SAHIBZADA ASADULLAH, J-. Through this single judgment we intend to decide the instant Criminal Appeal as well as the connected Criminal Revision No.17-P/2025 "Meher Shad Vs Arshid & others", as both the cases are arising out of one and the same judgment dated 21.12.2024, passed by learned Additional Sessions Judge-VII, Mardan, delivered in case FIR No. 151 dated 19.02.2021, under sections 302 / 324/ 449/ 427/ 34 PPC, registered at Police Station Hoti District Mardan, whereby the appellants were convicted and sentenced in the following manner: - Under section 302 (b) PPC for life imprisonment each accused as Tazir for two counts. Both the convicts shall also pay Rs.200000/- (rupees two lac) for each deceased as compensation which if realized, shall be distributed amongst legal heirs of both the deceased in accordance with their Sharia shares and in default of making payment they shall undergo 06 months of simple imprisonment.
Under section 324 PPC to undergo imprisonment for five years each accused rigorous imprisonment on two counts and to pay a fine of Rs.50,000/- (rupees fifty thousand). In default of paym ent of fine the accused shall further undergo three months simple imprisonment. Under section 449 PPC for ten years each accused rigorous imprisonment on two counts with fine of Rs.50,000/ (rupees fifty thousand) in default of payment, they shall undergo 06 months of simple imprisonment.
Under section 427 PPC for two years each accused on two counts with fine of Rs.20,000 (rupees twenty thousand), in default of paym ent of fine, they shall undergo one month of simple imprisonment.
All the sentences shall run concurrently. The convicts were given benefit of Section 382-B Cr.P.C."
2. The gist of the prosecution story as contained in the First Information Report are that complainant Meher Shad reported the matter to the police while present with the dead bodies of the deceased in the casualty of DHQ Hospital, Mardan to the effect that on the day of incident he alongwith his counsin Abdul Samad was present at the place of occurrence, when in the meanwhile, accused Arshid, Asif, Naveed and Ashfaq sons of Muhammad Ismail, residents of Guli Bagh duly armed with firearms came and started altercation with his deceased brother Abdul Sattar and during altercation the accused infuriated opened firing at them, as a result of which his brother Abdul Sattar got hit and died on the spot, whereas he escaped unhurt, thereafter the accused entered into the house and made firing at his sister-in-law Mst. Gul Rukh, due to which she got hit and died on the spot. He could do nothing as he was empty handed. The motorcar parked in the house also got damaged due to the firing of the accused. Motive behind the occurrence was that few days before the occurrence theft was committed from the house of deceased Abdul Sattar and for which the deceased was suspecting Mst. Tauheeda, his first wife, so the same turned to be the cause of the unfortunate incident. Besides him, the occurrence is witnessed by his cousin Abdul Samad and the people present on the spot. He charged the accused for the commission of the offence, hence, the present FIR.
3. It is pertinent to mention that after the occurrence, the accused went into hiding and on arrest of the appellants Arshid and Asif i.e. on 14.09.2022, complete challan was submitted before the Court for trial. The provisions of 265C Cr.P.C were complied with and charge was framed against the accused, to which they pleaded not guilty and claimed trial. After commencement of the trial, the prosecution produced as many as 20 witnesses in support of its claim and after closure of prosecution evidence, statements of accused-appellants were recorded under section 342 Cr.P.C, wherein they professed their innocence, however, neither they wished to be examined on oath as required under section 340(2) Cr.P.C, nor wanted to produce evidence in defence. The accused faced the trial and on conclusion of the trial, the learned trial Court convicted and sentenced the appellants, detail of which mentioned in the opening para of this judgment, hence, the instant appeal.
4. Heard. Record perused.
5. The tragic incident shocked us to the core, as it claimed the lives of two innocent persons. The dead bodies were shifted to the hospital where the matter was reported. The injury sheets and inquest reports were prepared and the dead bodies were sent for postmortem examination. The investigating officer after receiving copy of the FIR visited the spot and on pointation of the complainant prepared the site plan. During spot inspection the investigating officer collected blood through cotton from the respective places of the deceased and he also took into possession seven (07) empties of 7.62 bore, four (04) empties of M-16 and three (03) empties of 30 bore from the places of the accused, whereas from inside the room three (03) empties of 7.26 bore, two (02) empties of 30 bore and two (02) empties of M-16 were recovered from the places of the accused.
The investigating officer also took into possession seven (07) spent bullets of different bores from the place of male deceased Abdul Sattar and four (04) spent bullets of different bores from inside the room, where the female deceased Mst. Gul Rukh was done to death. Bullet marks were observed on the outer gate of the house and also on the wall, inside the room, where the deceased Mst. Gul Rukh. was done to death. It is interesting to note that a motorcar parked inside the house got damaged from the firing and the same was also taken into possession. The accused after commission of the offence went into hiding, but the local Police succeeded to arrest the appellants, whereas the remaining two are still at large. The accused were produced before the Court requesting their custody and it was during1 investigation that the accused/appellants led the Police party to the house of one Asfandyar, though abandoned, and on their pointation, a sack containing four (04) different sacks having the weapons in it, were taken into possession. A Kulikov was shown recovered on pointation of the appellant Arshad, whereas a .30 bore pistol on pointation of the appellant Ashfaq. The collected empties were sent alongwith the recovered weapons to the Forensic Sciences Laboratory, a report was received telling that the recovered empties matched with the weapons. The accused were committed for trial and on conclusion of the trial were convicted and sentenced, vide the impugned judgment.
6. It was after full-dressed trial that the learned trial Court found the appellants guilty and were convicted and sentenced, but this Court is to see as to whether the learned trial Court was justified to reach to the conclusion and that what evidence convinced it in that respect. There is no denial to this fact that the tragic incident led to the tragic death of the deceased, where one was the husband and the other his wife, but there is no denial to this fact as well that mere heinousness of an offence would hardly be a circumstance for holding an accused responsible, rather under all circumstances the Courts of law must look for independent corroboration and the prosecution must bring on record trust-worthy and confidence-inspiring evidence. If on one hand the unfortunate spouses lost their lives, then on the other four (04) real brothers are charged, so to reach to a just conclusion extra care is needed, so that the liabilities could be fixed against those who are responsible.
7. The points for determination before this Court are; as to whether the incident occurred in the mode, manner and at the stated time; as to whether the witnesses were present on the spot and that whether it was the complainant who reported the matter; that whether the medical evidence supports the case of the prosecution and that whether the prosecution succeeded in bringing home guilt against the appellants.
8. There is no denial to this fact that the shocking incident claimed lives of the deceased, but this Court is conscious to know as to whether the prosecution could connect the appellants with commission of the offence and that whether the statements of the witnesses inspire confidence.
Keeping in view the inter-se relationship between the parties, this Court is anxious to know that why the deceased were killed and that what prompted the appellants to commit the offence. The deceased Abdul Sattar, initially married to Mst. Tauheeda, and out of the wedlock, they were blessed with few children, but subsequently, he got married to the deceased i.e., Mst. Gul Rukh. The couples lived a happy life, but in separate houses lying at a distance of 200 paces. Before the incident, no ill-will between the families was noted and even no strained relationship was ever reported, so this Court is anxious to know that what happened between the families which led to the tragic incident and that what interest the accused, who are the real brothers of Mst. Tauheeda, had in the affair. To dig out the truth, we went through the record, but apart from suspicion, which the deceased had, against his first wife, regarding theft committed in his house, no more evidence could be found which would help this Court in reaching to the conclusion. In order to appreciate the peculiar circumstances of this case, we deem it essential to take into consideration the statements of the witnesses and also to take into consideration their relationship with the deceased. Record tells and so admitted, that the complainant is the brother of the deceased Abdul Sattar, and the eyewitness his cousin. Keeping in view the close relationship among the witnesses and the deceased, we deem it desirable to look into the statements of the witnesses, so to ascertain that the witnesses were telling the truth and that the incident occurred in the stated manner. In order to appreciate the presence of the witnesses on spot, we are inclined to take into consideration their engagements in routine. Record tells that the eyewitness, during the days of occurrence, was running a grocery shop situated in another area, whereas the complainant was living a retired life. As in this particular case the witnesses are closely related to the deceased, we are to apply extra care so that miscarriage of justice could be avoided. In order to appreciate the presence of the witnesses on spot, we deem it essential to re-consider their statements and to ascertain that they could stand the test of searching cross-examination. The complainant was examined as PW-17, who explained that on the day of occurrence he visited the house of Mst.
Tauheeda, where the accused were present, as the relationship between the deceased and his wife were strained as the deceased was suspecting his wife for committing theft from his house, so the accused had come to the house of their sister and wanted to patch up the matter with the deceased. He further explained that the accused persuaded him to visit the deceased, so that the matter could be resolved and on reaching to the spot, the deceased was present in the street. The witness went on to say that an altercation took place between the accused and the deceased, the deceased was fired at by the accused and they were fired at as well, they escaped unhurt, but the deceased died on the spot. The complainant in his report disclosed that after killing the deceased, the accused fired at the outer gate of the house, entered in house and fired at Mst. Gul Rukh, inside the room, who after receiving firearm injuries died on the spot. The eyewitness was examined as PW-16, he supported the stance of the complainant and he also explained the circumstances in which the unfortunate incident occurred. The defense tried its best to extract something favorable from their mouth, so this Court is to see as to whether the defense succeeded in creating dents in the case of the prosecution. It is interesting to note that both the witnesses explained the circumstances in a different manner. The eyewitness did not mention that before the occurrence the accused had come to the house of their sister and that the complainant went to discuss the matter, rather he explained that while present in the street alongwith the deceased, the accused came, started firing at the deceased who after receiving firearm injuries, died on the spot, whereas they escaped unhurt. When the statements of these witnesses are taken into consideration, this Court is not reluctant in holding that one of the witness improved his statement and the other witness did not support. The improvements are dishonest and we are confident in holding that the same has damaged the case of the prosecution. The witnesses failed to establish their presence on the spot. Had they been present and had they been fired upon, there was hardly an occasion for them to escape unhurt, as the accused were armed with deadly weapons. As the motive was not with the witnesses, then why the witnesses were fired at. The circumstances suggest that the witnesses were not present on the spot, but it was after the occurrence that they reached to the spot and thereafter, the dead bodies were shifted to the hospital.
9. We are not in a happy mood to accept that the incident occurred in the stated manner. If, we accept that the accused wanted to patch up the matter and for the same the services of the complainant were hired, then it is for the complainant to tell that why he permitted the accused to visit the deceased having arms in their possession. If the witness knew the intention of the accused, then he must avoid to bring the accused to the house of the deceased. If the accused had come with the intention to kill, then there was hardly an occasion for them to talk to the deceased and there was no occasion for the parties to enter in altercation, rather on seeing the deceased, the accused would have fired. The deposition of the witnesses questions their credibility, if the firing was made after altercation, then the accused had not come with the intention, but it was the circumstances which turned from bad to worse and the unfortunate incident occurred, as in that eventuality the accused would hardly fire at the witnesses, as the witnesses were not related to the issue. If the firing was made after altercation, then this Court can presume that the matter was between the two i.e., the deceased Abdul Sat-tar, and the accused, then there was hardly an occasion for the accused to fire at the outer gate of the house and to kill the deceased Mst. Gul Rukh, inside the house. Neither the motive was of such a magnitude which led to the killing of the deceased, nor the accused had the cause to kill the deceased Mst. Gul Rukh, as by then she was inside the room. Neither the Investigating officer could collect evidence in that respect, nor the witnesses could convince the eagerness of the accused to kill both the deceased. If the deceased Abdul Sattar, lost his life after altercation, then this Court would presume that the accused had not come to the spot with a prepared mind and in such an eventuality the accused would have not killed the lady deceased, as by then she was inside the house and inside the room. The site plan was prepared on the pointation of the complainant and the eyewitness, but interestingly the respective places of the accused are shown inside the room, whereas the witnesses did not enter the house, rather one ran towards the field, whereas the other because of fear, jumped over the canal. When the witnesses were not present, when the lady deceased was done to death, then how the Investigating officer could give specific point to every of the accused. On one hand the witnesses remained inconsistent on material aspects of the case, whereas on the other they failed to establish their presence on the spot at the time of occurrence, so this Court is inclined to hold that the incident went unwitnessed and the report was made after attendance of the complainant was procured. On one hand the witnesses are closely related to the deceased, whereas on the other their testimony does not inspire confidence. When such are the circumstances, then this Court is inclined to hold that the witnesses were interested to falsely implicate, so their statements cannot be taken into consideration for the conviction of the appellants. True that mere relationship of a witness with the deceased would hardly be a circumstance to exclude his statement from consideration, provided the witness could prove his presence on the spot and would convince that the incident occurred at the stated time and in the stated manner. The complainant because of his dishonest improvement damaged the case of the prosecution beyond repair, whereas the eyewitness narrated the occurrence in a different manner. Not only the witnesses are in conflict, but they also tried their best to connect the accused with the commission of the offence.
The conscious attempt to establish their presence on the spot and the conscious attempt to involve the accused in the tragic incident, are the circumstances which put a question mark over the truthfulness of the witnesses and as such, their statements cannot be taken into consideration.
Reliance is placed on case law reported as (2024 SCMR 1191) "Muhammad Imtiaz Baig and another vs The State through Prosecutor General, Punjab, Lahore and another", which is reproduced herein below: - "The testimony of witnesses who are not only closely related to the deceased but also have a strong motive to falsely implicate the accused has to be appreciated carefully. Reference in this regard may be made to the cases of Muhammad Zaman v. The State and others (2014 SCMR 749) and Abdul Ghafoor v. The State (2022 SCMR 1527)."
10. Four real brothers are charged for the tragic incident, so it is for the prosecution to convince that what for they joined hands and that what for they killed the deceased. An attempt was made to convince that the families were on bad terms and the relations further deteriorated when the deceased expressed his suspicion of theft from his house over the sister of the accused. Neither the Investigating officer could collect evidence in that respect, nor the witnesses could tell the nature of theft. Neither any report was made regarding theft committed from the house of the deceased, nor the witnesses could explain that what articles were stolen. If this Court would accept the motive as is alleged, whether the same could urge the accused to kill the deceased. There is no denial to this fact that the deceased Abdul Sattar, had children from both the wives, so he was equally related to the houses and was equally dear to his wives. We are not ready to accept that for such a trivial matter the accused would brutally kill the deceased and his wife, as the deceased Abdul Sattar, was their brother-in-law. The circumstances do suggest that it was a grudge that the witnesses had against the accused, so were they charged.
11. The medical evidence is in conflict with the ocular account. If the deceased were fired at in the stated manner and from the stated distance, then the nature of injuries would have been different, but the circumstances do not favor the complainant and in such an eventuality no spent bullets could have been collected from the place of the deceased, as the deceased was fired at when he was standing. Similarly, the lady deceased would have received multiple firearm injuries, as she was fired at by four accused, duly armed with lethal weapons. Even in that eventuality no spent bullet could be collected and no bullet marks would have been noted on the door of the room. On one hand the ocular account failed to inspire confidence, whereas on the other the medical evidence is in conflict with the same, so the conflict between the two can be taken into consideration to benefit of the appellants. As is held in case titled Najaf Ali shah Vs the State (2021 SCMR 736), wherein it is held that:- "The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
12. After arrest of the appellants, they were remanded into Police custody. During investigation, the Investigating officer recovered the weapons of offence from an abandoned house belonging to one Asfandyar, on pointation of the appellants. The recovered weapons were sent to the firearms expert alongwith the collected empties and a report was received in positive, but interestingly the process of recovery was not witnessed by an independent witness and even the statement of the owner of the house was not recorded. The Investigating officer could not explain the safe custody of the recovered weapons and its safe transmission to the Forensic Science Laboratory, so this piece of evidence can hardly be taken into consideration, more particularly, when the Investigating officer failed to prove its safe custody and its safe transmission to the laboratory. As laboratory report is supportive in nature, so it alone would hardly hold an accused responsible for the tragic incident. As the witnesses failed to convince their presence on the spot and as the witnesses could not prove that the incident occurred in the mode and manner, so this piece of evidence alone cannot be taken into consideration.
13. It was highlighted that the appellants remained absconders with no explanation to the same, but abscondance alone cannot hold an accused responsible unless the prosecution proves its case through confidence inspiring and trust-worthy witnesses. As the witnesses failed to convince their presence on the spot and as the witnesses could not convince that the incident occurred in the stated manner, so the unexplained abscondance can hardly be taken into consideration and this Court is not inclined to consider the same. As is held by the Apex Court in case titled "Muhammad Tasaweer Vs. Hafiz Zulkarnain and 2 others" (PLD 2009 Supreme Court 53), which reads as follows: - "Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused, person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case. In the instant case, the respondents appeared before the investigating officer of their own and they were not arrested."
14. The cumulative effect of what has been stated above, leads this Court to an irresistible conclusion that the prosecution failed to bring home guilt against the appellants and the learned trial Court fell into error while handing down the impugned judgment. The impugned judgment is suffering from inherent defects, which calls for interference. The instant criminal appeal is allowed, the impugned judgment is set aside and the appellants are acquitted of the charge levelled against them. They be released forthwith, if not required to be detained in any other criminal case.
15. Now diverting to Criminal Revision No.17-P/2025, which the complainant has filed for enhancement of the awarded sentence. As the witnesses failed to convince their presence on the spot and as the witnesses could not establish the guilt of the appellant, so this Court is not in a happy mood to proceed further in the matter, more particularly, when the appellant succeeded to earn acquittal. As the evidence qua involvement of the appellants is disbelieved and the appellants are acquitted of the charge, so the instant criminal revision has lost its utility, the same is dismissed as such.