Nauman Vs The State & another (with connected jehangir khan Vs The State & others)

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 76-P/2026 with Murder Reference No. 01-P/2026

Nauman Vs The State & another

JUDGMENT

Date of hearing: 29.09.2026

Appellant by: Barrister Amir Khan Chamkani.

The State by: Mr. Amirzeb, AAG.

Complainant by: - Mr. Muhammad Saeed Khan, Advocate.

SAHIBZADA ASADULLAH, J.- Through this single judgment, this court is intending to decide the instant as well as connected Appeal No. 87-P/2026 titled “Jehangir Khan Vs the State & others” as both these matters are arising out of one and the same judgment dated 17.01.2026 passed by the learned Additional Sessions Judge, Katlang, District Mardan delivered in case FIR No. 01 dated 01.01.2020 under sections 302/324/114/148/149/337-

F(V)/337-D PPC read with section 15 AA registered at police station Katlang, District Mardan, whereby, the respondents/accused Momin Shah, Ikram Shah, Imtiaz Ali, Jawad Ali Shah and Bahadar Shah was acquitted of the charge while the appellant Nauman was convicted and sentenced as under:

“U/s 302 (b) PPC as Tazir to death penalty and be hanged from neck till death subject to confirmation by the worthy Peshawar High Court, Peshawar and necessary murder reference for confirmation of sentence of death to convict be also send to Peshawar High Court. The convict is also to pay compensation of Rs.10,00,000/- (rupees ten lac) to the LRs of the deceased Saleem and, in default whereof, to suffer simple imprisonment for six months.

U/s 324/148/149 PPC to rigorous imprisonment for five years for ineffectively firing on complainant Jehangir Khan, Shad Ali and Zahir and for effectively firing on Mukhtiar Ali and Sana Ullah on five counts as Tazir.

U/s 337-F(V)/148/149 PPC accused Noman to pay daman of Rs.

50,000/- each for causing injuries to Mukhtiar Ali and minor Sana Ullah in lump sum or in installments within a period of five years from this judgment. If convict fails to pay Daman or any part of it thereof within specified period, then he be kept in jail in same manner as if he is sentenced to Simple Imprisonment (SI) until Daman is paid. If convict dies before payment of Daman or any part of it, it shall be recovered from his estate. If either of injured/victim dies, amount of Daman or any unpaid part of it, shall be paid to their LRs as per their Shari shares. However, it is not proved that he is a habitual, hardened and desperate criminal or offence was committed in the pretext of honor hence, U/S 337-N (ii) of The Pakistan Penal Code, 1860 sentence of Ta'zir for offence is not awarded.

U/s 337-D/148/149 PPC accused Noman to pay Arsh of Rs. 975784/- (equivalent to 1/3rd Diyat prevalent on the day of occurrence i.e. 27,77,353/-) to both injured Mukhtiar Ali and minor Sana Ullah in lump sum or in installments within a period of five years from this judgment. If convict

fails to pay Arsh or any part of it thereof within specified period, then he be kept in jail in same manner as if he is sentenced to Simple Imprisonment (SI) until Arsh is paid. If convict dies before payment of Arsh or any part of it, it shall be recovered from his estate. If either injured/victim dies, amount of Arsh or any unpaid part of it shall be paid to his LRs as per his Shari share. But it is not proved that he (convict) is a habitual, hardened and desperate criminal or offence was committed in pretext of honor. Hence, U/S 337-N (ii) of the Pakistan Penal Code, 1860 sentence of Ta'zir for offence is not awarded.

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

2.As per the prosecution case, as set out in the murasila, on 01.01.2020, the complainant Jehangir Khan reported the occurrence at Casualty Hospital, Katlang, alleging that he, alongwith deceased Saleem, injured Mukhtiar and Sana Ullah as well as Shad Ali and Zahir, were present at the spot

when in the meantime, the accused Momin Shah, Ikram Shah, Imtiaz Ali, Jawad Ali Shah, Bahadar Shah, Noman and Sakhawat Shah armed with firearms, arrived at the scene and upon seeing the complainant party, accused Noman and Sakhawat Shah started firing at them with their respective weapons as a result of which Saleem sustained firearm injuries and succumbed to the same at the spot, whereas Mukhtiar and Sana Ullah also sustained firearm injuries on different parts of their bodies; that the complainant Jehangir Khan alongwith Shad Ali and Zahir, remained unhurt; that motive ascribed to the incident was an earlier altercation between the parties over the use of a thoroughfare; that the accused were charged for the commission of offence hence, the present FIR.

3.It is pertinent to note that soon after the occurrence, the accused Sakhawat Shah went into hiding and proceedings under section 512 CrPC were initiated against him.

Complete challan was submitted to the court.

Provisions of section 265-C CrPC were

complied with and, the appellant alongwith acquitted co-accused was charge sheeted, to which they pleaded not guilty and claimed trial. In order to prove its claim, the prosecution produced and examined as many as 21 witnesses. After closure of prosecution evidence, statements of the appellant alongwith co-accused were recorded under section 342 CrPC, wherein they posed innocence however, neither they wished to be examined on oath as required under Section 340(2) CrPC nor wanted to produce evidence in defence. The learned trial Court, after full-fledged trial, acquitted the co-accused Momin Shah, Ikram Shah, Imtiaz Ali, Jawad Ali Shah and Bahadar Shah while convicted the appellant vide the impugned judgment hence, the instant appeal.

4.Arguments heard and record

scanned through.

5.The instant criminal appeal arises out of an occurrence in which one person lost his life and two others sustained firearm injuries. The appellant was tried alongwith other nominated accused and was ultimately

convicted by the learned trial Court under Section 302(b) PPC and sentenced to death penalty. Five of the co-accused, however, were acquitted. The case, therefore, does not come before us merely with the question whether a serious occurrence took place. The occurrence is beyond dispute. The real difficulty lies in determining how the occurrence came about, what part of the prosecution account can safely be accepted, and, within that accepted account, what particular act can be attributed to the appellant beyond reasonable doubt. In our view, those questions cannot properly be answered by beginning with the statements of the witnesses in isolation. An occurrence of this nature has a setting, a beginning and a course of development. The place where the parties met, the reason for their presence there, their respective positions, the physical traces left behind, the injuries sustained and the manner in which the prosecution subsequently attributed those injuries to particular accused are all parts of the same story. This Court must first understand that story as a whole and then

ask how much of it the evidence permits it to accept. The site plan prepared by the Investigating Officer at the pointing out of the complainant provides an important starting point. It shows the respective positions attributed to the deceased, the injured, the accused and the witnesses, together with the places from which different empties were recovered. The houses of the complainant and the deceased are situated close to the place of occurrence, whereas the houses of the accused are not in its immediate vicinity. This circumstance does not, by itself, establish either aggression or innocence. It does, however, invite a question which cannot lightly be passed over: what brought the parties together at that particular place and what transpired between them before the firing began?

6.The prosecution case, as set out in the FIR, is that an initial altercation took place and thereafter the accused came armed and started firing. If that is how the occurrence developed, the intervening part of the story

becomes important. The evidence should tell us, with reasonable clarity, between whom the initial altercation took place, what occasioned it, who participated in it, whether the parties separated thereafter, and in what circumstances the accused allegedly returned armed. These are not minor details. They concern the genesis of the occurrence and may ultimately determine whether the firing was the execution of a prior design or the violent culmination of a confrontation which developed at the spot. The material concerning the thoroughfare assumes significance in this context. It appears to have been under construction or newly constructed, and a log had been placed over it so that it could not be used while the concrete was setting. The evidence does not establish that it was intended exclusively for the complainant party rather, its use appears to have been associated with the accused and other villagers as well. A dispute over its use thus provides a plausible reason for the parties to have assembled there. But beyond that point, the evidence becomes less certain. The prosecution

has not satisfactorily explained the precise manner in which that dispute developed into the firing in question. The physical evidence at the spot does not completely resolve the difficulty. Three empties of .30 bore bore were recovered from the place attributed to the appellant, while 06 empties of 7.62 bore were recovered from the place attributed to the absconding co-accused. 02 empties of 9mm were also recovered from point K, but no accused was connected with them. Two mobile phones were found at the place of occurrence, neither of which was claimed by either party.

Two motorcycles were likewise recovered, but their ownership or connection with either side remained uncertain and they were subsequently released on superdari. We do not attach a disproportionate significance to any one of these circumstances. An unclaimed article at an occurrence may sometimes have no bearing upon the guilt or innocence of an accused. But the Court is not required to look at circumstances one at a time and then forget them. Their value may emerge from their

combined effect. Here, several matters remain unexplained at precisely the point where the Court is trying to understand the manner in which the confrontation began and the persons who participated in its different stages. They do not prove an alternative version; they simply make it unsafe for the Court to supply the missing portions of the prosecution story by inference alone. The injuries provide another important part of this picture. One member of the complainant party sustained a lacerated injury which was not caused by a firearm. That circumstance does not, by itself, establish who was the aggressor. It is nevertheless consistent with the possibility that there was physical engagement between the parties. The prosecution was required to explain how such physical engagement fitted into the occurrence which it alleged to have commenced with the arrival of armed accused.

That explanation is not found with the clarity one would ordinarily expect if the entire sequence had been witnessed and remembered in the precise manner later suggested.

7.It is at this stage that the ocular account must be examined. PW-10, the complainant, narrated the occurrence and explained the presence of the deceased and the injured persons. PW-11 and PW-12, being injured witnesses, supported him in material respects. Their presence at the place of occurrence and the fact that they sustained injuries are not seriously in doubt and receive support from the medical evidence. We therefore have no reason to discard the occurrence merely because some portions of the testimony require closer scrutiny. But there is an important distinction which must not be lost sight of. Proof that a person was present and injured is not synonymous with proof that a particular accused caused that particular injury. The first may be established by the testimony of the injured witness and the medical evidence; the second requires a further evidentiary connection. In a violent occurrence involving several persons and several shots, that distinction becomes particularly important.

The FIR attributed firing generally to the

appellant and the absconding co-accused.

During the course of evidence, however, more specific roles were assigned in relation to particular injuries. It is, of course, correct that an FIR is not expected to contain every minute detail of an occurrence. An omission, therefore, cannot automatically be converted into a contradiction. But where a later detail concerns the very act upon which individual criminal responsibility depends, the Court must examine with care whether it represents a natural clarification of the earliest version or an attribution which subsequently developed as the prosecution case took shape. The witnesses are broadly consistent regarding the place and time of the occurrence. That consistency supports the factum of the occurrence, but it does not necessarily answer the question of individual responsibility. A witness may be perfectly certain that an occurrence took place at a particular place and time and yet be unable to say with the same certainty whose shot caused a particular injury. The Court must therefore keep these two inquiries separate.

The evidence of PW-11 Mukhtiar Ali illustrates the point. He was himself injured and his presence is accordingly supported by an objective circumstance. Yet the versions attributed to him under Section 161 CrPC disclose variation regarding the attribution of his injury to the appellant. His testimony can, therefore, be relied upon for what it reliably establishes, but the particular role attributed to the appellant requires support from the remaining evidence. The evidence of Sanaullah presents an even more substantial difficulty.

He could not state with certainty whose firing caused the injuries sustained by himself, the deceased or the other injured person. His testimony thus supports the occurrence and the fact of firearm injuries, but it does not supply the certainty necessary to identify the appellant as the author of his particular injury. The medical evidence does not cure that deficiency.

It establishes the nature and consequences of the injuries, including the fatal firearm injury suffered by the deceased and the firearm injuries suffered by the injured witnesses. But

medical evidence tells the Court what injury was caused; unless supported by connecting circumstances, it does not tell the Court which accused caused it. The distinction is particularly important in a case where several firearms appear to have been used or at least several types of empties were recovered from the scene. The three empties of .30 bore recovered from the place attributed to the appellant undoubtedly constitute incriminating material. They cannot simply be brushed aside.

Yet they prove no more than what the evidence legitimately permits them to prove. They connect firing with the place attributed to the appellant; they do not, without further evidence, establish that every shot fired during the occurrence came from him or that every injury sustained by the complainant party was necessarily attributable to him. The evidence thus gradually brings the case into focus. The prosecution has proved that a serious firearm occurrence took place. It has proved the death and the injuries. It has established the presence of the witnesses and, to a substantial extent, the

participation of the appellant. What has not emerged with the same clarity is the complete sequence of the occurrence and the responsibility of the appellant for every individual injury attributed to him. This distinction becomes more significant when the fate of the remaining accused is considered.

Nine accused were nominated, but five were acquitted by the learned trial Court. Their acquittal does not, of course, establish the innocence of the appellant. Each accused must stand or fall upon the evidence against him.

But once a substantial portion of the alleged group participation has not survived judicial scrutiny, the Court cannot continue to treat the original collective narrative as an established fact and then use it to fill the gaps in the evidence against the appellant. If the prosecution case was that a group had come together with a settled design to launch an armed attack, one would naturally expect the evidence to reveal that design through the conduct and individual acts of those alleged participants. The acquittal of five nominated

accused does not make such proof impossible, but it makes the duty of the Court to examine the role of the appellant all the more important.

Criminal liability cannot rest upon the numerical strength of an original accusation.

At this point, the different strands of the evidence converge. The genesis has not been satisfactorily unfolded. The alleged transition from an initial altercation to the armed return of the accused remains unexplained. Physical evidence at the scene is not wholly attributable to the persons nominated. There is a non- firearm injury consistent with physical engagement. Five nominated accused have been acquitted. The general attribution in the FIR subsequently became more specific. And, in respect of injury caused to Sanaullah, the injured witness himself cannot say whose firing caused it. None of these circumstances, standing alone, would necessarily be sufficient to reject the prosecution case. The question is what they collectively do to the reliability of a particular attribution. In our view, they create a material uncertainty as to whether the appellant

caused injury to Sanaullah. That uncertainty is not minor. It lies at the very heart of individual criminal responsibility. The approach we have adopted finds support, at this mature stage of the reasoning, in “Muhammad Ashraf alias Nikka v. The State”, (2022 SCMR 1328). In that case, the Supreme Court was dealing with a prosecution narrative involving several accused where the manner of occurrence and the roles attributed to different persons could not safely be treated as one seamless account.

The Court noticed the deficiencies in the prosecution version and, rather than allowing the collective accusation to determine the fate of the individual accused, examined the particular act proved against him. The case was ultimately treated under Section 302(c) PPC.

The value of that decision here is not that its facts are identical to ours. They are not. Its importance lies in the method of judicial scrutiny. Where an occurrence involving several persons has not been fully explained, the Court must resist the natural temptation to complete the narrative for the prosecution. It

must take the evidence as it stands, retain what it proves and stop where proof ends. That is precisely what the present record requires.

Applying that approach to injuries caused to Sanaullah, we find that the prosecution has not established beyond reasonable doubt that the appellant caused it. The witness himself was unable to identify the source of the firing with certainty; the medical evidence proves the injury but does not identify its author; and the subsequent attribution to the appellant does not receive sufficient independent support from the earliest version and the physical circumstances.

The appellant is therefore entitled to the benefit of doubt in respect of that injury. The position regarding the injuries caused to Mukhtiyar Ali is different. When the evidence concerning that injury is considered independently, there is sufficient material connecting the appellant with the act attributed to him. The weakness in the prosecution evidence regarding Sanaullah's injury cannot be mechanically transferred to the injuries caused to Mukhtiyar Ali. The Court is not required to reject a proved act

merely because another alleged act arising from the same occurrence remains doubtful.

8.As regards the allegation of

ineffective firing upon complainant Jehangir Khan, Shad Ali and Zahir, the prosecution case, when examined in the light of the ocular account and the surrounding circumstances, does not inspire confidence to the extent of the alleged firing upon these three witnesses.

Although the prosecution has attributed the effective firing resulting in the death of deceased Saleem and injuries to Mukhtiar Ali and Sana Ullah to accused Noman and co- accused Sakhawat Shah, the allegation that accused Noman also fired upon complainant Jehangir Khan, Shad Ali and Zahir, though they remained unhurt, is not supported by any independent or convincing piece of evidence.

Of particular significance is the fact that none of these alleged targets sustained any injury as a consequence of the purported firing. More importantly, the prosecution has not brought on record any tangible evidence, connecting accused with such alleged ineffective firing.

The mere assertion that shots were fired towards the complainant and the other uninjured witnesses, without any

corresponding physical evidence or other independent corroboration, cannot, in the circumstances of the case, be treated as sufficient to sustain a finding of guilt beyond reasonable doubt. The matter assumes further significance in view of the material improvements appearing in the ocular account.

The prosecution witnesses introduced specific roles and details at the stage of their statements before the Court which were either absent from, or materially different from, the earliest version contained in the murasila and FIR.

Where the ocular account itself suffers from material exaggerations, the allegation of ineffective firing, unsupported by any physical or independent corroborative evidence, requires a cautious approach. It is pertinent to mention that the complainant Jehangir Khan, Shad Ali and Zahir admittedly remained unhurt. The prosecution has not established through reliable evidence the number,

direction, place of impact or other circumstances of the alleged shots fired towards them. In the absence of such supporting material, it would be unsafe to hold that the alleged ineffective firing was in fact made by accused. Thus, the prosecution has failed to establish beyond reasonable doubt the specific allegation of ineffective firing by accused towards complainant Jehangir Khan, Shad Ali and Zahir. Consequently, to this extent, the prosecution has failed to discharge its burden. The accused Noman is, therefore, entitled to the benefit of reasonable doubt therefore, the accused Noman is acquitted of the said charge.

9.This is, in our view, the point at which the case must move from the question “who caused which injury?” to the separate legal question “what is the legal character of the act which has been proved?” Section 302(c) PPC is not simply a provision for reducing a sentence after a conviction has otherwise been established under a more serious category. Its application depends upon

the circumstances in which the homicidal act was committed. The Supreme Court explained the statutory relationship in “Ali Muhammad v. Ali Muhammad and another”, (PLD 1996 SC 274), holding that the cases falling within the exceptions to the erstwhile Section 300, PPC, read with the old Section 304, were the cases intended to be dealt with under the present Section 302(c) PPC. The central idea is therefore to examine the circumstances surrounding the act, including the presence or absence of premeditation and the character of the confrontation. That principle acquires meaning only when applied to the life of the present occurrence. We have already found that the prosecution has not satisfactorily established a prior design pursuant to which the appellant and the other accused came to the place to execute a planned attack. The genesis lies in a dispute concerning the thoroughfare.

The alleged initial altercation has not been satisfactorily explained. The physical circumstances suggest the possibility of an immediate confrontation. The collective

prosecution narrative has been substantially weakened by the acquittal of five accused. And the evidence does not furnish a coherent account of a settled plan which preceded the firing. The Supreme Court's reasoning in “Muhammad Abbas and another v. The State”, (2023 SCMR 487) is instructive in this regard. There, although the prosecution evidence was sufficient to sustain the conviction, the Supreme Court separately considered the circumstances in which the occurrence had arisen. It noted that the incident had taken place at the spur of the moment, without premeditation, after something immediately preceding the occurrence had provoked the accused, and treated the case under Section 302(c) PPC. The significance of the authority is not the sentence awarded in that case. It is the manner in which the Court distinguished the fact of homicide from the circumstances which give that homicide its legal character. The same distinction is required here. The death and the proved act of the appellant cannot be denied merely because

the occurrence was sudden and incompletely explained; but the uncertainty surrounding its genesis and the absence of established premeditation cannot be ignored when determining the applicable clause of Section

302.We are conscious that not every sudden confrontation falls within Section 302(c), nor does absence of a proved motive necessarily establish absence of premeditation. The matter must always be determined from the circumstances of the particular case. Here, however, the evidence, taken as a whole, does not enable us to reconstruct a settled and pre- arranged design. What emerges instead is a confrontation which developed at the place of occurrence, escalated into firing, and resulted in death and injuries, with the individual acts of the participants requiring careful separation.

We therefore, find that the homicidal act proved against the appellant falls within Section 302(c) PPC. This conclusion is not founded upon sympathy, nor upon any desire to minimize the seriousness of the occurrence.

It follows from the evidentiary picture which

has emerged after the case has been examined from its beginning: the genesis is uncertain; the complete sequence is not established;

collective participation has not survived in its original form; premeditation has not been proved; yet the individual act of the appellant, to the extent discussed above, has been established. There is a temptation in cases of serious violence to allow the gravity of the consequence to draw all the evidence towards one conclusion. The Court must resist that temptation. The loss of a human life demands seriousness from the Court, but seriousness does not mean that uncertainty should be converted into certainty. On the contrary, the more grave the consequence, the more carefully must the Court preserve the distinction between what the evidence establishes and what it merely suggests. We consequently find that the prosecution has failed to establish, beyond reasonable doubt, the responsibility of the appellant for causing injuries to Sanaullah and for ineffective firing upon the complainant. Jehangir Khan, Shad Ali

and Zahir. In that respect he is entitled to acquittal by extending to him the benefit of doubt. The evidence, however, sufficiently establishes his responsibility for the injury caused to Mukhtiyar Ali, and that finding remains unaffected by the uncertainty attending the other injury. The case thus does not require an all-or-nothing answer. The occurrence is proved; every detail of its genesis is not. The participation of the appellant is proved; every act attributed to him is not. One injury is sufficiently connected with him;

another is not. The entire genesis of the occurrence has been scrutinized in detail. The participation of the appellant in the occurrence is established, and the acts specifically attributed to him are discernible from the evidence. Yet, while one injury stands sufficiently connected with his role, the other cannot safely be attributed to him. This distinction assumes particular significance when the prosecution witnesses, rather than allowing the evidence to unfold in its natural course, appear to have made every effort to

shift the focus away from the surrounding circumstances and the roles of the co-accused and to concentrate it upon the appellant. Such conscious shifting of the evidentiary focus cannot be brushed aside, particularly where the prosecution case appears to have been moulded around maintaining that focus so as to overcome the difficulty created by an injury which, on closer scrutiny, could not satisfactorily be connected with the appellant.

Once the prosecution itself chose to depart from the path which it had initially trodden, it necessarily assumed the consequences of that departure. What emerges thereafter is not merely an isolated discrepancy, but an uncertainty permeating the factual narrative, coupled with legal complications arising from the charge as framed and an apparent shifting of the evidentiary focus. These circumstances, when viewed cumulatively and against the standard required for sustaining a criminal conviction, assume decisive significance. The prosecution cannot be permitted to resolve the uncertainty created by its own evidence

through a selective attribution of roles. At this juncture, the balance tilts in favour of the appellant, not because his participation is wholly unproved, but because the prosecution has failed to establish, with the degree of certainty required by law, the precise criminal liability sought to be fastened upon him. The doubt thus emerging is not speculative; it arises from the prosecution account of the occurrence and from the manner in which the roles and injuries have been attributed. Such doubt must necessarily enure to the benefit of the appellant. We are, therefore, inclined to extend to him the benefit of doubt, with the consequence that the conviction cannot safely be sustained. The homicidal act which remains proved is punishable under Section 302(c) PPC, because the circumstances in which it occurred do not establish the premeditated character necessary to place it in the more aggravated category. This, in our view, is the point at which the evidence ends and the law begins. The Court cannot go beyond the evidence to complete the story; nor can it

disregard an act which the evidence has sufficiently established merely because other parts of the story remain uncertain. Criminal responsibility must remain individual, precise and proportionate to proof.

10.For the foregoing reasons, the appeal is partly allowed. The appellant is acquitted, by extending to him the benefit of doubt, to the extent of the injury sustained by Sanaullah as well as for ineffective firing upon Jehangir Khan, Shad Ali and Zahir. His liability in respect of the injury caused to Mukhtiyar Ali is maintained. His conviction under section Section 302(b) PPC is altered to Section 302(c) PPC and the sentence awarded to the appellant is reduced to twelve (12) years rigorous imprisonment. The remaining portion of the judgment of the learned trial Court shall remain intact and operative, except to the extent of the conviction recorded in respect of the injuries caused to Sana Ullah and the allegation of ineffective firing upon complainant Jehangir Khan, Shad Ali and Zahir. Likewise, the appellant shall continue

to be entitled to the benefit of Section 382-B, CrPC and all the sentences shall run concurrently, as already directed by the learned trial Court.

11.The murder reference No. 01-

P/2026 is answered in negative.

12.Now diverting to Criminal

Appeal No. 87-P/2026 titled “Jehangir Khan Vs the State & others”, whereby the appellant/complainant has challenged the acquittal of respondents/accused Momin Shah, Ikram Shah, Imtiaz Ali, Jawad Ali Shah and Bahadur Shah, this Court has carefully examined the entire record with particular reference to the ocular account furnished by the prosecution witnesses. Record reveals that the role attributed to the respondents/accused in the FIR is confined to their alleged presence at the place of occurrence while being armed.

Significantly, no specific act of firing was attributed to any of them rather, the actual firing, which allegedly resulted in the death of deceased Saleem and caused firearm injuries to the injured witnesses, was specifically

attributed to accused Noman and Sakhawat Shah, the latter being an absconding accused.

This distinction assumes considerable significance when the evidence is examined against the respondents/accused. A careful scrutiny of the ocular account further reveals material and substantive improvements in the statements of PW-10, PW-11 and PW-12. The complainant while appearing as PW-10, did not furnish any consistent and confidence- inspiring account assigning a specific act to the respondents/accused. Likewise, PW-11, an injured eye-witness, introduced material facts before the learned trial Court which were absent from the record. In particular, he subsequently alleged that accused Bahadur Shah exhorted the assailants Noman and Sakhawat Shah, to kill the complainant party.

Such an allegation of exhortation, being of substantive nature and capable of fastening criminal liability upon the accused, assumes significance, yet its absence from the earliest version of the occurrence materially detracts from its credibility. PW-11 further sought to

attribute specific roles to accused Noman and Sakhawat Shah regarding the death of Saleem and the injuries sustained by the injured witnesses. These subsequent embellishments, when considered in juxtaposition with the contents of the murasila and the FIR, show that the ocular account was not consistent from its inception and that material particulars were introduced at a later stage. Such improvements cannot be treated as inconsequential discrepancies, particularly where they relate directly to the attribution of criminal liability.

The testimony of PW-12 Sana Ullah, another injured eye-witness, suffers from a similar infirmity. To the extent of the respondents/ accused, he made a material improvement by stating before the Court that accused Bahadur Shah and the other respondents/accused, namely Momin Shah, Ikram Shah, Imtiaz Ali and Jawad Ali Shah, had ordered Noman and Sakhawat Shah to open fire upon the complainant party. This assertion, however, finds no mention whatsoever in the murasila or the FIR, which constituted the earliest version

of the prosecution regarding the occurrence.

The omission of such a significant allegation from the earliest account cannot be brushed aside as a mere discrepancy, particularly when the prosecution subsequently seeks to rely upon it for connecting the respondents/accused with the commission of the offence. It is a settled principle of criminal jurisprudence that an improvement which is material, deliberate and directed towards strengthening the prosecution case cannot be lightly ignored.

Where a witness introduces a new role or an incriminating circumstance at the stage of recording evidence, which was absent from the earliest version, such subsequent embellishment necessarily calls for cautious scrutiny. The Court must distinguish between a minor discrepancy arising from normal human fallibility and a material improvement designed to supply a missing link in the prosecution case. The documentary and circumstantial evidence also fails to provide the requisite corroboration to the improved ocular account.

The site plans do not disclose any specific role

played by the respondents/accused in the occurrence. There is also no recovery of any incriminating article or material from their respective places which could furnish independent corroboration of their alleged participation. More importantly, no convincing material has been brought on record to establish that these respondents/accused either facilitated the principal assailants or rendered any assistance in the commission of the offence. The allegation that they were present at the spot and were helping or facilitating the principal assailants, therefore, remains a general assertion unsupported by independent or corroborative evidence. It is also significant that mere presence at the place of occurrence, even if assumed for the sake of argument, would not by itself establish participation in the commission of the offence unless the prosecution succeeds in proving, through reliable evidence, the requisite role, common intention, common object, or other legally recognizable nexus with the crime. In the present case, the prosecution has failed to

bridge that evidentiary gap. The actual act of firing was attributed to Noman and Sakhawat Shah, whereas the respondents/accused were sought to be connected with the occurrence primarily through subsequent improvements introduced by the ocular witnesses. The cumulative effect of these circumstances is that the prosecution case, insofar as the respondents/accused are concerned, is attended by serious infirmities. The material improvements in the ocular account, the absence of the alleged exhortation from the earliest version, the lack of any specific overt act in the FIR, the absence of incriminating recovery, and the failure of the prosecution to establish their participation, assistance or facilitation, collectively create reasonable doubt regarding their involvement in the occurrence. It is the burden duty of the prosecution to establish the guilt of an accused beyond reasonable doubt. Where a reasonable doubt arises from the prosecution evidence itself, the accused is entitled to its benefit as of right and not as a matter of grace or

concession. A single circumstance creating reasonable doubt is sufficient to entitle an accused to its benefit, whereas in the present case, the record furnishes more than one circumstance which renders the prosecution case doubtful against the respondents/accused.

13.In view of the foregoing

discussion, this Court is unable to find any legally sustainable basis for interfering with the acquittal of respondents/accused Momin Shah, Ikram Shah, Imtiaz Ali, Jawad Ali Shah and Bahadur Shah. The acquittal of the respondents/accused recorded by the learned trial Court is well-founded and calls for no interference. The impugned judgment, to that extent, is accordingly maintained. The instant Criminal Appeal No. 87-P/2026 titled “Jehangir Khan Vs the State & others”, being bereft of merit, is dismissed.

Announced

JUDGE

JUDGE

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