AURANGZEB, J.- This common judgment shall decide the instant, connected Criminal Appeal bearing No.368- A/2023, titled "Kamran Afzal versus Muhammad Arif, etc" and connected Criminal Revision bearing No.60- A/2023, titled "Kamran Afzal versus Tahir Mehmood etc", being filed against the same judgment dated 13.12.2023, passed by the learned Additional Sessions Judge-IV, Haripur, whereby the appellants have been convicted in case FIR No.534, dated 07.10.2020, charged under sections 302/324/337-F(ii)/447/148/149 P.P.C, Police Station KTS District Haripur. The operative para of which is reproduced below:- "Since, the offence u/s 302 PPC is proved against the accused Tahir Mehmood while, offence under Section 324 read with section 337-F (ii) PPC is also proved against accused Muhammad Arif and Qamar Zaman beyond reasonable doubt, therefore, they are liable to conviction. Since offence is committed all of sudden due to grave and sudden provocation, hence, as a mitigating circumstance, the accused are deserved to leniency in the matter of sentencing. Hence, in view of the above, the accused namely Tahir Mehmood is convicted & sentenced to life imprisonment U/S 302 (b) PPC as Tazir on one count. The convict Tahir Mehmood shall also pay Rs.5,00,000/- (5 lacs) as compensation to the legal heirs of deceased Muhammad Afzal u/s 544-A Cr.PC. In case of non- recovery of said compensation or in case of default in its payment, the convict shall further undergo six month's Rigorous Imprisonment. Similarly accused Muhammad Arif and Qamar Zaman are convicted and sentenced to ten (10) years rigorous imprisonment each under Section 324 PPC for effectively firing upon injured/complainant Kamran Afzal and injured Qasim Afzal. Accused Muhammad Arif is further convicted and sentenced to three (03) years SI u/s 337-F (ii) PPC for causing hurt to injured/complainant Kamran Afzal. Likewise, accused Qamar Zaman is further convicted and sentenced to three (03) years SI u/s 337-F(ii) PPC for causing hurt to injured Qasim Afzal. Both convicts Muhammad Arif and Qamar Zaman shall also pay Rs.100,000/- (One lac) each to each injured as "Daman". In case of nonpayment of "Daman" they further undergo SI for six months. However, all the sentences shall run currently. Benefit of Section 382-B is also extended in favour of the convicts.
While accused Naveed Akhter, Muhammad Shahbaz, Muhammad Arshad, Muhammad Tariq, Muhammad Waheed, Saeed Ahmad and Tariq Javed were acquitted."
2. Facts of the case, in brief, as per Murasila Ex.PA based on FIR Ex.PA are that on 07.10.2020 at 13:10 hours, the complainant namely Kamran Afzal (PW-13) in injured condition alongwith injured Qasim Afzal (PW-14/his real brother) and dead bodies of deceased Muhammad Afzal (his Father), deceased Fazal Elahi (his uncle) and deceased Usman (his real brother) reported the matter to Phul Hussain Shah SI (PW-3) at Emergency Ward Trauma Center, Haripur to the effect that on 07.10.2020 at about 12:00 noon, he himself, his father Muhammad Afzal, uncle Fazal Elahi, his brothers Usman and Oasim Afzal had gone to plough their fields situated at Maira Doyan Aabi. It was 12:00 noon, they saw that accused, Tahir Mehmood, Muhammad Arif, Muhammad Hafeez, Qamar, Muhammad Siraj, Muhammad Saeed, Muhammad Waheed, Muhammad Arshad, Mani, master Naveed, Muhammad Shahbaz, Muhammad Tariq and other Tariq duly armed were erecting boundary wall on their fields. His father, his uncle Fazal Elahi and brother Usman asked Tahir Mehmood to get the land demarcated first through Patwari and then erect/construct boundary wall to separate your land. It was about 12:30 noon, altercation started in between them and Tahir Mehmood alongwith others. Accused Tahir Mehmood, Muhammad Hafiz, Muhammad Arif and Qamar who were armed with firearms who with intention to kill them started firing at them. With the firing of Tahir Mehmood, his father Muhammad Afzal, with the firing Muhammad Hafeez, his uncle Fazal Elahi, with the firing Muhammad Siraj, his brother Usman were severely injured, fell on the ground and died on the spot. With the firing of accused Muhammad Arif, he himself sustained injury on left side of his shoulder, while with the firing of accused Qamar, his brother Qasim Afzal (PW-14) sustained injury. The occurrence was witnessed by his brother, Khanzada Khan (PW-15) and Habib-ur-Rehman besides him. The motive behind the occurrence was that they wanted to take over possession of the land forcibly, hence, the ibid case FIR was registered against them.
3. Arguments and record perused.
4. Perusal of the available record reveals that the prosecution's case is that on 07.10.2020 at around 1:10 p.m., the complainant, Kamran Afzal, who was himself injured, along with another injured person, namely Qasim Afzal (his real brother), and in the presence of the dead bodies of Muhammad Afzal (his father), Fazal Elahi (his paternal uncle), and Usman (his real brother), reported the matter to the local police officials present at the Emergency Ward of the Trauma Center, Haripur. The complainant narrated that on the same day at about 12:00 noon, he, along with his father Muhammad Afzal, his uncle Fazal Elahi, and his brothers Usman and Qasim Afzal, had gone to their agricultural land situated at Maira Doyan Abi with the intent to plough the fields.
Upon reaching the site, they observed that a group of individuals, later identified as the accused persons, namely, Tahir Mehmood, Muhammad Arif, Muhammad Hafeez, Qamar, Muhammad Siraj, Muhammad Saeed, Master Waheed, Arshad, Tariq, Mani, Naveed, Shahbaz, and another individual also named Tariq, were present on their land and were in the process of constructing a boundary wall, despite not having obtained any prior demarcation of the land.
5. Upon noticing this, the complainant's father, his uncle Fazal Elahi, and his brother Usman confronted accused Tahir Mehmood and requested him to first get the land demarcated through the concerned revenue official, i.e., the Patwari, before proceeding with the construction of any boundary wall to separate their respective portions. This led to a verbal altercation at around 12:30 p.m. between the complainant's party and the accused persons. During this confrontation, the situation escalated, and accused Tahir Mehmood, Muhammad Hafeez, Muhammad Siraj, Muhammad Arif, and Qamar, who were all armed with firearms, opened direct fire on the complainant party with a clear and premeditated intention to kill them.
6. As a result of the gunfire, Muhammad Afzal (complainant's father) was shot by accused Tahir Mehmood and sustained fatal injuries. Fazal Elahi (complainant's uncle) was hit by the firing of accused Muhammad Hafeez and succumbed to his injuries. Similarly, Usman (complainant's real brother) was fired upon by accused Muhammad Siraj, resulting in his immediate death at the spot.
The complainant Kamran Afzal himself sustained a gunshot injury on the left side of his shoulder due to the firing of accused Muhammad Arif, whereas his brother Qasim Afzal was injured due to the firing of accused Qamar.
7. The entire occurrence was not only witnessed by the complainant but was also seen by two other eyewitnesses, namely Khanzada Khan and Habib-ur-Rehman, who were also present at the place of occurrence and sustained injuries during the incident. The motive behind the gruesome attack, as stated in the First Information Report (FIR). was that the accused persons were attempting to unlawfully and forcibly take possession of the complainant party's land and resorted to violence when confronted and stopped from doing so.
8. There is no doubt that ten accused persons were charged with offences allegedly committed in furtherance of their common object. Specifically, accused Tahir Mehmood was charged with the murder of deceased Muhammad Afzal; accused Muhammad Arif was charged with causing firearm injury to the complainant Kamran Afzal; and accused Qamar was charged with causing firearm injury to Qasim Afzal. The remaining accused, namely Naveed Akhter, Muhammad Shahbaz, Muhammad Arshad, Muhammad Tariq, Muhammad Waheed, Saeed Ahmad, and another individual by the name of Tariq Javed, were charged with the offence of being armed and participating in the illegal act of erecting a boundary wall on the land claimed by the complainant party.
9. Under Sections 148 and 149 of the Pakistan Penal Code (PPC), the concept of "common object" must be established through a careful evaluation of various factual aspects of the case. These include the nature of the weapons with which the members of the assembly were armed, their movements, their conduct at the place of occurrence, the acts of violence attributed to them individually or collectively, and the consequences that resulted from their alleged acts. It is a settled principle of law that no person can be convicted under Sections 148 or 149 PPC unless it is proven beyond reasonable doubt that he was a member of an unlawful assembly and that the said assembly used force or committed violence in furtherance of the common object. Mere presence at the scene or casual association with the principal offenders is not, by itself, sufficient to hold each member of such an assembly criminally liable for the acts committed by others, unless there is cogent and reliable evidence demonstrating that each accused intended to commit, or was aware of the likelihood of, the commission of the offence in question. In the present case, while examining the ocular testimony of the complainant, namely Kamran Afzal (PW-13), it becomes evident that he did not allege during his deposition that the accused persons Naveed Akhter, Muhammad Shahbaz, Muhammad Arshad, Muhammad Tariq, Muhammad Waheed, Saeed Ahmad, and Tariq Javed were armed with any weapon or that they actively participated in the violent assault. His statement merely places them at the scene. Moreover, another important eye- witness, Khanzada Khan (PW 15), categorically stated during trial that out of the thirteen accused, only five individuals were armed and had actively participated in the incident, while the remaining accused merely stood at a distance without any active role or participation in the commission of violence.
10. Therefore, from the evidence brought on record, there is no direct or inferential proof that the aforementioned accused persons either used force, committed any overt act of violence, or were armed with weapons during the occurrence. As such, the application of Sections 148 and 149 PPC against these particular accused is not warranted. It is a cardinal rule of criminal jurisprudence that each accused is liable only for the specific act attributed to him, and in the absence of any collective liability being proven, individual culpability must be ascertained strictly on the basis of evidence. Hence, the doctrine of vicarious liability under Section 149 PPC is inapplicable in the circumstances of the present case with respect to these accused persons.
11. Additionally, the accused were also charged under Section 447 PPC for criminal trespass.
However, from the evidence adduced by the prosecution's own witness, namely the revenue official Patwari Halqa (PW 11), it stands established that accused Tahir Mehmood is a co-sharer in the disputed land bearing Khasra No.903/456, as evidenced by mutation No.6239. Furthermore, the certified copy of Farad Jamabandi (Ex.PW11/2) also corroborates the fact that accused Tahir Mehmood is recorded as a co-sharer in the aforementioned property. In law, when a property is jointly owned, every co-sharer is deemed to be in possession of each and every portion of the land until it is partitioned officially through the proper revenue channel. Therefore, no co-sharer can be held liable for trespass in relation to joint property unless it is shown that he entered with criminal intent, i.e., with the intention to commit an offence, or to intimidate, insult, or annoy any other co- sharer who might be in possession.
12. It is also pertinent to note that Section 441 PPC, which defines criminal trespass, requires proof of such specific intent at the time of entry. However, in the present case, there is a complete absence of any direct or circumstantial evidence suggesting that the accused entered the property with the requisite criminal intent. On the contrary, the overall tenor of the prosecution's case reflects that the accused party believed themselves to be entitled to the property and sought to assert their perceived right by taking possession and erecting a boundary wall, albeit without lawful demarcation or partition proceedings. Thus, while the conduct of the accused may raise issues of civil dispute over possession, it does not meet the legal requirements to constitute the offence under Section 447 PPC.
13. In view of the foregoing analysis, the charge under Section 447 PPC is not made out, and similarly, the application of Sections 148 and 149 PPC against those accused who neither carried weapons nor participated in any overt act of violence cannot be sustained on the record, hence, the findings of learned trial court to that extent are in accordance with law and thus same are maintainable.
14. The case of the prosecution primarily rests upon the ocular account furnished by injured eyewitnesses and is further supported by corroborative circumstantial evidence The direct evidence comprises the statements of the injured complainant Kamran Afzal (PW-13), injured witness Qasim Afzal (PW-14), and another independent eyewitness Khanzada Khan (PW15), all of whom provided detailed narrations of the incident and the roles attributed to the respective accused persons. Their depositions are consistent, mutually corroborative, and provide a coherent sequence of events surrounding the occurrence.
15. In addition to the eyewitness account, the prosecution also relied on significant circumstantial and forensic evidence to establish the guilt of the accused. Among the notable recoveries are a 30-bore pistol (Ex.P-24), which was recovered from the possession of accused Qamar Zaman, and another 30-bore pistol (Ex. P-8), which was recovered pursuant to the disclosure and on the pointation of accused Muhammad Arif. Furthermore, several crime scene articles were collected, including spent cartridges (crime empties) and bloodstained earth from the place of occurrence, all of which were duly preserved and sent to the Forensic Science Laboratory (FSL) for examination.
16. Admittedly, the incident in question occurred in broad daylight, and there is no denial of the fact that both parties were well known to each other, having a history of prior disputes and animosity.
The occurrence was immediately reported to the police at the Trauma Center, Haripur, within a reasonable time, approximately 40 minutes after the incident. This prompt reporting lends credibility to the prosecution's version, particularly when considered in light of the circumstances.
The distance from the place of occurrence to the hospital is roughly 2 to 3 kilometers, and within that short span of time, the complainant and others managed to shift three dead bodies along with two injured persons to the hospital, and report the matter to the authorities.
17. Such promptness in reporting, especially in a traumatic situation involving multiple deaths and injuries, rules out the possibility of undue deliberation, post-incident consultation, or any manipulative fabrication or false implication. It would be highly improbable, if not impossible, for the complainant and other injured persons, grappling with the sudden loss of close family members including a father, brother, and uncle, while also dealing with their own injuries, to have had the mental capacity, time, or motive to concoct a false story or substitute real culprits with innocent individuals in such a limited and emotionally charged timeframe.
18. Moreover, all the accused persons were nominated with specific attribution of roles in the commission of the offence. Their identities, acts, and the weapons/firearms allegedly used by each have been clearly detailed by the prosecution witnesses. The specificity with which the prosecution has charged each accused reflects consistency in the eyewitness accounts and supports the claim that they were not generalized or speculative allegations, but based on actual observations during the incident.
19. There is no apparent motive or rationale that could suggest any false implication or substitution of the real offenders. It does not appeal to reason or the prudence of a reasonable mind that the complainant would absolve or omit the actual culprits responsible for the brutal murder of his father, uncle, and brother, as well as the injuries to himself and his surviving brother, and instead falsely implicate innocent individuals without any cogent reason or prior enmity. In such cases involving multiple casualties within a family, the natural course of conduct is to ensure justice by naming the true assailants.
Therefore, the possibility of substitution of accused persons is effectively ruled out, and the credibility of the prosecution's case stands reinforced by the facts and circumstances surrounding the immediate and consistent reporting of the incident. In this regard reliance is placed on the judgment of august Supreme Court of Pakistan rendered in case titled Liaqat Hussain Versus The State (2024 SCMR 1600), wherein it was held:- "First Information Report of the occurrence was promptly lodged by PVV.10 who is relative of the deceased, injured as well as the convict. Record does not reveal of any motive on the part of PW.10 and PW.12, being eye-witnesses of the occurrence to falsely implicate the convict."
20. The postmortem examination of deceased Muhammad Afzal was conducted by the Medical Officer and is duly documented vide Postmortem Report Ex.PW-5/5. As per the findings of PW-5 (the medical expert), the deceased sustained multiple firearm injuries. The first injury noted was a 1-inch firearm entry wound located on the left iliac fossa, approximately 3 inches below and lateral to the umbilicus. The second injury was a 1/2-inch circular firearm entry wound situated at the midline of the right knee. The third was another 1/2-inch firearm entry wound observed on the left upper side of the chest, just below the left shoulder tip.
21. In addition to these entry wounds, two corresponding exit wounds were also identified during the examination. One was a 1-inch exit wound present on the left side of the back, on the medial aspect of the scapula, corresponding to the chest injury. Another 1-inch exit wound was found approximately 5 inches above the knee, on the medial side of the thigh, corresponding to the injury on the right knee. These injuries indicated the passage of bullets through vital parts of the body, causing fatal trauma.
22. Furthermore, during the course of the postmortem, one deformed metallic bullet was recovered from the body of the deceased Muhammad Afzal. The recovered projectile was weighed and found to be approximately 4.7 grams, which was duly preserved and later sent for forensic examination.
The Medical Officer opined that the cause of death was due to firearm injuries, which were sufficient to cause death in the ordinary course of nature. The estimated time between death and postmortem examination was assessed to be approximately one hour, with the autopsy being conducted at around 1:30 p.m., thereby fixing the time of death at approximately 12:30 p.m.
23. These medical findings are consistent with the ocular account furnished by the prosecution witnesses and corroborate the claim that the deceased was shot with firearms resulting in instantaneous death. The nature, location, and severity of the injuries support the prosecution's version of a targeted and violent attack with lethal intent.
24. The injured prosecution witness Qasim Afzal (PW-14) sustained a firearm injury measuring approximately 1 inch in diameter, located on his left shoulder near the neck region. Likewise, another injured prosecution witness, Kamran Afzal (PW-13), received a firearm entry wound measuring half an inch on the left upper back. This injury had a corresponding exit wound measuring about 1 inch, located on the upper aspect of the shoulder, around the middle of the clavicular line. The medico-legal certificates (MLCs) of both injured witnesses were duly prepared and placed on record as Ex. PW-5/1, Ex. PW-5/2, Ex.PW-5/3, and Ex. PW-5/4 respectively, by the Medical Officer who conducted their clinical examination. These medical documents have been found to be consistent with the ocular account of the incident as narrated in the First Information Report (FIR) and substantiate the prosecution's version regarding the occurrence. The nature, seat, and dimension of the injuries clearly indicate that both witnesses were indeed present at the crime scene and were targeted with firearm weapons, which lends further credibility to their testimonies and supports the prosecution's stance in this regard. In this regard wisdom is derived from the judgment of Honourable Supreme Court of Pakistan delivered in case titled Imran Mehmood versus The State & another (2023 SCM R 795), wherein it was held that:- "Even otherwise, if the confessional statement of the appellant is excluded from consideration, there is sufficient material available on the record in the shape of unbiased and unimpeachable ocular account supported by medical evidence, motive and recovery to sustain conviction of the appellant."
25. During the course of spot inspection, the Investigating Officer (PW-16) meticulously secured and documented various items of evidentiary value through recovery memos, thereby ensuring the proper preservation of the crime scene. As per the recovery memo Ex.PW-15/1, he collected bloodstained cotton from the place where the deceased, Muhammad Afzal, had fallen, and sealed the same in parcel No.1. Similarly, bloodstained cotton was also taken from the spot where injured Kamran Afzal was found, which was sealed in parcel No.4. Furthermore, bloodstained material from the location where injured Qasim Afzal had collapsed was taken into possession and sealed into parcel No.5.
26. In addition to these biological recoveries, the Investigating Officer also secured crucial ballistic evidence. He recovered two empty cartridge shells of 30 bore caliber, marked as Ex.P-9, from the location associated with accused Tahir Mehmood, which were sealed into parcel No.6. From the place linked to accused Muhammad Arif, three empty 30 bore cartridges, marked as Ex.P-12, were collected and sealed into parcel No.9. Similarly, two 30 bore cartridge empties, marked as Ex.P-13, were recovered from the scene connected to accused Qamar Zaman and sealed in parcel No.10.
27. Moreover, the garments worn by the deceased Muhammad Afzal and the injured individuals at the time of the occurrence, bearing blood and other forensic evidence, were taken into possession through recovery memos Ex.PW-4/2 and Ex.PW-15/2. Additionally, a sealed phial containing a spent bullet recovered from the body of deceased Muhammad Afzal during postmortem examination was also taken into custody by the Investigating Officer and sealed as parcel No.11. All the aforementioned parcels were subsequently sent to the Forensic Science Laboratory (FSL) for examination. The FSL reports Ex.PW-16/17 and Ex.PVV-16/23 returned positive results, corroborating the linkage of the recovered blood and bullet with the incident in question, thereby further affirming the location and occurrence of the crime.
28. Furthermore, pursuant to the disclosure made by accused Muhammad Arif during investigation, a 30 bore pistol, allegedly used in the commission of the offence, was recovered as documented through recovery memos Ex.PVV-4/2 and Ex.PW-9/12. The said weapon, along with the recovered empty cartridges from the scene (parcels No.6, 7, 8, 9, 10, and 17), was forwarded to the ballistic expert for comparison and analysis. The ballistic report Ex.PW-16/32 was received in the affirmative, confirming that the weapon recovered was indeed used in the firing incident, thereby lending strong corroboration to the prosecution case.
29. The injured complainant Kamran Afzal (PW-13) unequivocally and categorically implicated the accused persons with specific attribution of roles and precise account of the firearm injuries inflicted upon himself, his injured brother Qasim Afzal, and the three deceased individuals, namely, Muhammad Afzal (his father), Fazal Elahi, and Usman. In the prompt report lodged at Trauma Center, Haripur, he narrated the incident in detail, specifying the overt acts committed by each accused and the weapon used by them. His account is not only direct but also supported by ocular and medical evidence on record.
30. During the trial proceedings, the complainant (PW-13), who is also an injured eyewitness, remained unwavering in his deposition and reaffirmed the accusations initially leveled in the FIR.
His testimony was corroborated by the injured witness Qasim Afzal (PW-14) and another ocular witness, who all consistently stated that a dispute had arisen over the construction of a boundary wall by the accused party on property claimed by the complainant's side. They specifically held the accused responsible for the fatal shooting of Muhammad Afzal, Fazal Elahi, and Usman, and for causing firearm injuries to the complainant himself and his brother.
31. All three eyewitnesses are in complete harmony in their statements, asserting with clarity that accused Tahir Mehmood fired upon Muhammad Afzal (deceased), accused Muhammad Arif targeted the complainant Kamran Afzal (PW-13), and accused Qamar Zaman fired at and injured Qasim Afzal (PW-14). These depositions are not only coherent and mutually reinforcing but also bear the hallmark of credibility.
32. The appellants subjected the prosecution witnesses to searching and protracted cross- examination, yet they remained steadfast, consistent, and unshaken in their respective narratives.
Their statements were straightforward, detailed, and free from material contradictions, and they corroborated each other on all vital aspects of the occurrence. Not a single material discrepancy or contradiction was brought on record by the appellants that could cast a shadow of doubt over their presence at the scene or their account of the incident.
33. The seat, nature, and location of injuries sustained by the complainant Kamran Afzal and the injured witness Qasim Afzal were such that they could not possibly be self-inflicted. This medical evidence irrefutably confirms their presence at the spot and rules out any element of fabrication.
The medical reports further reinforce and align with the prosecution's version and substantiate the oral evidence of the injured witnesses, thereby providing strong corroboration to the prosecution's case as a whole.
34. Muhammad Bilal, an official of Islamabad High Court (IHC), and Constable Khalid of Frontier Constabulary (FC), appeared before the Investigating Officer and handed over bloodstained garments belonging to the deceased Muhammad Afzal, as well as the garments worn by the injured complainant Kamran Afzal and the injured witness Qasim Afzal at the time of the occurrence. These articles of clothing, bearing visible signs of firearm injuries and bloodstains, were material evidence substantiating the violent nature of the incident and the involvement of firearms.
35. Additionally, a sealed phial marked as Ex.P-11, containing a spent bullet that had been surgically recovered from the dead body of deceased Muhammad Afzal during postmortem examination, was also produced before the Investigating Officer by the Medical Officer of Trauma Center, Haripur. The said bullet and the garments were duly taken into possession by the Investigating Officer and sealed into parcels No.1, 2, 3, 4, 5, and 16 in accordance with proper evidentiary protocol to ensure the chain of custody and preservation of forensic integrity.
36. These sealed parcels were subsequently sent to the Forensic Science Laboratory (FSL) for detailed analysis. The FSL reports, when received, were found to be positive and in consonance with the prosecution's case. The forensic findings affirmed the presence of human blood on the garments and established the ballistic linkage of the bullet (Ex. P-11) to the weapon of offence recovered during investigation. Thus, the FSL reports significantly bolstered the prosecution's narrative, lending independent scientific corroboration to the ocular and medical evidence on record.
37. As regards the question of misidentification or non-identification of the accused persons, it is noteworthy that the parties are not strangers to each other. They are residents of the same locality and were already known to one another due to a longstanding land dispute. This prior familiarity rules out the possibility of mistaken identity. Moreover, the unfortunate incident took place in broad daylight, at approximately 12:30 p.m., under clear visibility conditions. In such circumstances, the possibility of misidentification is not only improbable but entirely untenable.
38. The prosecution witnesses, including the injured complainant, the injured eyewitness, and other ocular witnesses, were all present at the scene of occurrence at the relevant time. Their presence has not been seriously challenged or shaken during the course of cross-examination. On the contrary, their testimonies have remained consistent, credible, and unimpeached, thereby reinforcing the fact that they were indeed present at the time and place of the incident. The appellants could not elicit anything from their cross-examinations that might create reasonable doubt about their identity of the assailants or their presence at the spot. In this regard reliance is placed on the judgment of apex court delivered in case titled Muhammad Akbar alias Bhola and others versus The State and others (2019 SCMR 2036), wherein it was held that:- "The occurrence in this case had taken place in broad daylight and an FIR in respect of the same had been lodged with sufficient promptitude wherein the present appellants had been nominated as the culprits and specific roles had been attributed to them therein. The prosecution had produced three eye-witnesses before the trial court and they were Saeed Ahmed complainant (PW7), Muhammad Nadeem (PW9) and Abdul Sattar (PVV10) out of whom two of the eye- witnesses were natural witnesses being inmates of the house wherein the occurrence had taken place and one of such natural witnesses was also an injured witness. All the said eye-witnesses had made consistent statements before the trial court and the ocular account furnished by them had received sufficient support from the medical evidence. The motive set up by the prosecution had duly been proved by Abdul Latif (PW8) who was the injured victim of the incident forming the motive. During the investigation daggers had been recovered from the appellants' custody which daggers had subsequently been confirmed by the Chemical Examiner and the Serologist to be stained with human blood. Both the courts below had undertaken an exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of the appellants having been proved to the hilt and upon our own independent evaluation of the evidence we have not been able to take a view of the matter different from that concurrently taken by the courts below."
39. Furthermore. the ocular account furnished by the prosecution witnesses is fully corroborated by the medical evidence on record. The seat, nature, and number of injuries found on the bodies of the deceased and the injured persons perfectly align with the prosecution's version as narrated by the eyewitnesses. There exists no material contradiction between the oral and medical evidence, which adds considerable weight to the credibility of the prosecution's case. Hence, in view of the foregoing, the argument regarding mistaken identity or false implication is devoid of merit and is accordingly repelled.
40. There is a well-established and substantiated motive behind the occurrence, which has been clearly articulated in the First Information Report (FIR) and has remained consistent throughout the trial proceedings. The existence of motive was not seriously denied or challenged by the appellants during the course of the trial before the learned Trial Court. According to the prosecution's stance, the motive for the commission of the offence stemmed from a longstanding land dispute between the parties. It was alleged that the accused persons were attempting to forcibly take possession of a piece of joint land, which was in the possession of the complainant's side.
41. In order to prove the motive, the prosecution produced Patwari Halqa (PW-11), who appeared before the Court and submitted relevant revenue documents, including the Fard Jamabandi for the year 2011-2012, which was duly exhibited as Ex.PW-11/2. A perusal of this revenue record confirms that the deceased Muhammad Afzal, deceased Fazal Elahi, and the accused Tahir Mehmood were co-sharers in the disputed joint landed property. This documentary evidence lends credence to the prosecution's claim that there was an underlying land dispute which had created serious tension between the parties prior to the occurrence.
42. The motive, therefore, is not only plausible but stands duly proved through documentary evidence as well as corroborated by the oral account of prosecution witnesses. It provides a rational explanation for the extreme conduct of the accused and the tragic outcome of the incident. Thus, a strong and well-founded motive clearly existed behind the commission of the offence, which further reinforces the prosecution's version and leaves no room to doubt the intentional and targeted nature of the attack.
43. It is indeed correct that prosecution witnesses PW-13 to PW-15 are closely related not only to each other but also to the deceased persons. However, it is well-settled by now that mere relationship or kinship of witnesses with the deceased or the complainant is not sufficient ground, by itself, to discard their testimony, particularly when their evidence is otherwise found to be consistent, coherent, and trustworthy. In the present case, the ocular account furnished by these witnesses is straightforward, confidence-inspiring, and free from material contradictions. Their depositions have withstood the test of cross-examination and are duly corroborated by the medical evidence on record.
44. Furthermore, the First Information Report (FIR) was lodged with promptitude, within 40 minutes of the occurrence, which indicates spontaneity and rules out any possibility of deliberation or fabrication The distance between the place of occurrence and the police station is approximately 3 to 4 kilometers, and the FIR was registered without any undue delay. Such prompt reporting further enhances the credibility of the prosecution version and negates the possibility of false implication. No plausible motive or strong reason has been suggested by the appellants as to why the complainant party would falsely implicate them while letting the real culprits go unmentioned.
45. Moreover, despite rigorous cross-examination by the appellants, no material inconsistencies or contradictions could be brought to light in the statements of the injured complainant (PW-13), the injured eyewitness (PIN-14), or the independent eyewitness (PW-15). Their accounts remain mutually corroborative and consistent on all material particulars of the incident. Therefore, there exists no justification to disbelieve or reject their testimony merely on the basis of their relationship with the deceased, particularly when their presence at the scene is established by their injuries and confirmed through medical and forensic evidence 46. Learned counsel for the appellants raised an objection contending that accused Tahir Mehmood and Muhammad Arif, as well as witness Khanzada Khan, were allegedly not present at the crime scene at the time of occurrence, as per the Call Detail Record (CDR) data and certain affidavits purportedly collected by the Investigating Officer (1.0) during the investigation. However, this contention does not hold merit for multiple reasons.
47. Firstly, none of the deponents of the affidavits relied upon by the appellants were ever produced before the learned Trial Court for examination or cross-examination. The affidavits remained unsubstantiated and, therefore, cannot be treated as admissible or reliable evidence in the absence of their authors stepping into the witness box to affirm their contents under oath. It is a settled principle of law that an unproved document has no evidentiary value and cannot be relied upon for discrediting the prosecution's case.
48. Secondly, the 1.0 did not obtain or produce any authentication from the concerned cellular companies to verify the ownership of the SIM numbers allegedly reflected in the CDRs. In the absence of accompanying ownership certificates linking the SIM numbers to the specific accused or the relevant individuals, the CDRs alone cannot be treated as conclusive or credible evidence to determine the presence or absence of any person at a particular location.
49. Hence, mere collection of CDR data, without verifying and proving the ownership of the SIMs involved, or submission of affidavits without producing their deponents before the Court, lacks evidentiary worth and cannot be used as a basis to disbelieve the otherwise consistent and corroborated version of the prosecution. These omissions render the objection raised by the appellants devoid of substance and incapable of displacing the presumption of truth attached to the prosecution's case, which stands supported by ocular, medical, and forensic evidence. In this respect reliance is placed on the judgment of Honourable Supreme Court rendered in case titled Mian Khalid Pervez versus The State through Special Public Prosecutor and another (2021 SCMR 522), wherein it was held that:- "The defence evidence recorded by Najam Riaz (DW-1) and Nouman Khan Bangash (DW-2), pertains to calls data of Appellant's mobile phones and that of the cell phones of Investigating Officer (1.0.) (Ex. DB to DE and DJ). A perusal of these documents would reveal that these were general in nature. Neither relevant entries were pointed out in the data nor the voice record transcripts were produced which, if available, could have made a point. There is nothing on the record in this regard to help out the Appellant in support of his allegations made in defence. Mere production of CDR DATA without transcripts of the calls or end to end audio recording cannot be considered/used as evidence worth reliance. Besides the call transcripts, it should also be established on the record that callers on both the ends were the same persons whose calls data is being used in evidence. While considering such type of evidence extra care is required to be taken by the Courts as advancement of science and technology, on the other hand, has also made it very convenient and easy to edit and make changes of one's choice as highlighted and discussed in the case of Ishtiaq Abmad Mirza supra. We also can lay hand on the case of Azeem Khan v.
Mujahid Khan (2016 SCMR 274) in this regard. So, the CDR DATA produced by the said witnesses is of no help to the Appellant and cannot be termed as an evidence worth reliance to shatter the direct evidence adduced by the prosecution."
50. The testimonies of PW-13 and PW-14, both of whom are injured witnesses bearing visible and medically verified injuries on their persons, carry a strong presumption of truth and are entitled to greater evidentiary weight. Their depositions were natural, consistent, and confidence-inspiring, and therefore cannot be brushed aside lightly or ignored without compelling reasons. It is a settled principle of law that the testimony of an injured witness is considered to be of higher probative value, as such a witness would not ordinarily let the real culprits go unpunished and falsely implicate innocent persons, especially when they themselves have suffered harm in the same incident.
51. No doubt, the record reveals the presence of certain minor discrepancies in the statements of PW-13, PW-14, and PW-15, particularly with regard to peripheral matters such as the exact number of cemented pillars lying at the spot, the precise manner in which the injured and deceased were transported from the crime scene to the main road and subsequently to the hospital, whether by passerby, by a relative of the complainant's party namely Mr. Babar, or through the arrival of Rescue 1122. However, such minor inconsistencies are inconsequential and are to be expected from truthful witnesses who observed a traumatic event under distressing circumstances. These variations do not go to the root of the prosecution's case and, rather than discrediting the witnesses, they demonstrate the natural fallibility of human observation. More importantly, the core of the prosecution's case, the identity of the assailants, the sequence of the firing, the location of the occurrence, and the injuries sustained, has remained intact and has been fully corroborated by the medical evidence on record, which aligns with the ocular account. The established motive, previously discussed in detail, also lends support to the prosecution's version. In this regard reliance is placed on the judgment of Honourable Supreme Court rendered in case titled Muhammad Usama versus The State (2022 SCMR 2143), wherein it was held that:- "On account of lapse of memory owing to the intervening period, some minor discrepancies are inevitable and they may occur naturally but the accused cannot claim benefit of such minor discrepancies."
52. In view of the consistent and corroborated ocular account, the presence of the accused, Tahir Mehmood, Muhammad Arif, and Qamar Zaman, at the scene of the crime stands confirmed. The site plan further supports their presence at the relevant location alongside the complainant and the injured witnesses. The recovery of blood from various points at the scene, recovery of spent crime empties of 30 bore pistols, the postmortem reports of the deceased persons, and medico- legal certificates of the injured all serve to interlock and reinforce the prosecution's case.
53. Furthermore, neither the time nor the venue of the occurrence has been denied by the appellants during cross-examination. On the contrary, both aspects appear to have been impliedly admitted, thus further strengthening the prosecution's case. In the totality of circumstances, the guilt of the accused persons has been proved beyond reasonable doubt through credible, trustworthy, and corroborated evidence.
54. So far as Criminal Appeal No. 368-A/2023 filed by the complainant/appellant Kamran Afzal against the acquittal of accused/respondents namely Naveed Akhtar, Muhammad Shahbaz, Muhammad Arshad, Muhammad Tariq, Muhammad Waheed, Saeed Ahmad, and Tariq Javed is concerned, it is observed that the evidentiary record does not support the complainant's challenge to their acquittal. The complainant himself, Kamran Afzal (PW-13), who also happens to be an injured eyewitness, did not depose during his examination-in-chief before the learned trial court that the aforementioned accused were duly armed when they allegedly appeared at the scene of occurrence. This omission significantly weakens his version as recorded in the Murasila (initial complaint/report), wherein it was stated that all the accused were armed and participated actively. Such a discrepancy casts serious doubt upon the reliability of his version regarding the specific role of these accused persons.
55. Moreover, the testimony of another eyewitness, Qasim Afzal (PW-15), who is also closely related to the complainant and a witness of the occurrence, further dilutes the prosecution's case. He categorically stated that out of the thirteen accused, only five were armed and actively took part in the incident, while the remaining accused, including the respondents herein, merely stood at some distance from the scene and did not participate in the commission of the crime. This admission by PIN-15 also negates the prosecution's allegation of a joint and active role of all accused in the occurrence.
56. Furthermore, no independent evidence has been brought on record to establish the overt use of force or violence by the said respondents, nor has it been proved that they were armed with any weapons at the time of the occurrence The investigative record, particularly the testimony of Sajid Nawaz, Inspector/SHO (PVV-10), reveals that no weapon was recovered from accused Muhammad Shahbaz. As regards the recoveries made from accused Muhammad Arshad, Muhammad Waheed, and Muhammad Tariq, the weapons allegedly recovered were not sealed into parcels as required under the law, nor were they sent to the Forensic Science Laboratory or any Arms Expert for examination to establish whether the same were used during the occurrence. Hence, these recoveries are of no evidentiary value and cannot be linked to the commission of the offence.
57. In the totality of circumstances, the prosecution has failed to bring home the charge against accused Naveed Akhtar, Muhammad Shahbaz, Muhammad Arshad, Muhammad Tariq, Muhammad Waheed, Saeed Ahmad, and Tariq Javed beyond a reasonable doubt. The principles of criminal justice mandate that in case of doubt, the benefit must go to the accused. Therefore, the learned trial court, while appreciating the evidence in its true legal perspective, has rightly extended the benefit of doubt to the aforementioned accused persons and acquitted them of the charges. This Court finds no illegality or infirmity in the findings of the trial court warranting interference in the acquittal, and thus the appeal to that extent stands devoid of merit.
58. The criminal revision bearing No.60-A/2023 filed by the complainant/petitioner namely Kamran Afzal for enhancement of sentence awarded to the respondents (appellants namely Tahir Mehmood, Muhammad Arif and Qamar Zaman) is concerned, tt is an established principle of criminal jurisprudence that while awarding sentence, the court must not only consider the gravity of the offence but also the surrounding circumstances under which the offence was committed, including any mitigating factors. In the instant case, it emerges from the evidence on record that the offence was not the result of any premeditated design or deep-rooted enmity. Rather, it occurred all of a sudden in a situation involving grave and sudden provocation, which temporarily deprived the accused of the power of self-control. Such provocation, being immediate and intense, led to an impulsive reaction rather than a deliberate act. This aspect of sudden provocation, supported by the facts and circumstances brought on record, qualifies as a mitigating circumstance within the contemplation of law. It considerably reduces the moral blameworthiness of the accused, distinguishing the case from one of calculated or cold-blooded intent. The law, while ensuring that justice is served, does not ignore the human element and recognizes that a person may act under a spontaneous and intense emotional impulse when faced with extreme provocation.
59. In view of the above, and in light of the well recognized principles enshrined in the doctrine of proportionality of punishment, this Court is of the considered opinion that the accused are entitled to some degree of leniency in the matter of sentencing. The mitigating factor of grave and sudden provocation, having been duly established, warrants a reduced sentence rather than the maximum prescribed under law. Justice, in its truest sense, demands not only punishment for the wrong but also compassion where the circumstances so justify. Accordingly, a lesser sentence would suffice to meet the ends of justice in this case.
60. For what has been discussed and observed in detail hereinabove, this Court finds no illegality, perversity, or material irregularity in the impugned judgment dated 13.12.2023 passed by the learned trial court. The findings recorded therein are well-reasoned, based on proper appreciation of evidence, and in consonance with the settled principles of criminal law and procedure. As such, the impugned judgment does not warrant any interference by this Court in appellate jurisdiction.
Consequently, the instant, connected criminal appeal bearing No. 368-A/2023 and the criminal revision bearing No. 60-N2023, having no merit, are hereby dismissed in toto. The judgment of the learned trial court is accordingly upheld and maintained in its entirety.