2024 P Cr. L J 1473
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
NIAZ and others ---Appellants
Versus
The STATE--- Respondent
Criminal Appeals Nos. (s)16 of 2023 and (s)141 of 2022, decided on 23rd October, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 147, 148 & 149--- Qatl-i-amd, attempt to commit qatl- i-amd, rioting,
rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence ---Ocular
account not established ---Accused were charged that they assaulted the complainant party,
due to which nephew of the complainant died whereas another sustained injuries ---Accused
party also recorded cross version against the complainant party---Motive was stated to be
money dispute between the parties ---To substantiate the indictment, the prosecution
produced the complainant and three other eye -witnesses, who furnished the ocular account ---
Complainant testified that on the fateful day at about 02:20 pm when they reached Gola Market after offering prayer they were confronted with accused party armed with TT Pistols
three accused with knives and danda, whereas two nominated accused and unknown persons also armed with dandas made murderous assault upon them, whereby his nephew died due to firing, whereas the rest received severe injuries ---Other three eye- witnesses testified in line
with the deposition made by complainant, but none of them attributed any specific role with TT Pistol, knives and dandas ---Said witnesses also did not mention that which accused
caused what particular injury and to whom ---Although the said witnesses while furnishing
the ocular account had stated that five accused persons made firing, but none of them had specifically mentioned as to who caused the fatal injury ---Moreso such account also did not
coincide with the medical evidence as the deceased received only one gunshot wound, so it was impossible to determine that amongst them who caused fire shot injury to the deceased---Appeals against conviction were allowed accordingly.
Ansar Mehmood v. The State 2011 SCMR 1524 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 147, 148 & 149--- Qatl-i-amd, attempt to commit qatl- i-amd, rioting,
rioting armed with deadly weapons, unlawful assembly--- Appreciation of evidence ---Free
fight ---Accused were charged that they assaulted the complainant party, due to which
nephew of the complainant died whereas other sustained injuries ---Accused party also
recorded cross version against the complainant party ---Meticulous recital of the evidence on
record demonstrated that both the parties came across at the Gola Market with no premeditation, however, the unfortunate incident took place out of sudden rage at the spur of the movement where one person died and one received fire wound on his thigh, whereas the rest of injured received numerous injuries caused by knives and dandas ---There could be no
other view except that the occurrence was culmination of sudden free fight due to pursuit of hot words between the adversarial parties ---Time and venue had not been disputed by the
accused persons and eye- witnesses of both the cases, however, both the rivals claimed to
have been attacked by the other ---Undeniably, both the parties received injuries, some
minimal and some severe which even culminated into the death of one person, but in the peculiar circumstances of the instant case, each had to be seen in his own role because the common object and vicarious liability in such a situation was hard to ascertain, rather even difficult to determine as to which party was aggressor and who was aggressed upon--- Both
the parties though had attributed the role of assault to the adversarial party, but had concealed and had tried to cover up their own role of inflicting injuries to the members of the rival party ---Appeals against conviction were allowed accordingly.
Rajmeer Khan v. Noorul Haq 2019 SCMR 1949 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 147, 148 & 149--- Qatl-i-amd, attempt to commit qatl- i-amd, rioting,
rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence ---
Recovery of weapons of offence on the instance of accused persons ---Inconsequential ---
Accused were charged that they assaulted the complainant party, due to which nephew of the
complainant died whereas other sustained injuries ---Accused party also recorded cross
version against the complainant party--- Record showed that TT Pistol and knife were
recovered on the pointation of two accused persons, which were taken into possession through recovery memos in consequence of disclosure ---Said evidence could not be
considered as a corroborative piece of evidence because the empties and subsequently recovered pistol from the heap of garbage lying behind the musafir khana were sent together, thus the Forensic Science Laboratory Report of pistol and empties having been sent together lost its evidentiary value ---Recoveries seemed unacceptable and did not appeal to mind that
how come the pistol and knife recovered from two accused persons respectively, would remain on heap of garbage from the fateful day i.e. 21.05.2021 till their recovery on 05.06.2021---In so far as the recovery of knife from another accused was concerned, it was also unworthy of reliance because the mode and manner in which the recovery of knife was made by accusedwas improbable as well, which did not appeal to a prudent mind that he would wait on the crime scene for the police to arrive and allow them to get recover the blood stained knife red- handedly, despite there being ample opportunity to throw the crime
weapon ---Henceforth the recovery of knife being dubious was to be discarded---Appeals
against conviction were allowed accordingly.
Mushtaq v. The State PLD 2008 SC 1; Shahid Rasool alias Shahid Commando v. The
State 2002 YLR 3676 and Mehar v. The State 2006 YLR 661 rel.
(d) Criminal trial ---
----Medical evidence--- Scope ---Medical evidence though substantiates the fact that the
injured received injuries mentioned in the Medico Legal Certificate, but it cannot be considered as a corroborative piece of evidence rather it merely confirms the duration, locale and kind of weapon, but in no way identifies the culprit.
Muhammad Mansha v. The State 2018 SCMR 772 rel.
(e) Criminal trial ---
----Guilt of accused ---Proof ---Principle ---Guilt of an accused is to based upon confidence
inspiring and truthful evidence which can not sustain on mere probability as it cannot take the place of truth.
Naveed Asghar v. The State PLD 2021 SC 600 rel.
Changaiz Baloch for Appellant (in Criminal Appeal No. (s)16 of 2023).
Jameel Akhtar Gajani, APG for the State (in Criminal Appeal No. (s)16 of 2023).
Jamal -ud-Din Lehri for the Complainant (in Criminal Appeal No. (s)16 of 2022).
Jamal -ud-Din Lehri for Appellant (in Criminal Appeal No. (s)141 of 2022).
Jameel Akhtar Gajani, PG for the State (in Criminal Appeal No. (s)141 of 2022).
Date of hearing: 24th August, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---The captioned appeals pertains to an
occurrence, which took place on 21.05.2021 at Manjhoo Shori Bazar registered with Police
Station Manjhoo Shori, whereof two FIRs bearing Nos. 25 of 2021 and 26 of 2021 were
registered by Muhammad Akram and Khan Muhammad respectively. The accused of both the crime reports ibid were booked and after a full -fledged trial, they were convicted and
sentenced vide two separate judgments dated 20.12.2022 authored by learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali ("Trial Court"), which have been assailed
through the captioned appeals.
Since both the appeals emanate from an occurance, having a counter version,
therefore, the same having been knitted with similar thread of facts are, being decided
through this consolidated judgment. Facts of the cases follow hereunder; -
2. FACTS OF CRIMINAL APPEAL NO(S).16 OF 2023. The instant criminal appeal
has been filed by appellants Niaz, Khan Muhammad and Haji Eitbar against their conviction recorded vide judgment dated 20.12.2022 ("impugned judgment") by the Trial Court in a case vide FIR No.25 of 2021 (Ex.P/13 -A) dated 08.02.2022 with Police Station Manjhoo
Shori for the offence punishable under sections 302, 324, 147, 148 and 149 of Pakistan Penal Code 1860 ("Penal Code") in the following terms; -
"The accused persons Niaz, Khan Muhammad and Haji Eitbar are convicted offence under Sections 302 -b, 34 P.P.C and sentenced to suffer for Life Imprisonment R. I
each with direction to pay Rs.500.000/ - (Rupees Five Lac) each as compensation
under Section 544- A Cr.P.C to the heirs of the deceased Fail Khan. In default of
payment of the compensation amount of 500,000/ - (Rupees Five Lac Only) each the
accused persons Niaz, Khan Muhammad and Haji Eitbar shall further to suffer simple imprisonment for a period of Six (06) Months each. The accused persons Niaz, Khan
Muhammad and Haji Eitbar are also committed offences under sections 324, 34 P.P.C, therefore, they are further convicted offences under sections 324, 34 P.P.C and sentenced to suffer for a period of Five (05) years R.I each, they have also caused lacerated wound to Eitbar Hussain on nose with fresh bleeding and lacerated wounds on the back of head with fresh bleeding of 1 cm in size and entrance wound inverted margins in shape on left lateral side of chest, they have also caused an exit wound inverted margin in shape of left side of chest, on front of left side of chest, lacerated wound on back of head and swelling on nose to the victim Eid Muhammad and an entrance wound semicular in shape inverted margin in front side of armis with fresh bleeding. An exit wound in regular in shape on lateral side of left arm. Lacerated wound on left side of head about 2 cm to the victim Shabir Ahmed, they have also committed Shujah -i-Khafifah under section 337 -A(i) Q&D Ordinance, to the victim
Eltaf Hussain son of Hamza which is punishable under section 337- A(i) Q&D
Ordinance and sentenced to suffer for a period of one(01) year R.I as Tazir each and they are also directed to pay Rs.5000/ - (Rupees Five Thousand) each as Daman to the
victim Eitbar Hussain and the accused persons have also caused Ghair -Jaiffah under
section 337- E(2)(b) to the victim Eid Muhammad, which is punishable under section
337- F(ii) Badiah, therefore, they are convicted and sentenced to suffer for a period of
Two(02) years R.I each as Tazir ,with direction to pay Daman Rs.10,000/ - (rupees
Ten Thousand) each to the victim Eid Muhammad and they also caused Shijah- i-
Khafifah to the victim Eid Muhammad under section 337- (a)(i) Shujah -i-Khafifah,
therefore, they are convicted offence under section 337 -A(i) ondentenced to suffer for
a period of one(01)year R.1 each as Tazir with direction to pay Daman Rs. 5000/ -
(rupees Five Thousand) each, the accused persons have also caused Chair Jafifah under section 337- E(2)(b) to the victim Shabir Ahmed and the accused persons have
committed Badiah to the victim Shabir Ahmed, which is punishable under section 337- F(ii), therefore, the accused, persons Niaz Khan Muhammad and Haji Eitbar are
further convicted and sentenced to suffer under section 33 7- F(ii) Q&D Ordinance as
Tazir with direction to pay Rs.10,000/ - (Rupees Ten Thousand) each as Daman to the
victim Shabir Ahmed and they also caused Shujjah- i-Khafifah under section 337- (a)
Q&D Ordinance Shujjah -i-Khafifah, which is punishable under section 337- A(i),
therefore, the accused persons are further convicted and sentenced to suffer for a period one(01) year R.1 each as T'azir and they are directed to pay Rs.5000/ - (Five
Thousand) each to the victim Shabir Ahmed, they shall remain in custody till the payment of Daman amounts. All the sentences awarded to the accused persons shall run concurrently and the benefit of Section 382- B Cr.P.C is also extended in favour of
the accused persons Niaz, Khan Muhammad and Haji Eitbar from the date of their arrest i.e. 23.05.2021,25.05.2021 and 26.05.2021."
3. Tersely, the facts gleaned from the record are that complainant Muhammad Akram
(PW -1) reported the crime through application (Ex..P/1- A), averring therein that he along
with his nephews Fazil Khan, Eid Muhammad, Altaf Hussain and Shabir Ahmed after
offering prayer were going to Manjhoo Shori Bazaar for shopping; when they reached Gola Market at about 02:20 p.m, accused persons Ismail, Haji Eitbar, Yar Muhammad, Muhib Ali
along with five unknown accused persons made firing upon the complainant party with T.T
Pistols and also attacked with knives and sticks due to which his nephew Fazil Khan died on
the spot, while Eid Muhammad, Altaf Hussain and Shabir Ahmed sustained bullet, knife and stick wounds.
4. After registration of the FIR ibid, the investigation was entrusted to Ellai Bakhsk SI
Investigating Officer (I.O) (PW -13), who went to the crime scene, prepared site plan
(Ex.P/13- B), took into possession ten empties of TT pistol (Ex.P/13- H), inquest report of
deceased (Ex.P/13 -D), filed incomplete challan (Ex .P/13- E) and supplementary challan
(Exh.P/13- F) (Exh.P/13 -H) and obtained FSL report (Ex.P/13- G);. Investigating Officer
arrested the appellants Niaz, Khan Muhammad and Eitbar on 23.05.2021, 26.05.2021 and 29.05.2021 respectively, whereas the others stayed away from law; thus, were declared absconders.
5. After completion of investigation, challan was submitted and the appellants were sent
up to the Trial Court to face the consequence of their deeds. On the stated allegations, a formal charge was framed and read over to the appellants, to which they did not plead guilty and claimed trial. The prosecution to drive home the charge produced as many as 13 witnesses. On close of prosecution side, the appellants were examined under Section 342 of the Code, which allegations were refuted by them, however, neither they entered as witnesses in their defence nor produced anyone else to defend them, henceforth, on conclusion of the
trial, appellants were convicted and sentenced in the above terms mentioned in para supra.
FACTS OF CRIMINAL APPEAL NO.(S) 141 OF 2022. Altaf Ali and Shabir Ahmed,
the appellants in Appeal No. (s) 141 of 2022 have assailed the judgment dated 20.12.2022 ("impugned judgment") by the Trial Court emanating from an FIR No.26 of 2021 registered with Police Station Manjhoo Shori, whereby the appellants were convicted and sentenced in the following terms;-
" ... therefore, the accused persons Altaf Ali and Shabir Ahmed are convicted offences under sections 324, 34 P.P.C and sentenced to suffer for a period of Five (05) years R.I each, they have also caused Shujjah- i-Madihah under section 337- (b) O&D
Ordinance to the victim Eitbar Ali son of Hamza, which is punishable under section 337- A-ii Q&D Ordinance, therefore, they are convicted offence under sections 337 -
A(ii), 34 P.P.C and sentenced to suffer for a period of Two(02) years R.I each as Tazir with directi on to pay Arsh 05% of Diyat amount each. They have also caused
Shujjah -i-Madihah to -the victim Khan Muhammad under section 337- A(2)(b) Q&D
Ordinance which is punishable under section 337- A(i) Q&D Ordinance, therefore,
they are convicted and sentenced to suffer a period of Two(02) years R.I each as Tazir with direction to pay Arsh of 05% of Diyat amount each to the victim Khan Muhammad, the accused persons also caused Ghair -i-Jaifah under section 337 -E(a)
(Damiah), which is punishable under section 337- F(i) Q&D Ordinance, therefore,
both the accused persons Altaif Ali and Shabir Ahmed are further convicted offences 337- F(i) Q&D Ordinance and sentenced to suffer for a period of One(01) year R.I
each as Tazir and they are also directed to pay Daman Rs.2000/ - (Rupees Two
Thousand) each to the victim Khan Muhammad. The accused persons have also caused Shujah -i-Khafifah under section 337- AG) Q&D Ordinance to the victim Jan
Muhammad and they are further for a period of one(01) R.I each convicted and sentenced to suf fer with direction to pay Daman Rs.3000/ - (Three Thousand) to the
victim Jan Muhammad. The accused persons also caused Shujjah- i-Khafifah to the
victim Amanullah under section 337- A(i) Q&D Ordinance, therefore, the accused
persons are further convicted and sentenced for the period of one(01) RI each with direction to pay Rs.3000/ - (Rupees Three Thousand) each as Daman to the victim of
Amanullah for causing hurt. The accused persons are also caused Shujjah -i-Khafifah
to the victim Sadiq under section 337- A(i) Q&D Ordinance, therefore, both the
accused persons are further convicted and sentenced for the period of one(01) R.I cach as Tazir with direction to pay Rs.3,000/ - (Rupees Three Thousand) as Daman
each to the victim Sadiq for causing hurt. The accused persons have also caused
Shujjah -i-Madihah to the victim Muhammad Muqeem, which is punishable under
section 337- A(ii) Q&D therefore, both the accused persons are further convicted
offence under section 337 -A(ii) Q&D Ordinance and sentenced to suffer for a period
of Two(02) years R.I. each with direction to pay Arsh 05% of the Diyat amount and
they also caused under section 337- E(Ghair -Jaiffah) (Badihah), which is punishable
with section 337F(i) Q&D Ordinance, therefore both the accused persons are further
convicted offence under section 337- F(i) and sentenced to suffer for a period of
Two(02) years R.I each with direction to pay Daman Rs.5000/ - (rupees Five
Thousand) for causing hurt to the victim Muhammad Muqeem. All the sentences
awarded to the accused persons shall run concurrently and the benefit of Section 382-B Cr.P.C is also extended in favour of the accused persons Altaf Ali and Shabir Ahmed from the date of their arrest i.e, 13.06.2021."
6. Unfurled facts of the instant case are that complainant Khan Muhammad (PW -1)
lodged an FIR bearing No. 26 of 2021 on 21.05.2021 with Police Station Manjhoo Shoori,
contending therein that on the same day at about 2:20 pm, while he along with his brother
Jan Muhammad, cousins Haji Eitbar (PW -2), Muhammad Muqeem, relatives Sadiq Ali and
Amanullah reached Gola Market Manjhoo Shori Bazaar, they we attacked by accused Karam
Khan, Altaf, Shabir Ahmed, Fazil Khan, Eid Muhammad, Nisar Ahmed, Ismail, Ghulam
Muhammad alias Mir Muhammad and Sanaullah along with five unknown culprits, due to
which they received numerous severe injuries.
7. After registration of the case; Ali Goher Lehri (PW8) was entrusted the investigation,
who visited the crime scene, prepared memo of place of occurrence and site plan, collected
bloodstained earth and clothes as well as seven empties of TT pistol and knives and obtained
MLC of injured persons namely Eitbar Ali, Khan Muhammad, Jan Muhammad, Amanullah,
Sadiq and Muhammad Muqeem. During investigation, appellants Altaf Hussain and Shabir
Ahmed were arrested and remanded to judicial custody on 23.06.2021 and submitted incomplete challan.
8. The Trial Court indicted the appellants by framing a formal charge on 15.08.2021, to
which, they entered the plea of denial, leading the prosecution to produce as many as eight witnesses in order to bring home the charge. After denying the allegations, while being examined by the court, they did not opt to lead defence.
9. On conclusion of the trial, the appellants were held guilty of the charge, hence,
convicted and sentenced in the terms mentioned in para supra.
10. Mr. Changaiz Baloch, learned counsel for the appellants in Crl. Appeal No. 16 (s) of
2023 inter alia contended that the appellants were aggressed upon by the complainant party, but the Trial Court without considering such aspects of the matter convicted and sentenced the appellants which is contrary to facts, thus, merits to be set aside. He maintained that recovery of knife from Niaz, point 30 bore Pistol from appellant Eitbar in consequence of the disclosure and recovery of knife from appellant Khan Muhammad have been foisted against them as during the said recovery, no independent witness was associated as recovery witness, creating doubt, therefore, the same cannot be considered as corroborative piece of evidence. According to him, the learned trial Judge has misread the evidence, which has made the impugned judgment perverse and illegal, requiring the same to be set at naught by allowing the appeal and recording acquittal of the appellants.
11. Mr. Jamaluddin Lehri, learned counsel for the appellant in Cr1. Appeal No(s). 141 of
2022 came up with the similar narration as stated by Mr. Changaiz Baloch, Advocate and inter alia contended that actually on the fateful day complainant party including Niaz, Khan Muhammad and Haji Eitbar made a murderous assault upon them as well as made firing, whereby nephew of complainant Fazil Khan died on the spot, whereas Eid Muhammad Altaf Hussain and Shabir Ahmed also sustained fire shots wounds and blunt injur ies sustained by
stick blows, which has been confirmed by medico legal certificates and recovery of crime
weapons with positive FSL reports of blood stained clothes and articles, whereas on the
contrary to prove the indictment against the appellants namely there is absolutely no confidence inspiring and truthful evidence in order to establish the indictment. He maintained that prosecution has also failed to bring on record any crime weapon including sticks stain with blood to corroborate the ocular account and statements of co -called injured
persons, thus, requested for setting at naught the impugned judgments and as such prayed for
acquittal of the appellants.
On the other hand, learned State counsel at the very outset stated that both the
judgments impugned herein are in accordance with the evidence and law, which merits not to be meddled with. Added further that occurance seems to be an outcome of a free fight, where both the parties have attacked upon each other, however, the culprits of the FIR bearing No. 25 of 2023 have exceeded by committing murder of Fazil Khan, and urged that both the parties are culprits of the crime who have rightly been held guilty of the indictment by the Trial Court. Also argued that the ocular account coupled with the recovery of weapons made from appellant Niaz, Eitbar and Khan Muhammad has substantiated the charge overwhelmingly, thus, there is no any reason to overturn the impugned judgments and similarly the ocular account furnished by the injured prosecution witness brought against appellants Altaf Ali and Shabir Ahmed have also rightly been appreciated by the Trial Court, calling for no interference by this Court, thus, prayed for dismissal of both appeals for being devoid of merits.
12. Heard. Record vetted. FIR No.25 of 2021 got registered by Muhammad Akram (PW -
1) regarding causing injuries to Shabir Ahmed (PW -3), Dost Muhammad (PW -5) Eid
Muhammad (not produced) and Altaf Hussain (PW -6) with sticks and knives, whereas, Fazil
Muhammad succumbed due to fire arm injuries caused by appellants Haji Eitbar, Niaz and Muhammad Khan and proclaimed offenders Ismail, Naik Muhammad, Mohib Ali, Yar Muhammad, Majeed, Sadiq, Jan Muhammad and Muqeem. On the other hand FIR No. 26 of 2021 was lodged by Khan Muhammad (FW -1), whereby he brought on record his counter
version that on 21.05.2021 at 02:20 p.m, he along with his brother Jan Muhammad cousin
Haji Eitbar, Muhammad Muqeem, Sadiq Ali and Amanullah were attacked at Gola Market by Akram Khan, Altaf, Shabir, Fazil Khan, Eid Muhammad, Nasir Ahmed, Ismail, Ghulam Muhammad alias Meer Muhammad and Sanaullah and five unknown persons and also fired at them, whereby one of his cousin Muhammad Muqeem received fire shot wound on his right leg, whereas bullet shot kissed his brother Jan Muhammad, who luckily remained safe, however, Sadiq Ali, Amanullah received injuries inflicted by danda blows. The motive was stated to be money dispute between convict Altaf and Amanullah.
13. To substantiate the indictment, the prosecution in Crl. Appeal No(s). 16 of 2023
produced Muhammad Akram (PW -1), Shabir Ahmed (PW -3), Dost Muhammad (PW -5) and
Altaf Hussain (PW -6), who have furnished the ocular account. Muhammad Akram (PW -1)
testified that on the fateful day at about 02:20 p.m when they reached Gola Market after offering prayer they were confronted with Haji Eibar, Yar Muhammad, Ismail, Muhibullah and Muqeem armed with TT Pistols made firing, Majeed, Niaz Muhammad and Khan Muhammad with knives and danda, whereas Sadiq Ali, Jan Muhammad and unknown persons also armed with dandas made murderous assault upon them, whereby Fazil Muhammad died due to firing, whereas the rest received severe injuries. Shabir Ahmed (PW -
3), Dost Muhammad (PW -5) and Altaf Hussain (PW- 6) testified in line with the deposition
made by Muhammad Akram (PW- 1), but none of them attributed any specific role with TT
Pistol, knives and dandas. They also did not mention that which accused caused what particular injury to whom. Although the said witnesses while furnishing the ocular account have stated that Haji Eibar, Yar Muhammad, Ismail, Muhibullah and Muqeem made firing, but none of them have specifically mentioned as to who caused the fatal injury. Moreso such account also does not coincide with the medical evidence as the deceased Fazil Muhammad received only one gunshot wound, so it is impossible to determine that amongst them who caused fire shot injury to the deceased.
Similarly, in Crl. Appeal No. (s) 141 of 2022, the prosecution produced Khan
Muhammad (PW -1) and Haji Eitbar (PW -2), who have furnished the ocular account. Khan
Muhammad (PW -1) stated that when they arrived at Gola Market at about 02:20 p.m, the
accused persons Karam Khan, Altaf, Shabir Ahmed, Fazil Khan, Eid Muhammad, Nisar Ahmed, Ismail, Ghulam Muhammad and Sanaullah made murderous attacks upon them with dandas and TT Pistols owing to which his cousin Muhammad Muqeem got injured due to fire shots, wherea s bullets kissed him and his brother Jan Muhammad, whilst his relatives Sadiq
Ali and Amanullah sustained stick wounds, whereafter the assailants fled away from the crime scene. He stated that motive was stated to be monetary dispute between Altaf and Amanullah. Haji Eitbar (PW -2) deposed that on 21.05.2021 at about 02.20 p.m, when they
were standing in a street near Gola market at Manjhoo Shori, the accused persons Altaf
Hussain, Shabir Ahmed, Fazil Muhammad, Karam Khan, Ismail and other five unknown person armed with dandas, Karam Khan, Sanaullah, Ghulam Muhammad, Fazil and Eid Muhammad with TT pistols made murderous attacked upon them due to which they received firearm injuries.
14. A question also cropped up before us as to whether in absence of any specific role the
accused persons can be convicted and sentenced in a free fight for unlawful assembly and rioting as contemplated under section 148 read with section 149 of Cr.P.C. We deliberated thereon and were guided by the judgment of the Supreme Court rendered in the case of "Ansar Mehmood v. The State" (2011 SCMR 1524), wherein it was held that in a case of free fight every accused person is liable for only part played for the injury caused by him and that in a free fight there can be no common object, thus, it was held that in such circumstances the appellants could not be convicted even under the offences prescribed for the injuries sustained by the victims. The excerpt of the judgment ibid is as infra: -
"It is not disputed that the said injured victim had never specified any particular blow or injury having been given or caused to him by the present appellant. It is settled law that in a case of a free fight every accused person is liable only for the part played or
the injury caused by him. In the present case no particular injury found on the body of
Muhammad Aslam (P. W.15) had ever been attributed to the present appellant. In this view of the matter the then honourable Chief Justice of the Lahore High Court, Lahore has been found by us to be unjustified in upholding and maintaining the appellant's convictions and sentences on any head of the charge framed against him. After holding the case in hand to be a one of a free fight the appellant could not have been convicted for an offence under section 148, P.P.C. read with section 149, P.P.C.
because there was no common object between the culprits. A charge in respect of an offence under section 324, P.P. C. read with section 149, P.P.C. could not stick against the appellant because he had not been attributed any specific injury in such a case of a free fight and for the same reason the appellant could also not have been convicted for offences under sections 337- A (ii) and 337- L(2), P.P.C. because it was
never determined as to which particular injury, if any, had actually been caused by the appellant to the injured victim namely Muhammad Aslam (P. W 15) "
15. The motive does not seem, to have a backdrop of blood feud, but apparently erupted
and spelled out with no anticipated consequences as when it started the parties were unaware of its gravity, resulting into injuries sustained by both the sides.
16. The meticulous recital of the evidence on record demonstrates that both the parties
came across at the Gola Market with no premeditation, however, the unfortunate incident took place out of sudden rage at the spur of the moment where Fazil Muhammad died and Muqeem received fire wound on his thigh, whereas the rest of injured persons received numerous injuries caused by knives and dandas, whereof there can be no other view except that the occurrence was culmination of sudden free fight due to pursuit of hot words between the adversarial, parties. The time and venue have not been disputed by the convict -appellants
and eye -witnesses of both the cases, however, both the rivals claimed to have been attacked
by the other.
17. Undeniably, both the parties received injuries, some minimal and some severe which
even culminated into the death of Muhammad Fazil, but in the peculiar circumstances of the instant case, each has to be seen in his own role because the common object and vicarious liability in such a situation is hard to ascertain, rather even difficult to determine as to which party was aggressor and who was aggressed upon for the occurrence took place in Bazar. Both the parties though have attributed the role of assault to the adversarial party, but have concealed and have tried to cover up their own role of inflicting injuries to the members of the rival party. The apex Court in the case of "Rajmeer Khan v. Noorul Haq" (2019 SCMR 1949) in almost a similar like case observed that both the parties have tried to hide the truth and have minimized their own roles, thus, it was held that both the parties had not approached the court with clean hands and it was therefore, impossible to discern the truth from such a heap of falsehood. The relevant expert thereof is reproduced herein below; -
" Both the parties had tried to hide the 'truth and to minimize their own roles. After disbelieving the stories advanced by both the rival parties the High Court had
reconstructed the story and had observed that the case in hand was a case of a free
fight entailing individual liability of each accused person. We have, however, found that the truth in this case was mixed very heavily with something which was untrue and both the parties to this case had not approached the court with clean hands. In these circumstances we have found it to be impossible to discern the truth from such a
heap of falsehood and, thus, we are left with no other option but to acquit Mushtaq
Khan appellant by extending the benefit of doubt to him."
18. The recoveries of TT Pistol and knife recovered on the pointation of Eitbar and
Khan Muhammad, which were taken into possession through recovery memo (Exh.P/12- B)
in consequence of disclosure memo (Exh.P/12- A) and through recovery memo (Exh.P/ 12- D)
in consequence of disclosure memo (Exh.P/12 -C) respectively, cannot be considered as a
corroborative piece of evidence because the empties and subsequently recovered pistol from
the heap of garbage lying behind the musafir khana were sent together, thus the FSL report of pistol and empties having been sent together has lost its evidentiary value for it offends
the dictum expounded in the case of "Mustaq v. The State" (PLD 2008 SC 1).
So be it, the recoveries seem unacceptable and doesn't appeal to mind that how come
the pistol and knife recovered from Eitbar and Khan Muhammad respectively, shall remain
on heap of garbage from the fateful day i.e. 21.05.2021 till recovery on 05.06.2021. SEE; ["Shahid Rasool alias Shahid Commando v. The State (2002 YLR 3676) and Mehar v. The State (2006 YLR 661)"].
19. In so far the recovery of knife recovered from Niaz is concerned, it is also unworthy
of reliance because the mode and manner the recovery of knife was made by Niaz is improbable as well, which does not appeal to a prudent mind that he would wait on the crime
scene for the police to arrive and allow them to get recover the blood stained knife red-handedly, despite there being ample opportunity to throw the crime weapon, henceforth the
recovery of knife being dubious is discarded.
20. Adverting to the video clip, it may be observed that the source of taking the video has
neither been disclosed nor report of FSL regarding its genuineness has been procured in
accordance with the guideline narrated by the apex Court in the cases of "The State v. Ahmed Omer Sheikh" (2021 SCMR 873) and "Ishtiaq Ahmed Mirza v. Federation of
Pakistan" (PLD 2019 SC 675), thus, no reliance can be placed upon the said video clip for
having no evidentiary value.
21. The medical evidence though substantiate the fact that the injured named herein
above received injuries mentioned in the Medico Legal Certificate, but it cannot be
considered as a corroborative piece of evidence rather it merely confirms the duration, locale and kind of weapon, but in no way identifies the culprit as held by the apex Court in the cases of "Muhammad Mansha v. State" (2018 SCMR 772), relevant expert whereof is reproduced hereunder;
"It has been declared by this Court in various judgments that the medical evidence neither pin point the accused nor establish the identity of the accused, and at the most can depict the locale of injuries, duration, weapon used etc. and medical evidence can never be considered to be a cororoborative piece of evidence and at the most can be considered a supporting evidence only to the extent of specification of seat of injuries, the weapon used, duration, the cause of death etc.. reference in this context can be made to the cases of Muhammad Sharif and another v. The State (1997 SCMR 127). Dildar Hussain v Muhammad Afzall alias Chala and others (PLD 2004 SC 663). Abdul Majeed v. Mulzim Hussain and others (PLD 2007 SC 637) and Hashim Qasim and another v. The State ( 2017 SCMR 986)."
22. For what has been discussed- herein above, we are of the considered view that the
prosecution has remained unsuccessful to prove the indictments tried pursuant to FIR Nos.25 of 2021 and 26 of 2021, thus, on the basis of mere suspicion and probability, the appellants
cannot be held to be guilty of the charges unless the indictments are proved beyond any
reasons doubt. The apex Court as well as' this court has time and again held that the guilt of an accused should be based upon confidence inspiring and t ruthful evidence which cannot
sustain on mere probability as it cannot take the place of truth. Here we would like to refer to the judgment of the apex Court titled as "Naveed Asghar v. The State" (PLD 2021 SC 600),
the relevant excerpt whereof is facsimile hereunder; -
"It is a well- established principle of administration of justice in criminal cases that
finding of guilt against an accused person cannot be based merely on the high
probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case is decided merely on high probabilities regarding the existence or non -existence of a
fact to prove the guilt of a person, the golden rule of giving "benefit of doubt to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Constitutional Courts, will be reduced to a naught." The prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right not as of concession. The rule of giving benefit of doubt to accused person is essentially a rule of caution and prudence, and is deep rooted in our jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments [hudood]
when there are doubts"; and" Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment". A three- member Bench of this Court has quoted probably latter part of the last
mentioned saying of the Holy Prophet (peace be upon him) in Ayub Masih v. State 37 in the English translation thus: "Mistake of Qazi (Judge) is in releasing a criminal is better than his mistake in punishing an innocent."
[Emphasis added]
23. Corollary, Criminal Appeal bearing No.(s) 16 of 2023 and No.(s) 141 of 2022 are
allowed, consequently both the judgment impugned dated 20.12.2022 drawn by the Trial Court are set aside and the appellants in Crl. Appeal No. (s) 16 of 2023 namely Niaz son of Ghulam Nabi, Khan Muhammad son of Ali Mardan and Haji Eitbar son of Ameer Bakhsh and appellants in Crl. Appeal No.(s)141 of 2022 namely Altaf Ali son of Hamza Khan and Shabir Ahmed son of Muhammad Karim are acquitted of the charge, who shall be set free, if not incarcerated in any other case.
JK/149/Bal. Appeals allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.