Sajid Ullah Vs State & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) Cr.A No. 112-M/2024 Sajid Ullah son of Jafar Khan (Appellant) Versus State & others (Respondents)

Present:- Mr. Rashid Ali Khan, ASC, for appellant/convict.

Mr. Naeem Khan, Astt: A.G, for State.

Mr. Murtaza Khan, AHC, for respondent/ complainant.

Cr.A No. 107-M/2024 Jafar Khan son of Bahadar Jan (Appellant) Versus State & another (Respondents)

Present:- Mr. Rashid Ali Khan, ASC, for appellant/convict.

Mr. Naeem Khan, Astt: A.G, for State.

Mr. Murtaza Khan, AHC, for respondent/ complainant.

Cr.A No. 130-M/2024 Jafar Khan son of Bahadar Jan (Appellant) Versus Zakir Ullah & another (Respondents)

Present:- Mr. Rashid Ali Khan, ASC, for appellant/ complainant of Cross Mad No. 13.

Mr. Naeem Khan, Astt: A.G, for State.

Mr. Murtaza Khan, AHC, for acquitted respondent.

Cr.A No. 137-M/2024 Jabir Khan son of Muhammad Asad Jan (Appellant) Versus State & others (Respondents)

Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

Present:- Mr. Murtaza Khan, AHC, for appellant/ complainant.

Mr. Naeem Khan, Astt: A.G, for State.

Mr. Rashid Ali Khan, AHC, for acquitted respondents.

Cr.R No. 37-M/2024 Jabir Khan son of Muhammad Asad Jan (Petitioner) Versus State & others (Respondents) Present: Mr. Murtaza Khan, AHC, for petitioner/complainant.

Mr. Naeem Khan, Astt: A.G, for State.

Mr. Rashid Ali Khan, ASC, for accused/ respondents.

Dates of hearing: 24.6.2026

JUDGMENT

SALAH-UD-DIN, J.- Through this single judgment, we intend to decide the instant criminal appeal bearing No. 112-M/2024 titled “Sajid Ullah v/s State & others”, as well as the connected criminal appeal No. 107-M/2024 titled “Jafar Khan v/s State & another”, criminal appeal No. 130-M/2024 titled “Jafar Khan v/s Zakir Ullah & another”, criminal appeal No. 137-M/2024 titled “Jabir Khan v/s State & others” and criminal revision No. 37-M/2024 titled “Jabir Khan v/s State & others”. All these connected criminal appeals and criminal revision are by-product of one & the same impugned judgment dated 30.3.2024 of the Court of learned Additional Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

Sessions Judge, Samarbagh, District Dir Lower, rendered in case FIR No. 130 dated 29.5.2021, registered U/Ss 302, 324,337-F (i), 337-F (v), 337-F

(vi)PPC, R/W section 15-AA at P.S Samarbagh, District Dir Lower. In the ibid criminal case, upon conclusion of a full-fledged trial bearing No. 52/S.C.

of 2021, the appellants namely Sajid Ullah and Jafar Khan were convicted and sentenced as follows: -

25.Hence, for attempt to commit murder of complainant Jabir Khan, accused Jafar Khan is convicted U/S 324 PPC and is sentenced to undergo five (05) years rigorous imprisonment with fine of Rs. 30,000/-, in default whereof he shall further undergo six months simple imprisonment. He is further convicted U/S 337-F(v) PPC for inflicting (Hashimah)/ causing complex fracture of right hand forth finger of the complainant Jabir Khan through firearm injury and is held liable to pay Daman in lump sum to the complainant to the tune of Rs. 30,000/- and is also sentenced to rigorous imprisonment for two years as Ta'zir. In default of payment of Daman, the convict shall be kept in Jail and shall be dealt with in accordance with Section 337-Y of the Pakistan Penal Code. For inflicting Munaqqillah/ causing complex displaced fracture to left shoulder of humerus proximal part of bone of the complainant through fire arm injury, accused Jafar Khan is further sentenced under section 337 F(vi) PPC and is held liable to pay Daman to the tune of 50,000/- and is further sentenced to rigorous imprisonment for three years as Taz'ir. In default of payment of Daman, the convict shall be kept in Jail and shall be dealt with in accordance with Section 337-Y of the Pakistan Penal Code. Accused Sajidullah is convicted U/S 302-(b) PPC for committing murder (Qatl-e-Amd) of deceased Sadeequllah and is sentenced to rigorous imprisonment for life as Tazir. He is further sentenced to pay compensation to the tune of Rs. 10,00,000/- or in default to suffer simple imprisonment for six months. The entire amount of compensation, if realized, be paid to the legal heirs of deceased in terms of section 544-A of the Cr PC. He is further convicted U/S 324 PPC for attempting Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

to commit murder of PW Sadam Hussain and is sentenced to undergo rigorous imprisonment for five (05) years, with fine of Rs. 30,000/-, in default whereof he shall further undergo six months simple imprisonment. He is further convicted U/S 337-F(i) PPC for causing (damiah)/inflicting fire arm injury to Sadam Hussain on upper chest part of his body and is sentenced to pay in lump sum Daman to the tune of Rs. 30,000/- to the victim and is also sentenced to rigorous imprisonment for one year as Ta'zir. In default of payment of Daman, the convict shall be kept in Jail and shall be dealt with in accordance with Section 337-Y of the Pakistan Penal Code. Both the accused are acquitted of the charges under section 15 AA. Similarly, accused Jafar Khan is acquitted of the charges under section 302/324/337 F(i) PPC to the extent of allegations against him of sharing common intention with convict Sajidullah in committing murder of deceased Sadeequllah and attempting to commit murder of PW Saddam Hussain thereby causing him injuries. Likewise accused Sajidullah is acquitted of the charges under section 324-337 F(v)-337 F(vi) PPC to the extent of allegations against him pertaining to sharing common intention with accused Jafar Khan in attempting to commit murder The of complainant Jabir Khan and causing him injuries. substantive sentences awarded to the convicts shall run concurrently. Benefit of section 382-B of the Cr PC is extended to the convicts.

26.Convicts are in custody, they are hereby sent through conviction warrants to the District Jail Timergara Dir Lower. Copies of this judgment delivered to the convicts free of cost in terms of section 371 of the Cr PC. Case property be kept intact till expiry of period provided for appeal/revision.

2.Arguments of learned counsel for parties, as well as learned Astt: A.G for State were heard in considerable detail and requisitioned record gone through with their valuable assistance.

3.As per the prosecution case, the

complainant, namely Jabir Khan, reported the matter to the local police at the Emergency Ward of Samar Bagh Hospital, stating that on the night of occurrence, after Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

offering Maghrib prayers at the mosque, he, along with Jafar Khan, was proceeding towards his house. At about 7:45 p.m., the complainant requested Jafar Khan not to use the disputed path. Upon this, a verbal altercation ensued between them. During the course of the altercation, accused Jafar Khan allegedly took out a pistol from the fold of his shalwar and opened fire at the complainant, causing firearm injuries on different parts of his body. In the meantime, upon hearing the sound of gunfire, the complainant's cousin, Sadiq Ullah (since deceased), and injured witness Saddam Hussain rushed to the place of occurrence with a view to pacifying the rival parties. At that juncture, the appellant, Sajid Ullah, allegedly arrived at the spot armed with a pistol and indiscriminately fired at them, as a result whereof, both Sadiq Ullah and Saddam Hussain sustained firearm injuries on different parts of their bodies. Subsequently, Sadiq Ullah succumbed to his injuries while under treatment at the hospital.

Besides the complainant, the occurrence was allegedly witnessed by the injured Saddam Hussain as well as the complainant's brothers, Zakir Ullah and Abdullah.

The motive behind the occurrence was stated to be previous ill-will between the parties. On the basis of Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

the complainant's statement, a Murasila (Ex. PA/1) was prepared, which subsequently culminated in the registration of the instant FIR (Ex. PA) against the appellants at the police station concerned.

4.Likewise, there is a counter-version of the instant occurrence in the shape of Naqal Mad No.

13 dated 31.05.2021, lodged by one of the appellants, namely Jafar Khan, wherein accusations were levelled against Zakir Ullah and Saddam Hussain for having made a murderous assault upon the complainant party.

It was alleged by the injured/complainant that on the night of the occurrence, after offering Maghrib prayers at about 7:45 p.m., he, along with his minor son, Muhammad Isa, was proceeding towards his house. In the meantime, the accused, namely Jabir Khan and his brother Zakir Ullah, while being armed with pistols, intercepted them and restrained them from using the disputed path. Consequently, a verbal altercation ensued between the parties. It was further alleged that during the course of the altercation, accused Zakir Ullah suddenly took out a pistol and opened fire, as a result whereof, the complainant sustained a firearm injury on the wrist of his right hand, whereas his minor son, Muhammad Isa, suffered a firearm injury on his Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

left leg i.e. shin ()پنڈلی. The remaining accused, namely Sadiq Ullah and Saddam Hussain, allegedly subjected the complainant-party to fist and kick blows. Upon hearing the sound of gunfire, the complainant's son, Sajid Ullah, rushed to the place of occurrence, whereupon accused Zakir Ullah also fired at him, causing a firearm injury to the right side of his face.

The motive behind the occurrence was stated to be the previous ill-will existing between the parties over the use of the disputed path.

5.A bare perusal of the record reveals that both the appellants, namely Sajid Ullah and Jafar Khan, have been specifically and directly nominated by the injured/complainant as the perpetrators of the firearm injuries inflicted upon him, injured PW Saddam Hussain, and the deceased Sadiq Ullah. As is evident from the contents of the FIR, reproduced hereinabove, appellant Sajid Ullah has been assigned the specific role of causing firearm injuries to injured PW Saddam Hussain and the deceased Sadiq Ullah.

Although, the occurrence admittedly took place at night time, however, the mere fact that it was a nocturnal incident does not, by itself, cast any doubt Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

upon the identity of the assailants. The parties admittedly belong to the same village and were well acquainted with each other. Moreover, the occurrence was preceded by a dispute over the use of the pathway, furnishing a motive and providing the complainant-party with sufficient opportunity to recognize the assailants. In such circumstances, the possibility of either false implication or mistaken identity appears to be highly improbable. This inference is further reinforced by the unimpeachable fact that the complainant, injured PW Saddam Hussain, and the deceased Sadiq Ullah all sustained firearm injuries, as evidenced by the bullet wounds found on their bodies. Needless to emphasize, there is a cross-version of the instant occurrence in the shape of Naqal Mad No. 13 dated 31.05.2021, wherein the presence of both the complainant-party, including the deceased, and the accused party at the place of occurrence has unequivocally been admitted. Such an admission lends further assurance to the prosecution case regarding the presence of the parties at the crime scene and substantially rules out Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

the possibility of their false implication on the ground of absence from the place of occurrence.

6.In order to prove their case, the prosecution has mainly been relying upon eyewitness-account offered by three prosecution witnesses, whose statements have been recorded as PW-8, PW-9 and PW-10, respectively and there were circumstantial evidence in the shape of certain recoveries along with matching FSL reports, in respect of blood-stained earth and garments of deceased and the injured PWs, as well as the weapons of offence.

7.To substantiate the charge, the

complainant, Jabir Khan, entered the witness-box as PW-8. In his examination-in-chief, he substantially reiterated the prosecution version as set-forth in the FIR. He deposed that at the relevant time he was present near the disputed path along with appellant Jafar Khan, who initiated a verbal altercation over the use of the said pathway. He categorically asserted that it was appellant Jafar Khan who first opened fire at him, causing firearm injuries on his person. He further specifically nominated co- Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

appellant Sajid Ullah as the person who arrived at the place of occurrence armed with a pistol and made indiscriminate firing upon the complainant party, as a result whereof, the deceased Sadiq Ullah and injured PW Saddam Hussain sustained firearm injuries. He also named Zakir Ullah ( the abandoned PW) and Abdullah as eyewitnesses to the occurrence. The injured witness, Saddam Hussain, appeared as PW-9. While corroborating the testimony of the complainant on all material particulars, he deposed that upon hearing the sound of gunfire, he, along with the deceased Sadiq Ullah, rushed to the place of occurrence with a view to pacifying the rival parties. According to him, it was the appellant Jafar Khan who could be saddled for firing at the complainant namely Jabir Khan. Shortly thereafter, appellant Sajid Ullah arrived at the scene armed with a pistol and opened fire upon the complainant-party. As a consequence thereof, the deceased Sadiq Ullah sustained a firearm injury on his head, whereas he (PW Saddam Hussain) himself received a firearm injury on his chest. Significantly, the firearm injuries attributed to appellant Sajid Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

Ullah were inflicted upon the vital parts of the bodies of both the deceased and the injured witness, which, prima facie, manifest his intention to commit their murder. The prosecution version was further corroborated by PW-10, Abdullah, who also assigned specific and consistent roles to both appellants with regard to the firearm injuries caused to complainant Jabir Khan, injured PW Saddam Hussain and the deceased Sadiq Ullah. He likewise deposed that the genesis of the occurrence was the previous dispute between the parties regarding the use of the disputed pathway. Although the aforesaid witnesses were subjected to lengthy and searching cross-examination by the learned defence counsel, however, nothing favourable to the defence could be elicited to discredit their testimonies on any material aspect of the prosecution case. Their evidence remained consistent and confidence-inspiring with regard to the presence of both rival parties at the place of occurrence, the motive behind the incident, and the respective roles attributed to the appellants.

Furthermore, the presence of the deceased and the prosecution witnesses at the place of occurrence Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

appears to be most natural in the circumstances of the case.

8.Learned counsel for the appellants also vehemently contended that the most material and independent eyewitness of the occurrence i.e. Zakir Ullah, was withheld by the prosecution, as he was ultimately given up without being examined before the trial Court. According to the learned counsel, an adverse inference under Article 129(g) of the Qanun- e-Shahadat Order, 1984, is liable to be drawn against the prosecution to the effect that had the said witness been produced, he would not have supported the prosecution version and his testimony would have been unfavourable to its case. The above contention, however, is devoid of substance. It is an admitted position on the record that another eyewitness of the occurrence, namely Abdullah, was examined by the prosecution as PW-10. Besides him, the prosecution also produced the injured eyewitness, Saddam Hussain (PW-9), whose presence at the place of occurrence stands established by the firearm injury sustained by him during the incident, as well as the injured complainant, Jabir Khan (PW-8). Thus, the Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

prosecution case does not rest upon the solitary testimony of Zakir Ullah. Rather, it is based upon the consistent and confidence-inspiring accounts of two injured witnesses, one of whom is the complainant himself, duly corroborated by another eyewitness. In such circumstances, the non-examination of Zakir Ullah is not fatal to the prosecution case, nor does it warrant the drawing of an adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order,

9.From above depositions of star

witnesses of the prosecution, it is crystal clear that these PWs have not only narrated the mode and manner of occurrence in their own words specifying the exclusive and distinct roles of firing, attributed to the present appellants, but they have also disclosed the other minute details of subject event in terms of motive, which was stated to be a dispute over the usage of path and above all specifying the weapons of offence i.e. the pistols, allegedly used by appellants in commission of the offence. It was also spelled-out from mouths of these PWs that at the relevant time, the complainant-party including Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

deceased being inhabitants of the same vicinity were not only unaware in respect of arrival of the appellant namely Sajid Ullah to the venue of crime but they have naturally been empty-handed as well, therefore, they could not escape the deceased then alive from sudden attack of the appellants. Trend of cross-examinations of these PWs/eye-witnesses would reveal that the mode & manner of the occurrence, venue of the crime, presence of eyewitness on the spot including the deceased and motive part of the case, have been specified and confirmed from mouths of these PWs. In response to a query put-forward by learned counsel for the defence, PW-10 i.e. the complainant has deposed in his cross-examination that the occurrence has taken place at the disputed path. In response to another query, PW-10 has stated that at the time of occurrence, the deceased Sadiq Ullah, in presence of other PW Zakir Ullah came to the spot in order to ease-down both the rival parties. For the sake of arguments, if the appellants have not attracted to the venue of crime, then there was no need for learned counsel for the defence to put questions to these Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

PWs in their cross-examinations about their presence on the spot as well as motive part of the case.

Neither any dishonest improvements appear in their statements nor the story advanced by them appears to be unnatural or concocted-one, as such, their testimonies have remained un-impeached or un- shattered despite taxing and searching cross- examination by the learned counsel for defence. In case titled “Aurangzeb v/s State”, the Hon’ble apex Court rendered reasons about presence of the eyewitnesses on the spot qua their natural narrations of the occurrence in terms of specific role of nominated accused [1]. Same rational was also earlier followed by the Hon’ble apex Court in Muhammad Waris’s case by holding that “sufficient explanation has been offered by the eyewitness about their presence at the venue of crime and witnessing of the subject occurrence” [2].

10.No doubt, there were certain minor contradictions in the statements of these PWs, in respect of arrival of police party to the hospital and non-mentioning of the other persons who have been “Aurangzeb v/s State” reported as 2020 SCMR 612.

“Muhammad Waris v/s The State” reported as 2008 SCMR 784.

Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

present at the spot, in addition to the eyewitnesses and the inter-se distance between the place of occurrence and that of police station concerned, however, it is equally important to note that these two eye-witnesses have been examined in Court after more than two- years & 04-months of the tragic incident of murder of deceased and occurring of such minor contradictions as mentioned earlier were quite natural. When witnesses were examined after more than two-years of the occurrence a photographic narration of the occurrence cannot be expected from them. Reference can be made to the case of “Khadim Hussain v/s State”, wherein the aforesaid rational of law has explicitly been explained qua creeping of minor contradiction with passage of time [3]. Reliance can also be placed on the case of “Muhammad Ilyas v/s State” whereby it was held by the Hon’ble apex Court that “contradictions which are not grave in nature can be ignored safely, as minor contradictions creep in with passage of time” [4].

11.Learned counsel for the appellants was also critical of the fact that both the eyewitnesses of “Khadim Hussain v/s State” reported as PLD 2010 Supreme Court 669.

“Muhammad Ilyas v/s State” reported as 2011 SCMR 460.

Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

ocular-account were closely related to the deceased, as well as the injured PWs. However, mere relationship between witnesses and deceased would not be sufficient to damage their evidence altogether. The Hon’ble apex Court in the case of “Abdur Rauf Vs. State & another” has held that “relationship by itself is no ground to discard or discredit testimony of an eye- witnesses unless he is shown to be partisan and interested witness” [5]. It is an intrinsic value of statement of a prosecution witness which is to be taken into account and not his/her relationship. It is not a rule of thumb that an interested or related witness will always tell lie and independent witness truth, rather testimony of a witness in each case is required to be adjudged in light of its own facts and circumstances. If it is established on record that a witness had a motive to implicate an accused person falsely in criminal a case, then in such eventuality independent corroboration may be sought from other evidence. In the present case, there is nothing on record to suggest any previous blood feud or other bitterness of serious nature between the parties, except the one referred to above i.e. a dispute over the path, hence, these eye-witnesses had no motive “Abdur Rauf Vs. State and another” reported as 2003 SCMR 522.

Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

for false implication of present appellants. Likewise, same rational of law was earlier expounded by the Hon’ble apex Court in Amal Sherin’s case by holding that “mere relationship of a witness with deceased would not discredit his/her testimony” [6]. Refence can also be made to case titled “Khalid v/s State” [ 7].

In light of ratio-decidendi expounded in the aforesaid judgments of various Courts, the ocular- account furnished by PW-8, PW-9 and PW-10, respectively, cannot be discarded on the sole ground of their close relationship with the deceased, when otherwise they appear to be truthful witnesses.

12.The medical evidence adduced by the prosecution fully corroborates the ocular account.

The injury sheet of the deceased (Ex. PW-7/6), the inquest report (Ex. PW-1/4), and the post-mortem report (Ex. PW-7/5), comprising six pages, form part of the record. Likewise, the injury sheet of complainant Jabir Khan was exhibited as Ex. PW- 7/7, whereas the injury sheet of injured PW Saddam Hussain was brought on record as Ex. PW-7/8. A perusal of these documents unequivocally “Amal Sherin & another v/s State” reported as PLD 2004 Supreme Court 371.

“Khalid v/s State” reported as 2024 SCMR 1474.

Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

demonstrates that the deceased as well as the injured witnesses sustained firearm injuries on different parts of their bodies during the occurrence. To prove the medical aspect of the case, the prosecution examined Dr. Adnan Khan as PW-7. The post- mortem report prepared by him reveals that the deceased had sustained a firearm injury on a vital part of his body, accompanied by active bleeding, which ultimately proved fatal. The medical evidence is in complete harmony and lends full corroboration to the ocular account furnished by PW-8 (complainant Jabir Khan), PW-9 (injured Saddam Hussain), and PW-10 (Abdullah) with regard to the nature of the injuries, the weapons used, and the manner of the occurrence. Thus, the learned trial Court has rightly placed reliance upon the said evidence while recording the conviction of the appellants. The firearm injuries sustained by the complainant, the injured witness, and the deceased furnish a strong guarantee of their presence at the place of occurrence. In the circumstances of the case, there was no plausible reason for the injured witnesses to falsely implicate the appellants while Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

allowing the real culprits to escape unscathed. It is no doubt true that the testimony of an injured witness is not to be accepted as an inflexible rule merely because of the injuries sustained by him, nor can it be presumed that such a witness would invariably speak the whole truth. Nevertheless, the evidence of an injured witness enjoys a special evidentiary status and cannot be discarded merely on the ground that he is interested in securing the conviction of the accused. Rather, such testimony is to be examined with due care and caution in the light of the attending facts and circumstances of each case. Where it is found to be truthful, confidence- inspiring, and corroborated by the surrounding circumstances, it can safely be relied upon without any hesitation. In the instant case, the presence of the complainant, the injured witness, and the deceased at the place of occurrence, i.e. the disputed pathway, stands conclusively established by the firearm injuries sustained by them. Their presence is, therefore, not only natural and probable but is also fully corroborated by the contemporaneous medical evidence, which materially reinforces the ocular Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

account furnished by the prosecution witnesses.

Reliance is also placed on the judgment of Hon’ble apex Court rendered in case of “Rooh Ullah & another v/s State & others” wherein it was expounded by their lordships that no doubt, injuries on the person of a witness are not a passport into the realm of truth, however, the learned counsel has not been able to point-out even a single circumstance to suspect testimony of Azam Tariq PW. Incident, a daylight affair, was reported with a remarkable promptitude followed by examination of the injured as well as autopsy, circumstances that cumulatively exclude possibility of consultations or deliberations [8]. Even otherwise, it is settled proposition of law that “medical evidence may confirm direct or ocular account and by all means it is corroboratory in nature” [ 9].

13.The Investigating Officer has collected blood-stained earth from the spot, as well as blood- stained garments of the deceased and the injured PWs. Likewise, Investigating Officer has also “Rooh Ullah & another v/s State & others” reported as 2022 SCMR 888 Abdul Rashid v/s The State” reported as 2019 P Cr. LJ 1456 Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

recovered the weapons of offence i.e. the .30-bore pistols, on the pointation of present appellants by dint of recovery memo, Ex. PW-4/1. Likewise, the police also recovered six crime empties of .30-bore from the spot. There was a positive FSL report, Ex.

PW-11/10 in field whereby it was opined that the two .30-bore pistols recovered on the pointation of the appellants were matched with the crime empties recovered from the spot. Likewise, the blood recovered from the spot, blood-stained garments of the deceased as well as that the injured PWs were opined to be containing human blood and of the same group. Hence, these important pieces of circumstantial evidence too, are in complete conformity with the ocular-account furnished by PW-8, PW-9 and PW-10, respectively.

14.Motive qua commission of offence was disclosed to be a dispute over the path/way. In support of the motive, the prosecution relied upon testimonies of the complainant as well as that of injured PW, who appeared in the Court as PW-8 & PW-9, respectively. During the course of lengthy and searching cross-examinations on behalf of Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

defence, motive part of the case could not be shattered. In case titled “State v/s Muhammad Sharif”, the Hon’ble apex Court has held that the “motive is a double-edged weapon which cuts both sides in alike manner” [10].

15.Prosecution has proved its case against the appellants beyond shadow of doubt through trustworthy and confidence inspiring direct evidence as well as corroboratory and circumstantial evidence, which have properly been appreciated by learned trial Court, hence, conviction of appellants for murder of the deceased Sadiq Ullah, is not open to any exception.

16.In view of what has been discussed above, the instant criminal appeal being bereft of any merits stands dismissed and as a natural corollary impugned conviction and sentence of the appellant recorded by learned trial Court through impugned judgment dated 30.3.2024, is upheld and maintained.

17.For the foregoing reasons recorded in this judgment, the connected criminal appeal bearing “State VS. Muhammad Sharif and others” reported as 1995 SCMR 635.

Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

No. 107-M of 2024, preferred by appellant Jafar Khan against his impugned conviction and sentence of five years' rigorous imprisonment U/S 324 PPC, is also dismissed.

18.As regards the connected Criminal Appeal No. 137-M of 2024, the appellant, Jafar Khan, has called in question the judgment of acquittal dated 30.03.2024, rendered in D.D. No. 13 (Cross-Version) arising out of FIR No. 130 dated 29.05.2021, registered, U/Ss 324, 337-A(i), 337-F(i), 34 PPC, R/W section 15-AA of the Arms Ordinance, 1965, at Police Station Samarbagh, District Lower Dir, whereby the accused/ respondents, namely Zakir Ullah and Saddam Hussain, were acquitted of the charges framed against them. At the very outset, it may be observed that there is an unexplained and inordinate delay of about two days in lodging the cross-version. According to the contents of D.D. No. 13, the alleged occurrence took place on 29.05.2021 at about 7:45 p.m., whereas the matter was reported to the police on 31.05.2021 at 9:50 a.m. No plausible or satisfactory explanation has been furnished by the complainant for the Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

intervening delay, particularly when he himself had already been nominated as an accused in the main FIR arising out of the same occurrence. Such unexplained delay undoubtedly creates a serious dent in the authenticity of the prosecution version set-up in the cross-case. It is further borne out from the record that, according to the complainant, three persons, namely the complainant Jafar Khan, injured PW Sajid Ullah and minor Muhammad Essa, sustained firearm injuries at the hands of the accused/respondents. However, no reliable medical evidence has been produced in support of this assertion, as the complainant-party admittedly relied upon self-treatment. Even otherwise, the medical reports relied upon by the complainant do not substantiate the ocular account. The alleged medical reports of complainant Jafar Khan and minor Muhammad Essa merely depict superficial lacerated wounds, whereas the medical report relating to injured PW Sajid Ullah reveals only a minor scratch below his eye. The nature of these injuries is wholly inconsistent with the allegation that the accused/respondents had launched a murderous Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

assault by resorting to indiscriminate firearm shots.

Indeed, it is difficult to comprehend that if the accused/respondents had actually fired at the complainant-party with the intention of committing their murder, as alleged, the resulting injuries would not be confined merely to superficial lacerations and a minor scratch on the face. This glaring inconsistency between the ocular account and the medical evidence materially undermines the veracity of the prosecution version advanced in the cross- case. The settled principle of criminal jurisprudence is that an order of acquittal enjoys a double presumption of innocence in favour of the acquitted accused, and unless the findings recorded by the trial Court are shown to be arbitrary, capricious, perverse, or based upon a gross misreading or non-reading of the evidence, an appellate Court would be slow in interfering with such an order. In the instant case, no such illegality or infirmity has been pointed out by the learned counsel for appellants. Rather, the reasons recorded by the learned trial Court are fully borne out from the evidence available on the record.

Consequently, the impugned judgment of acquittal Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

dated 30.03.2024 calls for no interference.

Accordingly, the connected Criminal Appeal No.

137-M of 2024, preferred by appellant/complainant Jafar Khan, being devoid of merit, is hereby dismissed.

19.So far as the connected Criminal

Appeal No. 137-M of 2024 is concerned, the appellant/complainant, namely Jabir Khan, has assailed the judgment dated 30.03.2024 to the extent whereby the accused/respondents, Jafar Khan and Sajid Ullah, were acquitted of the charges, U/Ss 324, 337-F(v), 337-F(vi) PPC, R/W section 15-AA of the Arms Ordinance. A careful appraisal of the evidence on record reveals that the prosecution has failed to produce cogent, confidence-inspiring, and legally reliable evidence to establish the aforesaid charges against the accused/respondents beyond reasonable doubt. In these circumstances, the learned trial Court was fully justified in extending the benefit of doubt to the accused/respondents and recording their acquittal under the aforesaid provisions of law. No illegality, perversity, misreading, or non-reading of the evidence has been pointed out which may Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

warrant interference by this Court in the exercise of its appellate jurisdiction. Accordingly, the connected Criminal Appeal No. 137-M of 2024, being devoid of merit, is hereby dismissed.

20.Insofar as the connected Criminal

Revision No. 37-M of 2024, seeking enhancement of sentence, is concerned, suffice it to observe that the occurrence had admittedly taken place at the spur of the moment, without any premeditation or prior planning on the part of the accused-party. The record does not disclose the existence of any aggravating circumstance warranting the award of the extreme penalty. In such circumstances, the learned trial Court was fully justified in awarding the sentence of imprisonment for life to appellant Sajid Ullah instead of the capital sentence. No legal or factual ground has been made out to justify enhancement of the sentence. Accordingly, the connected Criminal Revision No. 37-M of 2024, being devoid of merit, is hereby dismissed.

21.Upon completion of the remaining term of his substantive sentences, appellant Jafar Khan Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din

shall be released forthwith from the jail, if not required to be detained in any other case. The rest of the impugned judgment dated 30.03.2024 shall remain intact, including the benefit of section 382-B, Cr.P.C., and the direction that all substantive sentences awarded to appellant Jafar Khan shall run concurrently.

22.These are the reasons for our short order of even date.

Announced -Sd- Dt.24.6.2026 JUDGE

-Sd-

JUDGE

Nawabb (D.B.) Hon’ble Mr. Justice Dr. Khurshiq Iqbal Hon’ble Mr. Justice Salah-ud-Din