Tauseef & 02 others Vs The State & another

Judgmcnt Shcet

PESHAWAR HIGH COURT I}ANNU T}ENCH

(Judicial Department)

Cr. A No.170-B of2022

'l'ausecf & 2 others Vs.

'l'hc State & another.

JADGMENT

lior Appellants: Mr. Salahuddin Marwal, AdvoeAlq l,or ltespondcnts Mr. Masood Adnan Advocalc lior Stalc: Sardar Muharnmad Asi Asstt: AG.

l)atc of hcaring: 08.3.2023.

SAHIBZADA A ULLAH J.- 1'hc appellants have callcd in qucstion thc judgment dated07.9.2022, rcndcrcd by lcamcd Additional Scssions Judgc-lll, Lakki Marwat, whcrcby thc appcllants wcrc convictcd, undcr scction 302(b) P.P.C. and scntcnccd to imprisonment for lifc on two counts as taazir with linc olRs. 10,00,000/- cach as compcnsation to thc lcgal hcirs ol'thc dcccascd in tcrms ol' scction 544-A Cr.P.C, or in dcfault thcrcof to further undergo six months simple irnprisonmcnt. Undcr scction 324 P.lt.C thc appcllants wcrc convictcd and scntcnccd to imprisonmcnt for two ycars S.l along with paymcnt of compcnsation of I{s.5,000/- cach, to bc paid to thc injurcd/complainant and in dcfault thc appcllants shall lurthcr undcrgo l5 days S.l. lJndcr scction 337-A(i) P.P.C, the appcllants wcrc convictcd and scntcnccd lbr

imprisonmcnt to onc monlh and also liablc to paymcnt of sum ol' I{s.5000/- as "I)aman", cach to bc payablc to injurcd/complainant or in dclault olpaymcnl thcrcol to furthcr suffcr 15 days S.l. Ilenefit of section 382-I] Cr.P.C was cxtcndcd in lavour ol convict/appcllants.

'l'hc complainanl, Nadir Khan movcd criminal rcvision pclition No.47 -812022 for cnhanccmcnl of scntcnce ol' appcllanls. Sincc both thc mattcrs havc ariscn out of thc sar.nc j udgmcnt, thcrcforc, wc intcnd to dccidc thc samc through this common judgmcnt.

., Ilricl lacls of the casc as pcr contcnts of I.l.It arc that on 02.6.2017, at 2l:30 hours, injurcd/complainant bcing prcscnl with dcad bodics ol his son Abbas Khan and ncphcw Dil Jan, rcportcd to policc that his niccc Mst. Shamshada Ilibi was married to 'l'ausccL Somc thrcc months ago, relation bctwccn thc spouscs bccamc straincd. On thc cvcntful day, hc along with his son Abbas Khan and ncphcw Dil Jan wcrc going to thc housc ol his niccc, situatcd at Ghulam Khcl Adanr.ai, in ordcr to concilialc thc ma11cr. on rcaching ncar thc housc of 'l'ausccf, at about l8:45 hours, 'l'ausccl, Mohibullah sons of Nawaz Khan, Muhammad Nawaz son of Mir Ghallar and Sikndar son ol Muzallar, duly armcd wilh Kalashnikovs, camc out from Ilaitak ol' 'l'ausccl'and on sccing thc complainant party, all thc accuscd startcd firing at thcrn

with thc intcntion to kill. Rcsultantly, Abbas Khan and Dil Jan got hit and lcll down on thc ground whilc hc rcccivcd injury on his hcad. Accuscd aflcr commission o[ the olfcncc dccampcd liom thc placc of incidcnt. Motivc has bccn discloscd as disputc ovcr womcnfolk, hcncc thc ibid Ir.l.R.

4 Alicr complction ol invcstigation, prosccution subrnittcd challan against thc accuscd lor trial. Altcr compliancc o[ provisions of scction 265-C Cr.P.C, chargc was framcd against thc accuscd/appcllants undcr scctions 30213241337-A(iy34 P.P.C to which thcy plcadcd not guilty and claimcd trial. I)uring thc coursc oltlial, accuscd Sikandar Khan mct his natural dcath and in this rcspcct Jail Supcrintcndcnt lurnishcd his rcporl vidc ordcr shcct datcd 24.9.2019, as such procccdings against accuscd Sikandar Khan wcrc abated. 'l'hc prosccution in support ol its casc produccd as many as I I witncsscs. On closc of prosccution cvidcncc statcmcnts of accuscd was rccordcd undcr scction 342 Cr.l'.C, whcrcin thcy prolesscd innoccncc and falsc inrplication, howcvcr, ncithcr thcy optcd to bc cxamincd on oath as providcd undcr scction 340(2) Cr.l'}.C, nor wishcd to producc dclcncc cvidcncc. Altcr hcaring argurncnts, thc lcarncd trial Court vidc impugncd judgmcnt datcd 07.9.2022, scntcnccd thc accuscd /appcllants as mcntioncd abovc, hcncc, thc instant appcal against the judgmcnt olconviction

5 Wc havc hcard lcarncd counscl lor thc partics alongwith lcarncd A.A.G lor thc Statc at lcngth and wilh thcir valuablc assistancc, thc rccord was gonc through.

6 'l'hc tragcdy claimcd thc livcs ol two innoccnt pcrsons and lcd to an injury to thc complainant. 'l'hc cornplainant along with dcad bodics was shiftcd to thc hospital whcrc thc mattcr was rcportcd and thc appcllants wcrc chargcd Iilr thc dcath ol'thc dcccascd and thc injury causcd to thc complainant. Allcr rcport ol thc complainant thc injury shcct (- and inqucst rcports along with injury shcct olthc complainant wcrc prcparcd and thcrcaftcr thc complainant was rclcrrcd to thc doctor lor his mcdical cxamination, who was cxamincd by thc doctor and his mcdico-lcgal ccrtificatc was prcparcd. 'l'hc dcad bodics wcrL' scnt kr thc doctor and thc doctor conductcd autopsy on thc dcad bodics. 'l'hc invcsLigating officcr aftcr rccciving copy ol thc I.l.R visitcd thc spot, but thc spot procccdings could not bc conduclcd as by thcn, thc complainant was no1 availablc. It was on thc ncxt datc i.c.

03.6.2017 whcn thc sitc plan was prcparcd on thc pointation of lhc complainant. I)uring spot inspcction thc invcstigating olllccr collcctcd blood staincd carth lrorn thc rcspcctivc placcs ol' lhc dcccascd and 2 I cmptics ol 7 .62 borc lying scattcrcd, li'om thc placcs ol'thc accuscd. It is pcrtincnt to mcntion that on thc samc day, two out of thc accuscd also rcccivcd firc ann

injurics, who wcrc shiftcd to thc samc hospital, whcrc out of thc injurcd accuscd Mohibullah rcpoltcd thc mattcr in rcspcct ol thc injurics causcd to him and to his co-accuscd Sikandar.

Iloth thc injurcd wcrc cxamincd by thc doctor and thcir rncdico-lcgal ccrtificatcs wcrc prcparcd. 'l'hc rcport madc by thc accuscd Mohibullah was incorporatcd in LI.R No.197, whcrc Nadir, Sharilullah son of Mumraiz, Dil Jan son of Sharilullah and Abbas son <lf Nadir wcrc chargcd lor thc injurics causcd. It is intcrcsting to notc that thc copy ol |.1.R No. 197 was also rcccivcd by the invcstigating officcr, who was prcscnt on thc spot in conncction with thc invcstigation of casc l;.1.R No. 196. During spot inspcction in casc I;.I.R No. 197, thc invcstigating officcr collcctcd l5 cmptics of 7 .62 borc liom thc placcs assigncd to thc accuscd and also collcctcd blood staincd carth from thc placcs, whcrc thc injurcd al1cr rccciving firc arm injurics, lell down. On onc hand thc injurcd/ complainant of case l.l.ll No. 197 was takcn into custody along with injurcd Sikandar in thc hospital whcrcas, complainanl of casc I.l.R No. 196 was also arrcsted in case lr.l.lt Nol97. It is pcrtincnt to mcntion that on thc day ol incidcnt i.c. on 02.6.2017 thc accuscd/ appcllant 'l'ausccl, who was scrving in policc dcpartmcnt attachcd with Ilomb Disposal Squad, was arrcstcd and was confincd in quartcr guard of thc I)olicc l.incs. 'l'hc rccord lurthcr tclls that on 03.6.2017 thc

olficial Kalashnikov bclonging to thc accuscd 'l'ausccf was takcn out lrom his box by onc Shcr Nawaz Khan ASI and thc samc was handcd ovcr to thc inchargc IIDS who dcpositcd thc samc in thc Koth and was handcd ovcr to thc invcstigating olficcr on 14.6.2017.11 is intcrcsting to notc that invcstigating olficcr addrcsscd an application to thc I)ircctor Gcncral lrorcnsic Scicncc Laboratory on 14.6.2017, asking an opinion rcgarding thc rcc<lvcrcd wcapon and thc collcctcd cmptics, but thc samc wcrc rcccived to thc laboratory on 06.7.2017.'l'hc laboratory rcport was rcccivcd whcre ou1 of 2l cmptics, I I wcrc shown to havc bccn fircd from thc rccovcrcd wcapon, whcrcas thc rcmaining wcrc discloscd to havc bccn fircd from difl'crcnt wcapons. All thc accuscd cxccpt thc accuscd Sikandar, as hc dicd during trial, aftcr thcir arrcst faccd thc trial and on conclusion of thc trial, thcy wcrc convictcd and scntcnccd, fccling aggricvcd thc instant criminal appcal.

7 'l'ruc that in thc incidcnt two pcrsons lost thcir livcs and thc complainant got injurcd, but cqually truc that lrom thc othcr sidc too, two rcccivcd firc arm injurics on thc vital pafls of thcir bodics and in such cvcntuality, it is csscntial Ibr l"his Court to scc as to whcthcr thc incidcnt occurrcd in thc modc, manncr and at thc statcd timc and as to whcthcr both thc sidcs camc lorward with thc whole truth. 'l'ruc tha( thc lcamcd trial Court dcalt with thc mattcr comprchcnsivcly and that allcr

application of its judicial mind convictcd thc accuscd chargcd, but it is cqually truc that this bcing thc Court olappcal is undcr thc boundcncd duty to rcvisit thc rccord ol thc casc and to rc- apprcciatc thc alrcady apprcciatcd cvidcncc, so that m iscarriagc of justicc could bc avoidcd. As the incidcnt occurrcd in front of thc housc of thc convict/appcllants, whcrc thcy too got scriously injurcd, so thc atlcnding circumstanccs ol' thc prcscnt casc has incrcascd both, thc anxicty and obligation of this Court to go dccp to thc roots of thc prosccution's casc, so that miscarriagc of justicc could bc avoidcd.

ti 'l'hc lcarncd trial Court whilc handing down thc impugncd judgmcnt dcalt with thc mattcr comprchcnsivcly and that it was mostly, thc placc ol' incidcnt, thc motivc and thc injurics causod to thc complainant which pcrsuadcd it to convict, but at thc samc timc littlc attcntion was paid to thc injurics causcd to two of thc accuscd/appcllants and thc attcnding circumstanccs of thc prcscnt casc. In ordcr 1o gain clarity, wc dccm it csscntial to scan through thc rccord oncc again; and to dig out as to whcthcr thc approach of thc lcarncd trial Courl was corrcct; and that thc hnding rcndcrcd down was in accordancc with law and finds support lrom thc cvidcncc on rccord.

tt

9 In ordcr to comprchcnd thc circumstanccs of thc casc, wc dccrn it csscntial to go through thc intcr-sc rclationship bctwccn thc partics. lt is on rccord that two nicccs of thc complainant, who happcncd to bc thc sistcrs of onc of thc dcccascd, wcrc marricd in thc housc of thc convict/appcllants i.c. onc Shamshada Ilibi was marricd to thc convict/ appcllant 'l'ausccf whcrcas anothcr to his brothcr in thc samc housc. It is thc casc of thc prosccution that owing to strain rclationship bctwccn 'l.ausccf and his wifc, thc complainant party was compclled to go and cffcct a compromisc bctwccn thc spouscs and that on rcaching to thc placc of incidcnt thc tragcdy occurrcd, whcrc thc dcccascd lost thcir livcs and thc complainant got injurcd. As in thc samc incidcnt two lronr thc accuscd sidc rcccivcd scrious injurics on thc most vital parts of thcir bodics, so thc qucslion which nccds dctcrmination at thc carlicst is, as to what wcrc thc actual circumstanccs which lcd both thc sidcs to thc usc of lcthal wcapons and that in what lashion thc incidcnt occurrcd.

Wc at this juncturc arc not in a happy mood to hold that somc of thc accuscd wcrc not prcscnt on thc spot, as scat of injurics on thc convict / appcllants is a circumstancc which tclls that thcy wcrc prcscnt on thc spot at thc timc of incidcnt, but what conccrns us, is that whal promptcd thc partics to firc on cach othcr which put both thc sidcs in troublc.

10.'l'o bcgin with, wc would likc to go through thc stalcmcnl ol'thc complainant who appcarcd bcforc thc trial Court as PW-6. 'l'hc complainant statcd that on thc day of incidcnt hc along with dcccascd lclt thcir house to the villagc of thc accuscd to cffcct a compromisc bctwccn thc accuscd 'l'ausccf and his wi[c, as thc convict/ appcllant 'l'ausccf had contractcd sccond marriagc which turned to be thc basis of straincd rclationship bctwccn thc spouscs; that soon thcy rcached ncar thc housc of thc accuscd, all thc accuscd duly armcd, starled firing at thcm which lcd to thc dcath of thc dcccascd and injury to thc complainant; that aflcr rccciving firc arm injury, hc and thc dcad bodics wcrc lying on thc ground and that it was altcr 40 minutcs of thc incidcnt thal cots wcrc arrangcd, thc dcccascd wcrc shiftcd and on availability of Datsun/pick-up, thc dcad bodics and thc complainanl wcrc shiftcd to thc hospital, whcrc thc mattcr was rcportcd. It is intcrcsting 1o notc that thc cornplainant, right lrom thc bcginning till thc cnd, maintaincd silcncc rcgarding thc injurics causcd to thc accuscd and whilc rcporting thc mattcr, hc supprcsscd this malcrial aspcct ol'1hc casc. lirom thc spot 21 cmplics of 7 .62 borc wcrc collcctcd lrom thc placcs ol convicts/appcllants and blood staincd carth lrom placcs olthc dcccascd, but also in thc counlcr casc i.c. |.1.R No. 197, 15 cmptics were

collcctcd lrorn thc placcs assigncd t<l thc complainant and thc dcccascd and blood staincd carth from thc placcs of thc injurcd, which indicatcs that if on onc hand two persons lost thcir livcs and thc complainant rcccivcd injurics, thcn on thc othcr two accuscd also rcccivcd scrious injurics on thcir bodics. In ordcr to substantiatc this particular aspcct of thc casc, wc wcnt through thc statcmcnt ol thc invcstigating ofllccr. 'l'hc invcstigal.ing officcr was cxamincd as I)W-8, who statcd that aflcr rccciving copy of thc F.I.R he visitcd thc spot, but could not prcparc thc sitc plan as thc complainant was not availablc; that on thc vcry ncxt day on thc availability of thc complainant hc prcparcd sitc plan and cll'cctcd thc rccovcrics from thc spo1. 'l'his witncss lurthcr conl'irms that on thc samc day hc also prcparcd thc sitc plan in casc Ir.l.lt No. 197 and that rccovcrics wcrc also cffcctcd and in that rcspcct lhc rccovcry mcmos wcrc prcparcd. 'l'hc invcstigating olljccr was catcgoric in holding that both thc cascs arc the cross-cascs. 'l'hc invcstigating officcr was cxamincd on matcrial aspccts of thc casc, morc particularly, thc arrival ol'thc complainant party to thc spot and thcir activc participation in firing. 'l'hc invcsligating officcr admittcd that thc complainanl sidc camc to thc spot duly armcd and that lrom thcir firing two of thc appcllants rcccivcd scrious injurics. 'l'hc invcstigating olficcr also

-il-

mcntioncd in thc sitc plan thc rcspcctivc placcs ol thc injurcd/ appcllants, lrom-whcrc blood staincd carth was collcctcd. livcn during spot inspcction thc invcstigating olficcr noticcd bullct marks on thc walls of thc Ilaitak ol accuscd 'l'auscc ['. lt is inlcrcsting to notc that whcn thc complainant was cross-cxamincd hc introduccd anothcr story by disclosing that, hc was told that whcn thc accuscd cornrnittcd thc off'cncc, thcy lcli thc spot and aficr covcring a distancc ol'30 minutcs, rcachcd Kharoba, whcrc his ncphcws wcrc alrcady prcscnt duly armcd, fircd at thcm and that it was lrom thcir firc-shots, thc convicts/ appcllants rcccivcd Iirc arm injurics. IIc furthcr discloscd that nonc of thc appcllants rcccivcd injurics on thc spot and that thcy ncvcr lircd at thc accuscd party. I I wc admit to what thc cornplainant statcd lcgarding thc occurrcncc at Kharoba then, it is lor thc complainanl to convincc, that who in fbrrncd his ncphcws rcgarding thc occurrcncc and thc dccarnping olthc appcllants towards Kharoba. It is of primc importancc to notc that no sitc plan rcgarding thc incident at Kharoba was prcparcd and cvcn thc invcstigating olficcr did not visit thc placc, whcrc allcgcdly l"hc accuscd/ appcllants rcccivcd firc arm injurics. Whcn thc invcstigating oficcr was askcd rcgarding this particular aspcct of thc casc, hc catcgorically dcnicd any incidcnt to havc occurrcd at

-t2-

Kharoba. When such is thc statc of affairs, wc lurk no doubt in rlind in holding that thc complainant has conccalcd thc rcal I'acts. 'l'hc conscious altcmpt ol' thc complainant to introducc anothcr story rcgarding thc injurics causcd to thc appcllants, clcarly tclls that thc incidcnt did not occur in thc modc and manncr as discloscd by thc complainant. 'l'hc - '- )scribc who was cxamincd as PW-4 statcd that on thc dayof incidcnt hc along with policc constablcs was on Gasht and alicr rccciving inlormation rcgarding thc arrival ol'thc dcad bodics to thc hospital, hc rcachcd to thc hospital, whcrc thc complainant rcportcd thc mattcr;1hat altcr prcparation of thc injury-shcct and inqucst rcport, thc complainant was scnt to thc doctor lor his mcdical cxamination and thc dcad bodics Ibr post mortcm cxamination; that soon thercaftcr thc injurcd/ appcllants wcrc brought to thc hospital whcrc thc convicL/ appcllant Mohib L.lllah rcportcd thc mattcr which was takcn in shapc ol murasila. During cross-cxamination hc admittcd both thc cascs as cross cascs. 'l'hc injured wcrc cxamincd by thc doclor, thcir mcdico-lcgal ccrtificatcs wcrc prcparcd, thc doctor mcntioncd thc duration of injurics on thc bodics ol both thc injurcd from 2 to 3 hours, and whcn th is timc is takcn ln juxtaposition with thc timc ol occurrcncc, it confirms that thc injurcd rcccivcd thc injurics at thc tirnc givcn by thc complainanl in casc lrllt No.l96

1t. Wc arc to dctcrminc that which of thc parties is rcsponsiblc and which no1, and in ordcr to dctcrminc thc rcsponsibilitics of' thc partics conccrncd, wc dccm it csscntial to rc-visit thc motivc and thc purposc of visiting thc placc ol incidcnt by thc complainant and thc dcccascd.

'l'hc rccord tclls that all thc thrcc lcft thcir housc to mcdiatc bctwccn thc spouscs as thcir rclation had lurncd bad and whcn thc statcmcnt of thc complainanl is takcn into considcration, thcrc too. hc discloscd that thc conv ict/appcllant 'l'ausccf had cntcrcd inlo sccond marriagc which turncd to bc thc basis of straincd rclationship betwecn thc spouscs, so thcy visilcd thc placc to scttlc thc dilTcrcnccs. Ilut thc rccord docs not support thc stancc of thc complainant. If thc complainant and othcrs had an intcntion to bring thc spouscs at casc, thcn instcad of lcaving thcir housc a littlc carlicr lirrn brcaking thc last, thcy would havc cithcr waited to brcak thcir fast or would havc gone much carlicr to thc housc of 'l'ausccf to ncgotiatc, but thc hasty lcaving of thcir housc confirms thcir intcnlion and it was bccausc ofsuch a hastc that the unwantcd incidcnt occurrcd.

'l'hc complainant admittcd in his Court statcmcnt thal prior to lcaving thcir housc thcy did not inlbrm 'l'ausccf and his lamily of' thcir arrival to thcir housc, lor thc purposc, but whcn thcy rcachcd to thc placc of incidcnt thcy wcrc fircd

at. 'l'his is still astonishing that whcn convict/ appcllant 'l'ausccf and his lamily wcrc not informcd rcgarding thcir arrival, thcn how on rcaching to thc spot thcy wcrc fircd at, as by that timc ncithcr an altcrcation had lakcn placc bctwccn thc partics nor thc partics sat to scttlc thc diflcrcnccs. If thc motivc is thc onc which has bccn givcn by thc complainant thcn, thc incidcnt did not occur in thc manncr givcn by thc complainant, but what wc can asscss lrom thc attcnding circumstanccs of thc prcscnt casc, is that, that thc partics wcnt in altcrcation, thc siluation wcnt from bad to worsc and thc complainant sidc who was duly armcd startcd firing and as a rcsult thc accuscd party rcsorted to firing as wcll. If thc intcntion was [o ncgotiatc thcn thc complainant would havc visitcd thc spot unarmcd, but thc collcction of cmptics lrom thc placcs ol thc complainant party is anothcr circumstancc which tclls that thc complainant sidc visitcd thc spot with thc s<llc purposc to kill. l.lvcn thc bullct marks on thc walls o[thc l]aitak of thc convicl./ appcllant 'l'ausccf is anothcr circumstancc which clarily thc activc involvcmcnt of thc complainant and dcccascd in liring as wcll. 'l'hc scat o[ injurics on body of thc convict/appcllants confirms that thcse wcrc not sclf inllcctcd. Itight {iorn thc bcginning till thc cnd thc complainant strugglcd hard to makc bclicvc that it was thc

accuscd party who fircd at thcm and thcy ncvcr involvcd in thc cpisodc and that no firing was madc from thcir sidc. 'l'hc complainant was blowing hot and cold in thc same breath, as on one hand hc dcnics thc incidcnt to havc occurrcd in thc manncr as discloscd by the invcstigating officer, whercas on thc othcr, hc admittcd the injurics on thc bodies of thc convict/ appellants, but at the hands of his nephews, away lrom thc placc of incidcnt, but thc rccovcrics of cmptics lrom thc placcs assigncd to thcm and thc blood staincd carth lrom thc placcs ol thc injurcd/ appcllants confirm thcir participation in thc incident, and a circumstance which cannol bc ignorcd. Iirom the attcnding circumstances of the prcscnt casc, this Court is firm in its bclief that both thc sidcs supprcsscd thc rcal facts and consciously attcmptcd to crcate an atmospherc of unccrtainty.

t2. It was argucd from thc complainant's sidc that thc injurics rcccived by thc convict/ appcllants cannot bc takcn in favour of thc dcfencc as in such cvcntuality, it was the obligation of thc dcfcncc to takc a plca from thc vcry bcginning, which it did not and that whcn a plca is not takcn thc Court by itscll cannot apprcciatc that aspcct of thc case.

Wc arc not convinccd with what thc lcarncd counscl lor the complainant submittcd, as thc circumsLanccs ol thc prcscnt casc by itself arc sufficicnt to tell that i1 was thc complainant

sidc who atlractcd to thc spot, duly armcd and that it was thcir this intcntion which led to thc tragcdy, so in such cvcntualily thc possibility cannot bc cxcludcd that it was thc complainant sidc, who went aggressor, that too, by thc time when the fast was y ct to bc brokcn. In casc titlcd "Abdur Rahim Vs. lhe state" (2021 YLR Note 139),it has bccn held that:

"The factum of suppression of real focts of lhe oppellant hy hoth lhe sides, are the circumstances suggesting the act ofJiring by lhe appellant to have been commilted in exercise of his defence, lhe benefit of which can be extended lo him irrespective of the fact lhat he did not specifically take thal plea during lrial. Reliance is placed on case titled "Ghulam Fareed v. The State" (2009 SCMR

929), wherein il has been held lhot:

"The appellant did not raise this plea during trial either in his statemenl under section 342,

Cr.P.C. or al the time when the

proseculion witnesses were subjected lo cross-examinalion.

There is no bar lo raise such plea

despite having nol taken lhe said

plea specilically during trial, and

the court can infer the same from

the evidence led during trial, if the

same is tenable. However, to justdy

such an inference, in favour of the

accused who slands convicted on a

murder charge and sentenced to

death, his conduct during the

occurrence should fall within the

parameters of privale defence, AS

cotliJied in the Pakislan Penal

Code." "

t3. 'l'hc cumulalivc effcct olwhat has bccn discussed abovc, lcads this Court nowhcrc, but 1o hold that thcrc was aggrcssion on part of thc complainanl and that the appellants wcrc to retaliatc. As thc complainant side cxceeded the limits and the accused rcaliz.ed a threat to thcir lives, so in that cvcntuality onc sidc rcceived serious injurics, whereas the othcr got two dcad and one injurcd. 'l'ruc that casualtics lrom onc sidc arc highcr than thc othcr, but it is cqually truc that thcsc arc not thc casualtics which should bc thc dctcrmining factor, rathcr this is thc attitudc of thc partics which must be taken into consideration and as the convicts/appellants too rcccived scrious injurics on thc most vital parts of their bodies,

so wc cannot cxcludc thc possibility that thcy just rctaliatcd to savc thcir livcs. When the two vcrsions rcgarding the samc incidcnt comcs with the twistcd facts, thcn courts are to decide thc gcnuincncss and the same is possiblc only and only when thc atlending circumstanccs of a particular casc arc taken into considcration, whilc applying thc tcst this Court without any hcsitation holds that thc complainant sidc was thc aggrcssor

14.As thc complainant in his court statement introduccd ncw story and also could not explain the circumstanccs which lcd to thc incidcnt, so in such cventuality, it is for this Court to dctermine the samc. If we accept for a whilc that thc purposc was to rcconcilc thc spouscs thcn, wc lailcd to undcrstand that how thc accuscd camc to know rcgarding thcir approach to thc place of incidcnt and that why instcad of talking to each other, firing was made at once, which rcsulted into thc dcath of thc dcceascd and injurics to the complainant. In this particular issuc 1wo most important witnesses are thc nieccs of the complainant, and sisters of onc ol- thc dcccascd, who wcrc marricd in thc housc. Nonc of thc ladics wcrc produccd bcforc thc invcstigating officcr and cvcn bcforc thc lcarncd trial Court to confirm thc stancc of thc complainant. 'l'his is surprising that complainant in his Court statcmcnt statcd, that thc sislcrs olthc dcccascd attracted to thc spot soon after the incident, but thc invcstigating officer

rcmaincd silcnt on that particular aspcct of thc casc. If thc tragcdy occurrcd in thc mode, manncr and at thc statcd timc, that too, owing to thc straincd rclationship bctwccn the spouscs, then in such cventuality, thc wifc o[ thc accuscd/ appcllant 'l'ausccf would havc dcposed against hcr husband, with whom shc was not cnjoying good relations, but ncithcr shc appcarcd nor she was examincd which in fact can bc intcrprctcd in no othcr manner, but that shc was not rcady to support thc falsc claim of thc complainant. 'l'his is surprising that dcspitc thc fact thal rcal brolhcr of Ms1. Shamshada Bibi was killcd in thc incidcnt, but till datc, both thc sistcrs arc living a happy lilc in thc housc of appcllants, which furthcr ncgatcs thc stancc of thc complainant, as in the incident motive was thc most csscntial clcmcnt and flor thc samc thc matcrial witncsscs wcrc thc sistcrs ol the dcccascd, but thcir non- production can bc takcn only and only against the complainant and infcrencc can bc drawn undcr Articlc 129 (g) o[ Qanoon-c- Shahadat Ordcr, 1984. In this rcgard, wisdom could also bc dcrivcd from thc judgmcnt rcndcrcd by the Apcx Court in casc titlcd ,,Lol Khan vs The state" (2006 scMR 1846) in which it was hcld that:

"The prosecution is certainly not required

lo produce a number oJ' wilnesses as the

quality and nol the quanlily of the evidence

,.s the rule but non-production of most

natural and material wilnesses of occurrence, would strongly lead to an

inference of proseculorial misconducl

which would not only be considered a

source of undue advontage for possession

but also an act of suppression of material

facts causing prejudice lo the accused. The

acl of withholding of most natural and a

material wilness of the occurrence would

creole an impression lhil lhe witness d

would have been broughl into witness-box,

he might nol have supported the proseculion and in such evenlualily the

proseculion must nol be in a position to

ovoid the consequence."

15.'l'hc convict/appcllant'l'ausccl admittcdly, was scrving in thc policc dcpartmcnt, attachcd with llomb Disposal Squad during thc days ofincidcnt. 'Ihc rccord tells that on the day of incidcnt, hc was arrcstcd and put in quartcr guard as hc was chargcd in thc instant casc.'I'his is intcrcsting to notc that on03.6.2017, his official rifle was taken into possession from his olficial box, lying in policc lincs and thc samc was handcd ovcr to thc invcstigating olficcr on 14.6.2017.'l.his is lbr thc

prosccution to cxplain that how, whcn and whcrcfrom thc convict/ appcllant Tauseef was arrcstcd and that who arrested him and who put him in the quarter-guard. 'l'he investigating olficcr was askcd rcgarding this particular aspcct of thc casc, but he 1oo could not explain that who and from where the appcllant was arrcstcd. 'Ihis is furthcr surprising that rccord is silcnt that who took thc official riflc in posscssion lrom posscssion of thc convict/ appcllant 'l'ausccf and who put it into the box belonging to the accused, lying in the Police Lincs, but no cvidcncc has bccn collcctcd by thc invcstigating ol'liccr in that respect. 'l'he investigating officer mentioned one Shcr Nawaz Khan, ASI that it was hc who handed ovcr the wcapon to Noor Kamal, but ncithcr thc said Noor Kamal rccordcd statcmcnt of Shcr Nawaz ASI, inchargc Ilomb Disposal Squad, nor the invcstigating officcr recordcd his statcmcnt undcr scction 161 Cr.P.C. Whcn thc witncsscs are silcnt rcgarding the arrcst and recovery and whcn thc witncsses could not cxplain that wherefrom thc accused/ appellant 'l'ausccf was arrcstcd, thcn in such cvcntuality, this piccc of cvidcncc cannot bc takcn into consideration until corroborated.

'['hc invcstigating officcr took thc Kalashnikov into his posscssion on 14.6.2017 and on that vcry datc an application was addrcsscd to thc I)ircctor Gcncral Iiorensic Science Laboratory, but surprisingly the wcapon along with the

rccovcrcd cmptics wcrc rcccivcd to thc laboratory on 06.7.2017, aftcr a considcrablc dclay of morc than onc month.

On one hand the witness admits that thc recovered Kalashnikov was not scalcd by thc invcstigating olficer and by thc policc olficial who took thc samc lrom thc box, whcrcas on thc other thc collccted cmpties and thc wcapon wcre received to thc laboratory aftcr a considcrablc dclay o[ morc than onc month. In this rcspcct ncithcr thc invcstigating officcr cxamincd Muharrir of the conccrned policc station nor thc official who took the same to thc lorcnsic Science Laboratory.

Whcn thc most rclcvant witncsscs havc not bccn produccd thcn in such cvcntuality this Court lurks no doubt in mind that thc proscculion failcd to provc safc custody of thc collected cmptics and rccovcred wcapon. Whcn such is thc statc of affairs, this Cou( is not in a happy mood to takc into considcration thc laboratory rcport, against thc convicts/appcl lants.

t6. As thc unfortunatc incidcnt occurrcd, bccausc ol thc allegcd strained rclation bctwccn thc spouscs and thc purposc ol visiting thc placc of thc accuscd was to bridgc thc dilfcrcnccs bctwccn thc two, but neithcr Mst Shamshada Ilibi was cxamincd by thc invcstigating officcr nor anothcr sister of thc deceascd who is married in thc house. 'l'hc investigating o[ficcr could not collcct indcpcndcnl cvidcncc in that rcspcct

and as such, thc motivc advanced by thc complainant could not bc cstablished on record. True that absence or wcakness of motivc hardly plays a rolc to dislodgc the prosccution case providcd, it inspircs confidcncc, but in thc casc in hand as purpose was to bridgc the diffcrences bctwecn the spouses and that it was bccause of this reason that thc dcccascd lost their livcs, so it was csscntial for thc prosccution to provc thc samc, but it did not, which has damaged thc prosecution's case bcyond repair In case titled "Muhommad llvas vs Ishfaq alias Munishi and others" 022 YLR 1620 it was held that:

"So far as motive is concerned. Though

lhe prosecution ,',s not under legal obligation to set up a molive. Ordinorily

the absence or weaknesses of motive in

murder case cannol be considered to

justdy the acquitlal. It is well settled that once a motive is sel up il is imperative for the proseculion lo prove lhe same. On

failure whereof adverse inference can be dawn against the prosecution. Reference

is made to the cases of Muhammad Khan

v. Zakir Hussain PLD 1995 SC 590 and

Hakim Ali v .The state l97l scMR 432."

-.-r

17.'l'hc cumulativc cffcct of what has bccn statcd abovc, leads this court nowhere, but to hold that thc prosccution failcd to bring homc guilt against thc appcllants and thc impugncd judgmcnl is suflcring lrom inhcrcnt dcfccts and is lacking rcasons, which calls for intcrfcrcnce. 'l-hc instant criminal appcal is allowed, thc impugncd judgmcnt is set asidc, zrnd thc convict appcllants arc acquittcd of thc chargcs.

'lhcy bc rclcased forthwith, if not requircd to bc dctained in conncction with any othcr criminal casc.

t8. As thc criminal appcal against conviction is allowcd and thc impugncd judgmcnt ls sct aside, so the conncctcd Criminal Itcvision Pctition No.47-B of 2022 has lost its cfficacy which is dismisscd as such. 'l'hcse arc thc dctailcd rcasons for our short ordcr of cvcn datc.

lnnounced

Dote of writing of iudgm,gnl:

3'd <il April, 2023

UDGE

t GE

(D.8)

Hon'ble ML tusake Sohibzodo Asodulloh & Hon'ble Mt. lustice Muhornmod Foheem WotL

o'ufrff

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