2026 P Cr. L J 459

 

2026 P Cr. L J 459

[Islamabad]

Before Sardar Muhammad Sarfraz Dogar, ACJ and Inaam Ameen

Minhas, J

Syed HAMMAD NAQVI---Appellant

Versus

The STATE---Respondent

Jail Appeal No. 176 of 2022, decided on 19th May, 2025.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 376, 380, 411 & 34---Qanun-e-Shahadat (10 of 1984), Art.

129(g)---Qatl-i-amd, rape, theft in a dwelling house, tent or vessel,

dishonestly receiving stolen property, common intention---

Appreciation of evidence---Withholding material witnesses---Effect---

Adverse presumption---Accused were charged for committing rape

and murder of the minor daughter of the complainant---In the

present case, the first person, who discovered that tragic scene, was

younger sister of the deceased, who was merely seven years old at

that time---Upon seeing her sister hanging, the young girl

immediately ran to inform a neighbourer---In turn, said neighbour

promptly called the complainant and told him over the phone about

the death of his daughter---Shortly thereafter, the deceased's mother

also arrived at the scene, she saw her daughter hanging with the

iron rod and she herself brought down the dead body---However,

astonishingly none of those three key persons, the younger sister of

the deceased, the neighbourer and the mother of deceased was

produced before the Court as a witness to testify regarding what

they had seen---Prosecution did not put forward the explanation for

what reasons it failed to produce these crucial witnesses before the

Court, thus it withheld the necessary evidence that could have

directly established the circumstances, in which the deceased was

found---Due to this omission, there was no direct, firsthand evidence

available on the record to conclusively prove that the deceased was

indeed found hanging with the iron rod by a dupatta as claimed---

Therefore, the failure to produce those primary witnesses created

serious doubts in the prosecution case---Moreover, adverse

inference was drawn under Art.129(g) of Qanun-e-Shahadat, 1984,

that had such witnesses been produced by the prosecution during

the trial, they would not have supported the prosecution's case---

Appeal against conviction was allowed, in circumstances. Muhammad Nasir Butt and 2 others v. The State and others 2025

SCMR 662 rel.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 376, 380, 411 & 34---Qatl-i-amd, rape, theft in a dwelling

house, tent, or vessel, dishonestly receiving stolen property,

common intention---Appreciation of evidence---Credibility of the

prosecution case suspicious---Accused were charged for committing

rape and murder of the minor daughter of the complainant---During

cross-examination, Investigating Officer admitted that the place of

occurrence was a small house, measuring approximately 2 /3 marlas

and complainant during cross-examination also confirmed the same

and further admitted that allthe family members including one

sister, three brothers, mother, wife and four children were residing

in the small house---Although the complainant explained his

absence and that of his wife on the day of the occurrence, there was

no explanation on the part of the prosecution or any other evidence

to establish that the other family members, who were also living in

the same house, were absent at the time of the occurrence---In a so

small and crowded house, it was highly unlikely that such a tragic

incident could take place without the knowledge or presence of

other family members---Prosecution's failure to address this critical

point seriously undermined the credibility of its case, making the

entire prosecution story suspicious---Appeal against conviction was

allowed, in circumstances.

(c) Penal Code (XLV of 1860)---

----Ss. 302(b), 376, 380, 411 & 34---Qatl-i-amd, rape, theft in a dwelling

house, tent, or vessel, dishonestly receiving stolen property,

common intention---Appreciation of evidence---Recovery of

handkerchief and stolen jewellery---Not supported by credible

evidence---Accused were charged for committing rape and murder

of the minor daughter of the complainant---During the visit of

Investigating Officer at the place of occurrence, the complainant

handed over a white handkerchief that reportedly contained human

hair, saliva stains and sweat marks---However, that alleged evidence

was not discovered or recovered by the Investigating Officer

through any independent or professional means---Instead, the

complainant claimed that he had personally collected the

handkerchief with the help of one IK , who was later examined as

court witness---Handkerchief was formally taken into possession

vide a recovery memo. and both the complainant and IK signed that

memo---Investigating Officer also recorded statement of IK under

S.161, Cr.P.C.---Said IK was placed in the column of the witnesses but

he did not appear before the Court, therefore, he was summoned by the Court and he while appearing as court witness did not support

the recovery process rather he denied having any knowledge about

the incident altogether---Said contradiction raised serious doubt

about the authenticity of the recovery of the handkerchief, which

allegedly contained key forensic evidence and the recovery of the

stolen artificial jewellery---Since the recovery was not supported by

any independent witness or credible evidence and appeared to rely

solely on the complainant's version, contradicted by court witness, it

casted a shadow of suspicion over the prosecution's version---

Recovery process, therefore, seemed to be artificial and possibly

fabricated---When the evidence lacked independent corroboration

and raised significant doubts, it could not be deemed reliable or safe

to form the basis for a conviction or to support the prosecution's

case---Appeal against conviction was allowed, in circumstances.

(d) Penal Code (XLV of 1860)---

----Ss. 302(b), 376, 380, 411 & 34---Qatl-i-amd, rape, theft in a dwelling

house, tent, or vessel, dishonestly receiving stolen property,

common intention---Appreciation of evidence---Benefit of doubt---

Presence of Court witness at the venue doubtful---Chance witness,

evidence of---Scope---Accused were charged for committing rape and

murder of the minor daughter of the complainant---Court witness

appeared before the Court as a chance witness who, according to

prosecution's version, happened to be present at the complainant's

house at about 12:30 p.m. on the day of the alleged incident---Said

witness claimed to observe one door of the house to be locked and

the other slightly opened---Said witness allegedly saw appellants

leaving the house through the back side of the courtyard---However,

said witness in his statement contradicted the prosecution's version

entirely---Court witness clearly denied any knowledge of the

incident and stated that he had no connection whatsoever with the

case---Such sharp contradiction between what the prosecution

claimed, what court witness witnessed and what he said under oath

significantly undermined the reliability of the prosecution's story---

Fact that a key witness disowned the very events he was purported

to have witnessed, created serious doubt about the truthfulness of

the prosecution's version---Such a material discrepancy damaged the

case's credibility, reflecting either a false implication or

manipulation of facts---Therefore, testimony of Court Witness,

instead of supporting the prosecution, raised major concerns about

the authenticity of their narrative and rendered their case highly

doubtful---Appeal against conviction was allowed, in circumstances.

(e) Penal Code (XLV of 1860)... Ss. 302(b), 376, 380, 411 & 34---Qatl-i-amd, rape, theft in a dwelling

house, tent, or vessel, dishonestly receiving stolen property,

common intention---Appreciation of evidence---Postmortem report

of the deceased doubtful---Accused were charged for committing

rape and murder of the minor daughter of the complainant---

According to the post mortem report, the cause of death was

concluded to be by strangulation---However, while examining the

physical condition of the deceased's body by Woman Medical

Officer, certain typical signs usually seen in such cases such as

bruising around the neck, protrusion of the tongue, petechial

hemorrhages (tiny red spots in the eyes or face) were not found and

absence of such signs raised doubts about the accuracy of the

medical conclusion---Therefore, the mismatch between the medical

opinion and the actual condition of the body created serious

uncertainty regarding the real cause of death---Said discrepancy

must be carefully considered, as it weakened the reliability of the

prosecution's claim that the death resulted from strangulation---

Appeal against conviction allowed, in circumstances.

(f ) Criminal trial---

----Circumstantial evidence---Scope---To convict an accused on

circumstantial evidence, every link in the chain must be firmly

established and all the circumstances must unerringly point to the

guilt of the accused, excluding any reasonable possibility of

innocence.

Fayyaz Ahmed v. State 2017 SCMR 2026 rel.

Rao Muhammad Sarfraz and Sardar Ali for Appellant.

Ms. Habiba Khalid, State Counsel.

Muhammad Akbar, S.I, P.S. Secretariat, Islamabad for the State.

Jan Muhammad Khan for the Complainant.

Date of hearing: 22nd April, 2025.

JUDGMENT

INAAM AMEEN MINHAS, J.---Through this single judgment, we

intend to decide the above mentioned jail appeal and the jail appeals,

criminal appeals and murder reference mentioned in Annexure-A as

the same have arisen out of same case FIR No.223, dated 23.09.2020,

under sections 376, 411, 302, 380, 34, P.P.C, registered at Police Station

Secretariat, Islamabad.

2. Through the jail appeals and the criminal appeals, the appellants

have assailed the judgment dated 16.04.2022 ( Impugned Judgment ), passed by the learned Additional Sessions Judge West-Islamabad/GBV

Court, East/West ( Trial Court ), whereby the appellants were convicted

and sentenced under section 302-B, P.P.C to death and to pay

compensation of Rs.100,000/- each in terms of section 544-A, Cr.P.C to

the legal heirs of the deceased and in case of default in payment of the

compensation, they shall further undergo 06 months Simple

Imprisonment ( SI ), under section 376, P.P.C to death and to pay

compensation of Rs.100,000/- each in terms of section 544-A, Cr.P.C to

the legal heirs of the deceased and in case of default in payment of the

compensation they shall further undergo 06 months SI, under section

380, P.P.C to 1 year Rigorous Imprisonment ( RI ) and shall also pay fine

of Rs.10,000/- each and in case of default in payment of the fine, they

shall suffer 01 month SI and under section 411, P.P.C to 1 year RI. The

appellants were also given benefit of section 382-B, Cr.P.C and all the

sentences of imprisonment were to run concurrently. The learned

Trial Court after convicting and sentenced the appellants filed a

reference under section 374, Cr.P.C for confirmation of death sentence.

3. The transient facts of the case are that on 23.09.2020 the

complainant Muhammad Yousaf PW-12 made a verbal statement

before the police by alleging that he is resident of Chajar Barri Imam

and works as a labourer/mason, whereas his wife Batool Bibi works as

a maid in different houses at Melody. At about 7:30 a.m, he and his

wife left the house for work leaving alone the children behind. On

getting free at about 3:30 p.m, he and his wife went to the house of his

mother at Mohallah New Noori Bagh. At about 4:00 p.m, he and his

wife left for their home, on the way he met his friend Aziz Rasool

Bukhsh and both of them went to a local hotel for a cup of tea,

whereas his wife went to her home. At about 4:30 p.m his neighbourer

namely Zameer Ahmed called him through cell phone and asked him

to immediately come to home as some unknown persons have killed

his daughter, who is hanging with iron rod through her Dupatta. He

rushed to his mother s house, from where he along with his younger

brother Wafadar Ali reached to his house on a motorcycle, his younger

daughter Maria aged about seven years told him that she along with

other brothers and sisters went to Barri Imam Darbar to take Langer

and when she returned, her younger brother Muhammad Ali aged

about 1 years was present outside the room and the door of the room

was latched. When she opened the latched she saw her elder sister

Aqsa Bibi aged about 11 years was hanging with iron rod through a

Dupatta, she rushed to the house of neighbourer Zameer. In the

meantime, his wife also came to the house, took down Aqsa and when

he and his brother reached the house, saw his daughter dead lying on

the cot. 4. Initially, the FIR was registered under section 302, P.P.C. However,

on 28.09.2020 and 13.10.2020, vide Diary Nos. 06 and 14, offences

under sections 380, 411 and 34, P.P.C were added and report under

section 173, Cr.P.C was submitted before the learned Trial Court on

01.12.2020. Later on the I.O collected evidence of rape with the

deceased, therefore, on 02.07.2021 another report under Section 173,

Cr.P.C while adding section 376, P.P.C was submitted.

5. The learned Trial Court framed the charge, recorded evidence and

after hearing the arguments convicted and sentenced the appellants

through the Impugned Judgment, hence, this appeal.

6. The learned counsel for the appellants contended that the

prosecution has failed to prove its case beyond any shadow of doubt;

that the learned Trial Court has not appreciated the evidence in its

true perspective; that the prosecution evidence is not credible as there

are contradictions in the statements of the P.Ws; that there is no direct

evidence against the appellants to link them with the offence; that

whole of the prosecution case is based on hearsay evidence; that one

Irfan Karim said to have seen the appellants while coming out of the

house of the complainant was produced as a Court Witness (CW-1),

who disassociated himself from the case weakening the prosecution s

case; that the medical evidence is not align with the circumstantial

evidence and that the prosecution with malicious intent produced a

Parna allegedly containing the hairs of appellant Muhammad

Khursheed to falsely link him with the crime by suggesting his

presence at the scene as such the appellants are entitled to be

acquitted.

7. The learned counsel for the complainant assisted by the learned

State Counsel contended that the appellants with common intention

committed cold blooded murder of eleven years old girl by using a

Dupatta as a weapon. They while referring the circumstantial and

medical evidence, particularly the DNA analysis submitted that the

same corroborates the narrative of the crime and connect the

appellants with the commission of the offence; that the P.Ws in their

statements supported the recovery process; that no prior enmity was

alleged by the appellants to falsely implicate them in this case; that the

prosecution has successfully proved its case beyond a reasonable

doubt and that the appellants have rightly been convicted and

sentenced by the learned Trial Court, through the Impugned Judgment,

therefore, conviction and sentenced awarded to them may be upheld.

8. We have heard the arguments of the learned counsel for the

parties and perused the record with their able assistance. 9. Perusal of the record reveals that the complainant Muhammad

Yousaf PW-12 in his complaint Exh.PW alleged that on reaching his

home her younger daughter Maria aged about 07 years told him that

she along with other brothers and sisters went to Barri Imam for

Langer and when she returned, her younger brother Muhammad Ali

aged about 1 year was sitting outside and door of the room was locked

and when she opened the door, she found that her elder sister Aqsa

Bibi aged about 11 years was hanging with iron rod through a Dupatta.

The first person, who discovered this tragic scene was younger sister

of the deceased merely seven years old at that time. Upon seeing her

sister hanging, the young girl immediately ran to inform a

neighbourer, Zameer Ahmed. In turn, Zameer Ahmed promptly called

the complainant PW-12 and told him over the phone about the death

of his daughter. Shortly thereafter, the deceased s mother also arrived

at the scene, she saw her daughter hanging with the iron rod and she

herself brought down the dead body. However, astonishingly none of

these three key persons, Maria the younger sister of the deceased,

Zameer Ahmed the neighbourer and the mother was produced before

the Court as a witness to testify regarding what they had seen. The

prosecution did not put forward the explanation for what reasons it

failed to produce these crucial witnesses before the Court, thus it

withheld the necessary evidence that could have directly established

the circumstances, in which the deceased was found. Due to this

omission, there is no direct, firsthand evidence available on the record

to conclusively prove that the deceased was indeed found hanging

with the iron rod by a Dupatta as claimed. Therefore, the failure to

produce these primary witnesses creates serious doubts in the

prosecution case. Moreover, adverse inference is drawn under Article

129(g) of Qanun-e-Shahadat Order, 1984 that had such witnesses been

produced by the prosecution during the trial, they would not have

supported the prosecution s case. Reliance is placed upon Muhammad

Nasir Butt and 2 others v. The State and others, (2025 SCMR 662).

10. During cross-examination, Muhammad Athar Khan, Inspector,

I.O PW-13, admitted that the place of occurrence was a small house,

measuring approximately 2 / 3 Marlas and complainant Muhammad

Yousaf PW-12 during cross-examination also confirmed the same and

further admitted that all the family members including one sister,

three brothers, mother, wife and four children are residing in the

small house. Although the complainant explained his absence and that

of his wife on the day of the occurrence, there is no explanation on the

part of the prosecution or any other evidence to establish that the

other family members, who were also living in the same house, were

absent at the time of the occurrence. In a so small and crowded house,

it is highly unlikely that such a tragic incident could take place without the knowledge or presence of other family members. The prosecution

s failure to address this critical point seriously undermines the

credibility of its case, making the entire prosecution story suspicious.

11. On 28.09.2020, Muhammad Athar Khan Inspector I.O PW-13

received a written complaint Exh.PAH from the complainant PW-12,

alleging the theft of certain jewellery items. Acting on this

information, he visited the place of occurrence. During this visit, the

complainant handed over a white handkerchief that reportedly

contained human hair, saliva stains and sweat marks. However, this

alleged evidence was not discovered or recovered by the I.O PW-13

through any independent or professional means. Instead, the

complainant PW-12 claimed that he had personally collected the

handkerchief with the help of one Irfan Karim, who was later

examined as Court Witness (CW-1). The handkerchief was formally

taken into possession vide a recovery memo. Exh.PAJ and both the

complainant PW-12 and Irfan Karim signed this memo. The I.O PW-13

also recorded statement of Irfan Karim under Section 161, Cr.P.C. The

said Irfan Karim was placed in the column of the PWs but he did not

appear before the Court, therefore, he was summoned by the Court

and he while appearing as CW-1 did not support the recovery process

rather he denied having any knowledge about the incident altogether.

This contradiction raises serious doubt about the authenticity of the

recovery of the handkerchief, which allegedly contained key forensic

evidence and the recovery of the stolen artificial jewellery. Since the

recovery is not supported by any independent witness or credible

evidence and appears to rely solely on the complainant s version,

contradicted by CW-1, it casts a shadow of suspicion over the

prosecution s version. The recovery process, therefore, seems to be

artificial and possibly fabricated. When the evidence lacks

independent corroboration and raises significant doubts, it cannot be

deemed reliable or safe to form the basis for a conviction or to support

the prosecution s case.

12. CW-1 Irfan Karim appeared before the Court as a chance witness

who, according to prosecution s version, happened to be present at the

complainant s house at about 12:30 p.m. on the day of the alleged

incident. It was claimed that Irfan Karim observed one door of the

house to be locked and the other slightly opened. He allegedly saw

appellants Muhammad Khurshid, Syed Hammad Naqvi and Shah

Sawar leaving the house through the back side of the courtyard.

However, Irfan Karim in his statement as CW-1 contradicted the

prosecution s version entirely. He clearly denied any knowledge of the

incident and stated that he had no connection whatsoever with the

case. This sharp contradiction between what the prosecution claims,

what CW-1 Irfan Karim witnessed and what he said under oath significantly undermines the reliability of the prosecution s story. The

fact that a key witness disowns the very events, he was purported to

have witnessed, creates serious doubt about the truthfulness of the

prosecution s version. Such a material discrepancy damages the case s

credibility, reflecting either a false implication or manipulation of

facts. Therefore, testimony of CW-1, instead of supporting the

prosecution, raises major concerns about the authenticity of their

narrative and renders their case highly doubtful.

13. According to the post mortem report Exh.PT, the cause of death

was concluded to be by strangulation. However, while examining the

physical condition of the deceased s body by Dr. Shazia Nazir PW-7

certain typical signs usually seen in such cases such as bruising

around the neck, protrusion of the tongue, petechial hemorrhages

(tiny red spots in the eyes or face) were not found and absence of such

signs raises doubts about the accuracy of the medical conclusion.

Therefore, the mismatch between the medical opinion and the actual

condition of the body creates serious uncertainty regarding the real

cause of death. This discrepancy must be carefully considered, as it

weakens the reliability of the prosecution s claim that the death was

resulted from strangulation.

14. It is an admitted fact that the incident in the present case was

not witnessed by anyone, meaning thereby that there is no direct

evidence against the appellants. As a result, the entire case presented

by the prosecution is based purely on circumstantial evidence.

However, the prosecution has failed to establish its case beyond a

reasonable doubt as the circumstances presented do not form a

complete, consistent and unbroken chain that connect the appellants

with commission of the offence. On the contrary, the events appear

disjointed and the evidence is riddled with contradictions and gaps.

Because of these serious shortcomings, the case does not meet the

strict legal standard required for a conviction based solely on

circumstantial evidence. Reliance is placed upon Fayyaz Ahmed v.

State, (2017 SCMR 2026), wherein it was held that to convict an accused

on circumstantial evidence, every link in the chain must be firmly

established and all the circumstances must unerringly point to the

guilt of the accused, excluding any reasonable possibility of innocence.

15. In view of the foregoing discussion, the captioned jail appeal

well as the jail appeals and the criminal appeals mentioned in

Annexure-A are allowed. The Impugned Judgment is set aside and the

appellants Syed Hammad Naqvi, Shah Sawar and Muhammad

Khursheed are acquitted from case FIR No.223, dated 23.09.2020,

under sections 376, 411, 302, 380, 34, P.P.C, registered at Police Station

Secretariat Islamabad. They be released forthwith, if not required in any other case. The murder reference mentioned in Annexure-A is

answered in negative.

Annexure-A

1. Murder Rference No.

05 of 2022

The State v. Syed Hammad Naqvi and

others

2. Jail Appeal No. 174 of

2022

Muhammad Khurshid v. The State

3. Jail Appeal No. 175 of

2022

Shah Sawar v. The State

4. Criminal Appeal No.

178 of 2022

Muhammad Khursheed and others v.

The State and another

5. Criminal Appeal No.

204 of 2022

Shah Sawar v. The State and another

JK/220/Isl. Appeals allowed.