under:

i. Under section 324 PPC to suffer simple imprisonment for seven (07) years as Tazir and also to pay compensation of Rs. 2,00,000/- (Two lac Rupees) to the complainant under section 544-A CrPC recoverable as arrears of land revenue and in default whereof, to further undergo imprisonment for six (06) months.

ii. Under Section 336 PPC to suffer simple imprisonment for five (05) years as Tazir and to pay Arsh equal to Diyat to the complainant. The convict is at liberty to pay the Arsh either in lump sum or in equal installments over a period of five years from the date of the judgment and in default whereof, the convict be kept in Jail till the payment is made.

iii. Under Section 337-F(ii) PPC to suffer simple imprisonment for three (03) years as Tazir and to pay Daman of Rs.50000/- to the complainant. The convict is at liberty to pay the Daman either in lump sum or equal installments spread over a period of three years from the date of this judgment and in default whereof, the convict be kept in Jail till the payment is made.

The sentences of imprisonments shall run concurrently. Benefit of section 382-B Cr.P.C is also extended to the convict.

2.As per the contents of the murasila, on 19.11.2016, complainant Khitab Gul reported the matter in LRH, Peshawar to the effect that he was present at the place of occurrence, when due to previous enmity, accused Tariq and Shahid Khan came on without number motorcycle and on seeing him they started firing at him, as a result of which he received injuries on right side neck and left shoulder; that the occurrence was witnessed by other person present on the spot; that the accused were

charged for the commission of the offence hence, the present FIR.

3.The injured, having sustained

firearm injuries of sufficient severity, was immediately shifted to the hospital, whereupon the matter was promptly reported. The injury sheet was prepared and the injured was referred to the medical officer for examination. Upon receipt of copy of the FIR, the Investigating Officer visited the place of occurrence and, on the pointation of the eyewitness, prepared the site plan. During spot inspection, blood stained earth was secured from the spot alongwith 06 empties of 7.62 bore and 01 empty of .30 bore alongwith 04 spent bullet were recovered. The recovered empties were forwarded to the firearms expert and a report received telling that the same had been fired from one and the same weapon. Subsequent to the occurrence, the accused absconded. Thereafter, one of the accused approached the Court by way of pre- arrest bail application, accompanied by an explanation asserting his absence from the place of occurrence and claiming his presence at his

place of duty at the relevant time. An inquiry was consequently conducted, during which statements of various police officials, including the Moharrar of the police station and the Deputy Superintendent of Police, were recorded.

During the course of trial, the co-accused, who was ultimately acquitted, opted to produce defence witnesses, which were examined. Both accused were put to trial. Upon conclusion of the trial, accused Shahid Khan was acquitted, whereas the appellant was held responsible for the commission of the offence and was consequently convicted and sentenced.

4.Arguments heard and record

scanned through.

5.The key question before this Court is whether the learned trial Court was justified in holding the appellant guilty and whether the evidence available on record was sufficient to inspire confidence in such conclusion. Equally, important is the inquiry whether the learned trial Court adequately explained the circumstances that led it to acquit the co-accused Shahid Khan while convicting the appellant. In this context,

the learned trial Court invoked the principle of sifting the grain from the chaff. There is no dispute that the injured sustained firearm injuries and that the occurrence was reported without undue delay. However, mere presence of injuries on the body of the victim is not, by itself, determinative of the culpability of a particular accused. It is the ocular account that must satisfactorily establish that the incident occurred at the stated time, in the manner alleged, and at the hands of the accused so nominated. This Court must further examine whether, in the peculiar facts of the case, the appellant was substituted for the real culprit, and whether such possibility was brought on record by the defence. While the medical evidence corroborates the presence of the injured at the scene, it does not, in isolation, validate the entirety of the prosecution narrative. In order to properly appreciate the attending circumstances and to ensure that no miscarriage of justice is occasioned, this Court deems it appropriate to re-evaluate the evidence available on record.

6.In order to appreciate the peculiar circumstances of the present case, this Court deems it appropriate to examine the statements of the prosecution witnesses with particular care, especially the complainant/injured, the alleged eyewitness present at the time of occurrence, and the owner of the shop where the incident is stated to have taken place. All these witnesses were examined before the learned trial Court. The complainant/injured was examined as PW-5. He narrated the circumstances in which the unfortunate incident allegedly occurred and explained the arrival of the accused at the spot, the manner of firing, the receipt of firearm injury, his shifting to the hospital, and the subsequent reporting of the matter. The alleged eyewitness, who was examined as PW-4, supported the version of the complainant regarding the occurrence; however, it is noteworthy that he did not nominate the accused before the Investigating Officer when his statement under section 161, CrPC was recorded. The owner of the shop was examined as PW-3. He confirmed that the incident

occurred inside his shop; however, he remained silent regarding the arrival of the accused, their identity, the role attributed to them, and the manner in which the firing was allegedly made by the appellant or the acquitted co-accused.

This witness did not even disclose the number and identity of the assailants. All these witnesses were subjected to cross-examination on material aspects of the case, during which the defence attempted to expose contradictions and infirmities in the prosecution case. There is no denial of the fact that the injured sustained firearm injuries on vital part of his body, nor is it disputed that he was promptly shifted to the hospital where the matter was reported.

However, the crucial question before this Court is whether the incident occurred in the manner alleged by the prosecution, and whether the appellant was, in fact, present at the spot and fired in the manner claimed, particularly when the site plan was prepared on the pointation of the eyewitness. It is established that the blood stained earth was collected from inside the shop, which does indicate that the incident occurred at

the stated place. The manner of occurrence, the role of the appellant, and the exact location from where the firing was made remain shrouded in doubt. The prosecution case is not that the appellant entered the shop and fired at the injured from inside; rather, it is alleged that the accused arrived at the spot, saw the injured inside the shop, fired at him, and thereafter fled.

If this version is accepted, a serious question arises as to how the empties were recovered from inside the shop, when none of the prosecution witnesses stated that any of the accused entered the shop. In the normal course, the empties ought to have been recovered from outside the shop. Furthermore, if there existed prior enmity between the parties, it becomes equally questionable as to how the appellant would have ventured to enter the shop and open fire without ascertaining whether the injured was armed or not. These are material aspects which hit at the very origin of the prosecution case and demand satisfactory explanation. It is settled law that the testimony of closely related witnesses is not to be discarded merely on the

ground of relationship; however, such testimony must inspire confidence and must be free from any indication of malafide or motive for false implication. Where the evidence on record creates doubts about its credibility and suggests the possibility of substitution and false implication, reliance on such testimony becomes unsafe. In the present case, it is for the prosecution to dispel these doubts and to establish, through trustworthy and confidence- inspiring evidence, that the incident occurred at the stated time, in the stated manner, and at the hands of the appellant. The site plan has also been taken into consideration. It depicts one position outside the shop and another inside the shop; however, it is an admitted position that the same was prepared on the pointation of the alleged eyewitness. This Court is, therefore, constrained to examine why the eyewitness, while making his statement under section 161 CrPC, remained completely silent regarding the identity and names of the accused, yet subsequently claimed, on the very day of occurrence that the person who allegedly

entered the shop was the appellant, whereas the one who remained outside was the acquitted co- accused. This Court is required to ascertain whether, in fact, the appellant entered the shop and whether it was he, who allegedly fired as many as six shots at the victim. Keeping in view the distance shown in the site plan between the alleged firing point and the victim, it becomes difficult to reconcile the prosecution version with normal human conduct. If the assailants had arrived with firearms, motivated by blood feud, to eliminate the victim, there appears to have been no impediment to accomplish that objective. In such circumstances, it is highly doubtful that only one firearm injury would strike the neck of the victim, while the remaining shots would miss, particularly when the appellant is alleged to have been armed with a Kalashnikov. Equally confusing is the fact that when two persons were charged with firing at the victim, and one empty of .30 bore was recovered from outside the shop, the prosecution failed to clarify which of the shots caused the injury and from which weapon the fatal fire was

made. Surprisingly, the shopkeeper never stated, at any stage, that the firing was made by the accused who allegedly entered the shop. On the contrary, he remained entirely silent regarding the arrival of the accused and the firing attributed to them. Even the alleged eyewitness did not, in his initial version or in his statement under section 161 CrPC, assert that one of the accused entered the shop and fired at the victim.

In these circumstances, this Court is obliged to consider not only the number of accused and the injury sustained, but also the extent and nature of participation of each accused, particularly that of the acquitted co-accused. If two real brothers had come to the spot with a common intention to kill, it is difficult to comprehend how the victim would survive with a single firearm injury to the neck, given the surrounding circumstances. It is true that bullet marks were detected inside the shop; however, if this aspect is taken at its face value, it would rather suggest that more than one shot was fired. Had the appellant fired from inside the shop at close range, the victim would, in the ordinary course,

have sustained multiple firearm injuries. These circumstances, when examined cumulatively, leave no clarity as to whether the firing was made from inside the shop or from outside, or as to which of the accused actually fired the shot that caused the injury. The learned counsel for the complainant attempted to explain these discrepancies by contending that the eyewitness was about eleven years of age at the time of occurrence and, therefore, could not recall the names of the accused when his statement under section 161 CrPC. was recorded. Even if this explanation is accepted, a serious question arises as to how, during trial in the year 2016, the same witness came to know not only the names but also the specific roles of the accused. This, by itself, indicates that the eyewitness was not acquainted with the accused at the time of occurrence. In such a situation, it was incumbent upon the Investigating Officer to arrange a test identification parade, which was admittedly not done. When these circumstances are examined in totality, this Court is left with no option but to conclude that the prosecution did not come with

the whole truth. Material and essential facts appear to have been concealed not only from the Investigating Agency but also from the learned trial Court, and such concealment weakens the prosecution case.

7.It is conceded that the matter was promptly reported and that the victim sustained firearm injury, mere prompt reporting, by itself, is not sufficient to fix criminal liability. The prosecution was under an obligation to establish, through cogent and confidence-inspiring evidence, that both accused arrived at the place of occurrence, that the appellant entered the shop and fired at the victim, and that the injury was caused in the manner alleged. Since this burden has not been discharged, this Court is constrained to hold that the complainant and the prosecution witnesses failed to present the complete and truthful version of the occurrence.

This Court is required to determine whether both accused were responsible for the commission of the offence, whether the prosecution succeeded in establishing their presence at the place of occurrence at the stated

time, and whether the attending circumstances disclose which of the accused fired the shot that caused the firearm injury to the victim, particularly when general role of firing was attributed to both. It is pertinent to note that the acquitted co-accused, on the day of occurrence, was serving in the police department and was posted at Police Station Pishtakhara. It was on this basis that he moved an application seeking a fair investigation. An inquiry was conducted accordingly, relevant witnesses were examined, and documentary evidence regarding his presence at the place of duty on the day of occurrence was brought on record.

Subsequently, when the trial commenced, the acquitted co-accused opted to produce defence evidence. In consequence thereof, the Moharrar of the police station and the Deputy Superintendent of Police, under whose supervision he was performing his duties, appeared before the Court and recorded their statements. Both witnesses categorically stated that on the day of occurrence, the acquitted co- accused was present with them performing his

official duties. The documents prepared were duly exhibited through these witnesses. It is settled that a plea of alibi is to be examined with great caution; however, it is equally true that each case is to be assessed on its own peculiar facts. Keeping in view the circumstances of the present case, particularly the fact that the complainant sustained only a single firearm injury, this Court is constrained to examine whether the act could be attributed to two assailants or to a single assailant. Once the prosecution itself emphasized the role of the person, who allegedly entered the shop and fired, the question necessarily arises whether the acquitted co-accused also fired at the victim, especially when there is only one firearm injury.

The recovery of 06 empties from inside the shop and one empty from outside the shop lends support to the plea of alibi and suggests that, at the relevant time, the firing was attributable to a single person. However, the prosecution record remains silent as to the identity of that person.

Rather, the complainant attributed general role of firing to both accused. Once the complainant

was found unreliable regarding the presence of the acquitted co-accused, and once the presence of the co-accused at his place of duty stood firmly established through credible documentary evidence and the testimony of independent and responsible witnesses, no ambiguity remains that the complainant falsely implicated both accused in the occurrence. When the plea of alibi is proved on record and the defence witnesses inspire confidence, it inevitably casts serious doubt on the credibility of the complainant. In such circumstances, this Court is inclined to hold that the complainant distorted and exaggerated the facts. His testimony was neither corroborated by the alleged eyewitness at the earliest stage nor supported by the shopkeeper. Consequently, the prosecution version becomes doubtful. It is true that the maxim falsus in uno, falsus in omnibus is not an absolute rule and does not mechanically apply in criminal jurisprudence. Courts may, in appropriate cases, sift the grain from the chaff.

However, in the present case, the version of the complainant, from inception to conclusion,

appears to be tainted with exaggeration rather than truthful narration. Such exaggeration has damaged not only his own credibility but also that of the prosecution as a whole. Once the plea of alibi was found to be genuine and confidence-inspiring, it could not be ignored, even while considering the case against the appellant, particularly when the prosecution failed to establish from where the firing was actually made. If, according to the prosecution, the firing was made from outside the shop, it remained unexplained as to how empty cartridges were recovered from inside the shop and why, despite alleged multiple shots, the victim sustained only a single firearm injury. In view of these cumulative circumstances, this Court has no hesitation in holding that the prosecution failed to establish a nexus between the appellant and the commission of the offence.

Reliance is placed on the judgment of the apex court titled “Tajamal Hussain Shah vs the State and another” (2022 SCMR 1567), wherein, it has been held as under:

“It was petitioner's stance that on the fateful day and time, he was not present at the place of occurrence and was visiting his cousin, who was posted at 62 Signal Battalion Misrial Road, Rawalpindi and in-fact the deceased along with 25/30 persons attacked upon his house while armed with lethal weapons and beat his father. This plea of alibi of the petitioner was inquired into by the Investigating Officer i.e.

Mehmood Khan, SI (PW.17), who after thorough investigation found the same to be true.”

8.The medical evidence does not support the prosecution case for more than one reason. Firstly, the victim sustained only a single firearm injury, whereas the prosecution attributed general role of firing to both accused.

Secondly, the locale and trajectory of the injury do not lend support to the assertion that the firing was made by the appellant from inside the shop and from the position shown in the site plan. Had the appellant fired from inside the shop at close range, the victim would, in the

ordinary course of events, have sustained multiple firearm injuries. Moreover, in such a situation, the bullet would not have travelled in a downward direction, as suggested by the medical evidence. Rather, the circumstances indicate that the shot was fired from a place other than the one attributed to the appellant and not from the stated distance. These aspects clearly show that the ocular account is in conflict with the medical evidence, and such conflict has gone to the root of the prosecution case. Reliance is placed on the judgment of the apex court titled “Muhammad Nawaz Versus The State” (2025 SCMR 1053), wherein, it has been held as under:

“The abovementioned conflict between the ocular account and the medical evidence shows that in-fact the prosecution eye- witnesses were not present at the spot at the relevant time because, had they been present at the time of occurrence then they should have given the correct number of injuries sustained by Mst. Azran Bibi (deceased).”

9.As regards motive, the prosecution alleged prior blood feud between the parties.

However, neither the complainant nor the prosecution was able to bring on record any concrete incident evidencing such enmity, nor was any independent witness examined to substantiate the alleged motive. In the absence of proof of prior hostility and any supporting material, the alleged motive remains unestablished. Where motive is asserted as the sole reason for the commission of the offence, its failure assumes substance and must necessarily operate for the benefit of the accused. Reliance is placed on case of the apex court titled “Muhammad Khan alias Mithu versus The State and others” (PLD 2025 Supreme Court 425), wherein, it has been held as under:

“So far as motive part of the prosecution's case is concerned, we have observed that the same has not been established by the prosecution through cogent and confidence inspiring evidence.”

10.It is true that the appellant remained absconding for some time; however, abscondence by itself is not a substantive piece of evidence and cannot, in isolation, be made basis for conviction. Once the ocular account is found to be unreliable and is not corroborated by medical evidence, mere abscondence loses its evidentiary value and cannot be pressed into service against the appellant. Reliance can be placed on the judgment of the Apex Court titled “Fateh Khan Versus The State and others” (2025 SCMR 1408), which reads as follows: - “Abscondence per se is not a proof of the guilt of an accused person but it can be taken as corroborative piece of evidence.

In absence of trustworthy and confidence inspiring substantive incriminating evidence, conviction cannot be solely based upon abscondence of an accused.

Since the ocular testimony of the complainant Khalid Mehmood and PWs Tanveer Aslam and Muhammad Sajid Akhtar has been disbelieved by this Court in the instant appeals therefore, in

view of the above principles, the conviction of the appellants cannot be based on abscondence alone.”

11.The cumulative effect of the

attending circumstances unmistakably leads to the conclusion that the prosecution failed to bring home the guilt of the appellant beyond reasonable doubt. The learned trial Court failed to appreciate the material contradictions and improbabilities inherent in the prosecution case and, as a result, fell into serious error while recording the impugned conviction. The judgment under challenge is thus devoid of substance and suffers from material infirmities warranting interference by this Court.

Accordingly, the instant appeal is allowed and the impugned judgment of conviction is hereby set aside. The appellant Tariq is acquitted of the charge and shall be released forthwith, if not required to be detained in any other criminal case. Above are the detailed reasons of short order of even date.

12.Consequent thereto, the connected Cr.A No. 810-P/2025 titled “Khitab Gul vs

Shahid Khan & another” filed by the complainant challenging the acquittal of respondent/accused Shahid Khan, stands dismissed, in view of the observations and conclusions recorded herein.

13.Now diverting to the Criminal Revision No. 189-P/2025 titled “Khitab Gul vs Tariq & 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.

Announced

JUDGE

*Muhammad Fiaz* *SB* Hon’ble Mr. Justice Sahibzada Asadullah, J