2026 P Cr. L J 495

 2026 P Cr. L J 495

[Peshawar (Mignora Bench)]

Before Muhammad Naeem Anwar and Dr. Khurshid Iqbal, JJ

ZAKIR KHAN---Appellant

Versus

WAHID-UR-REHMAN and others---Respondents

Criminal Appeal No. 187-M and Criminal Revision No. 43-M of 2021,

decided on 11th January, 2023.

(a) Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII

of 2010)---

----S. 16(1)(a)---Powers and functions of Children Protection Court---

Special measures for recording evidence of minor---Scope--- Special

measures the law provided were; screening witness from accused;

evidence by live link; evidence given in private; removal of wigs and

gowns; video recorded evidence in chief, Cross-examination or re-

examination; examination of witness through intermediary aids to

communication---Purpose of the law is to help disadvantaged

witnesses, such as, children under the age of 18, and those suffering

with mental disorder or otherwise had significant impairment of

intelligence and social functioning.

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

----Ss. 364-A & 511---Khyber Pakhtunkhwa Child Protection and

Welfare Act (XIII of 2010), S. 53---Kidnapping or abducting a minor,

attempted rape, sexual abuse---Appreciation of evidence---

Testimonies of eye-witnesses doubtful---Infirmities in investigation--

-Accused was charged for abducting minor daughter of complainant

for sexual abuse---Ocular account of the occurrence comprised of

the deposition of eye-witness and the complainant---Complainant

alleged that the appellant tried to abduct the victim for sexual

assault---Eye-witness deposed that while he was going to purchase

some grocery items from a shop in village, he got attracted to the

noise; saw that the appellant was abducting the victim on his

motorcycle; that appellant was chased by said witness (the father

and grandfather of the victim and other residents of the village)

who took hold of him along with the motorcycle---Cross-examination

of complainant divulged that when he came out, he had seen that

the motorcycle of the appellant was not in start condition and the

victim was sitting on the motorcycle and at that time, no other

person was there---Cross-examination of eye-witness showed that

when he reached to the spot, he had seen the victim sitting on the motorcycle and the appellant was not sitting there but was trying to

run away---Deposition further showed that when eye-witness

reached the spot, he had seen that the appellant was sitting on the

motorcycle and was trying to run away---Victim was sitting on the

front part of the motorcycle---Appellant was not holding victim and

she was weeping---Thus, it was doubtful as in which mode and

manner both the witnesses witnessed the occurrence---

Circumstances showed that the appellant could easily run away

even while successfully abducting the victim while sitting on the

motorcycle---Eye-witness in one breath deposed that when he

reached, the appellant was not sitting on the motorcycle and was

trying to decamp---In the next breath, eye-witness stated that when

he reached, the appellant was sitting on the motorcycle and was

trying to decamp---Then, if the victim was sitting on the motorcycle

and weeping and was not in clutches of the appellant, she surely

must have fallen down if the appellant was trying to run away on

the motorcycle---Site plan did not depict the house of the eye-

witness, thus, it was doubtful as to whether he was a resident of the

same locality and how he suddenly got attracted to the spot---

Prosecution contended that there were so many other residents of

the village who successfully overpowered the appellant and took

him to the police station along with the motorcycle, but no other

witnesses were examined as witnesses of the occurrence---Eye-

witness remained silent except the statement of complainant---

Moreover, the Investigating Officer did not record the statement of

the victim---Investigating Officer did not verify the site plan from

the victim---Investigating Officer did not confirm whether the victim

was capable to record her statement---Investigating Officer did not

record statements of the owners of the nearby fields depicted in the

site plan---Appeal against conviction was allowed, in circumstances.

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

----Ss. 364-A & 511--- Khyber Pakhtunkhwa Child Protection and

Welfare Act (XIII of 2010), S. 53---Criminal Procedure Code (V of

1898), S. 342--- Kidnapping or abducting a minor, attempted rape,

sexual abuse---Appreciation of evidence---Specific plea taken by

accused in his statement---Scope---Accused was charged for

abducting minor daughter of complainant for sexual abuse---After

having been examined under S.342, Cr.P.C, the appellant availed

opportunity of recording his statement on oath under S.340(2),

Cr.P.C.---In his statement on oath, while denying the charge, accused

deposed that on the eventful day, he was in a Bazar in connection

with preparing a photo of his own that was required to be annexed

with his application for employment in the Rescue 1122 department-

--Accused stated that there was a CCTV camera in front of the shop.... Accused further deposed that he was also purchasing kheer

(pudding) for his daughter from a milk shop, for which purpose he

entered in the shop and when he came out, found his motorcycle

missing---While he was standing there, the complainant came there

and started an altercation with him, as a result of which, he was

taken to the police station---Accused complained that the CCTV

footage was not obtained by the Investigating Officer despite his

repeated requests and rather he was brutally beaten as a result of

which he became ill---In such respect accused also produced copies

of his medical treatment comprising of 25 pages---Statement further

showed that when he came to know that his motorcycle was missing,

he made a cellular call from his SIM to his home but the Call Data

Record (CDR) was not obtained despite his repeated requests---

Accused admitted that legally he could have more than one SIMS of

his mobile phone---Accused also deposed that he had been

implicated in the case due to his political affiliations---Appeal

against conviction was allowed, in circumstances. (d) Criminal trial---

----Benefit of doubt---Principle---Even a single reasonable doubt

would be sufficient to record acquittal.

Khalid Mehmood alias Khaloo v. The State 2022 SCMR 1148; Najaf Ali

Shah v. The State 2021 SCMR 736 and The State through P.G. Sindh and

others v. Ahmed Omar Sheikh and others 2021 SCMR 873 rel.

Hafiz Ashfaq Ahmad and Rehman Ali for Appellant/convict.

Alam Khan Adenzai, Asstt: A.G for the State.

Attaullah for Respondent/Complainant.

Date of hearing: 11th January, 2023.

JUDGMENT

DR. KHURSHID IQBAL, J.--- Through this single judgment, we

intend to decide the instant appeal Cr.A. No. 187-M/2021 filed by the

appellant/convict against his conviction and sentences awarded to him

in a case FIR No.227 dated 16.09.2019 registered under sections 364-

A/511, P.P.C read with section 53 of the Child Protection and Welfare

Act, 2020 (C.P.A), by the learned trial Judge vide impugned judgment

dated 30.06.2021 as well as a connected Cr.R. No. 43-M/2021, filed by

the respondent Wahid-ur-Rehman against the same judgment of the

trial Court for the enhancement of sentences awarded to the

appellant/convict.

2. Necessary facts of the case are that the complainant, Wahid-ur-

Rehman (PW-2), reported the matter to the local police in Police Station Chakdara that on 16.09.2019, he, along with his father and

other family members, was present in his house. At about 10:30 hours,

on hearing noise outside his house, he came out and saw a man who

was forcibly setting his minor daughter aged about 4/5 years on a

motorcycle, while she was weeping. When he shouted, the man fled

away from the spot and left the minor girl along with the motorcycle.

The complainant and his father chased him and caught hold of him

with the help of co-villagers. On checking his CNIC, he was identified

Zakir Khan son of Said Raziq, a resident of Ouch Sharqi, Koz Palow

(CNIC # 15302-2190807-5), now appellant before us. The occurrence

besides him, was statedly witnessed by Amir Zaman son of Abdul

Mateen Khan and Hidayatullah son of Muhammad Nabi. He charged

the appellant for abducting his minor daughter, namely, Mst. Khalor

Bibi, for sexual abuse, on which, the aforesaid FIR (Ex:PA) was lodged.

3. On completion of investigation, challan was submitted against the

appellant Zakria Khan before the learned trial Court, who was

supplied copies from the relevant record under section 265-C, Cr.P.C.

Charge was farmed against him, to which he pleaded not guilty and

claimed trial.

4. The prosecution examined as many as eleven (11) PWs and

thereafter, statement of the appellant/convict was recorded under

section 342, Cr.P.C, wherein he denied all the allegations levelled

against him by the prosecution and professed innocence. He also

recorded his statement on oath under section 340(2), Cr.P.C. However,

he did not opt for producing evidence in defence.

5. After hearing arguments of the learned A.P.P, for the State, and

learned counsel for the parties, the learned trial Judge vide the

impugned judgment dated 30.06.2019, convicted the appellant Zakria

Khan and sentenced him as under:

i. Under section 364-A read with section 511, P.P.C, to undergo

rigorous imprisonment for 10 years and also imposed a fine

Rs.100,000/- (rupees one lac);

ii. Under section. 53, C.P.A, to undergo ten years rigorous

imprisonment and imposed fine of Rs.100,000/- (rupees one lac).

However, benefit of section 382-B, Cr.P.C., was extended to the

appellant/convict.

6. Being aggrieved, the appellant preferred the instant appeal Cr.A.

No.187-M/2019 for his acquittal in the case while the

respondent/complainant filed a revision petition Cr.R No.43-M/2019 for

enhancement of sentences awarded to the appellant. 7. We have heard arguments of learned counsel for the

appellants/accused, learned counsel for the complainant as well as the

learned Additional Advocate General, for the State and perused the

record.

8. The crucial aspect of the case in hand is that the minor girl,

namely, Mst. Khalor Bibi, aged about 4/5 years, the victim of the crime

was not examined in the manner as required. She was produced for

evidence at the trial on 18.02.2021. The trial Court recorded an

observation that she was found not capable of giving evidence.

Probably the learned trial Court found her too young to record her

testimony. She was the star witness of the prosecution. In spite of the

fact that on observation she was not found capable as a witness, we

believe that the learned trial Court should have gone further before

simply abandoning the crucial exercise as part of the trial. Subject to

the conditions laid down in Articles 3 and 17 of the Qanun-e-Shahadat

Order, 1984 (Q.S.O), there is no bar on the competency of a child to be

a witness irrespective of his/her age. A close reading of the above

referred provisions evinces that a witness, including most particularly,

a child in the personal context must pass what is known as the

"rationality test", which means the capacity and intelligence of a

witness to understand the question put to him and the ability to

rationally respond to question. In the case of Raja Khurram Ali Khan

and 2 others v. Tayyaba Bibi and another, reported as PLD 2020 SC 146

(Supreme Court of Pakistan), our Supreme Court has observed that as

compared to our judicial approach, Courts in other jurisdictions are

more interactive with child witnesses during recording of their entire

evidence. The Court has referred to a 1993 case, in which, the

Canadian Supreme Court designed three pronged criteria of the

capacity to observe (including interpretation), recollect and

communicate. The relevant para of the judgment may be reproduced

as under:

"46. In other common law jurisdiction, the Courts are more inter-

active with the child witnesses during the recording of their

entire evidence. Justice Mc.Lachlin, speaking for the Canadian

Supreme Court in the case of R. v. Marquard [1993] 4 S.C.R. 223,

has explained with precision the competency of the child

witness, by stipulating the following criteria for testing the same

in terms:

...(1) the capacity to observe (including interpretation); (2) the

capacity to recollect; and (3) the capacity to communicate.... The

judge must satisfy him or herself that the witness possesses

these capacities. Is the witness capable of observing what was

happening? Is he or she capable of remembering what he or she

observes? Can he or she communicate what he or she remembers? The goal is not to ensure that the evidence is

credible, but only to assure that it meets the minimum threshold

of being receivable....... Generally speaking, the best gauge of

capacity is the witness's performance at the time of trial..... [T]he

test outlines the basic abilities that individuals need to possess if

they are to testify. The threshold is not a high one. What is

required is the basic ability to perceive, remember and

communicate. [once] This established, deficiencies of perception,

recollection of the events at issue may be dealt with as matters

going to weight of the evidence."

9. Our Supreme Court urged the Courts to follow the above referred

approach and strongly advised for compliance of the directions given

in paras 49 and 50, which are reproduced as below:

"49. In other jurisdictions, we note that great care is taken to ensure

that such child witnesses are able to depose their testimony at

ease. By taking measures in the court room to lessen their stress

and anxiety of court-room appearances in such a tender age.

Such measures include child witness aid in testifying, screens in

court rooms, closed courtrooms and counsellor aid before and

after recording of evidence, which needs to be adopted and

practiced in our jurisdiction in cases wherein a child victim is to

appear as a witness. In this regard, we expect the respective

governments to take appropriate legislative and administrative

measures for ensuring the much needed protection and

facilitation of child witnesses.

50. As for the presiding trial Court judges, they should take

appropriate steps during the court proceedings to ensure that

the child witnesses depose their testimony with cease, and that

too, in a stress-free environment. In cases where the child

witness is unable to depose in the court room, and his evidence

is 'necessary to find the truth, and it has a ring of 'circumstantial

trustworthiness', then courts, as practiced in other common law

jurisdictions, may consider in appropriate cases, allowing out-of-

court evidence, as an exception to the 'hearsay rule'. Wigmore, a

notable American scholar on the law of evidence, in his book

Wigmore on Evidence, Volume 5 (Chadboum rev. 1974),

identified two considerations, which may serve as an exception

to the 'hearsay rule': 'a circumstantial probability of

trustworthiness, and a necessity for the evidence."

10. In the case in hand, the learned trial judge did not take a pain to

ensure the victim speak to the Court. We believe and expect the trial

Court judges to follow these guidelines in such like cases. 11. We may here add a perspective from the UK's Youth Justice and

Criminal Evidence Act, 1999 (text of the law at

https://www.legislation.gov.uk/ukpga/1999/23/content, last accessed on

12/03/2023). The law provides that all persons irrespective of age are

competent to give evidence. However, the witness must be able to

understand the question put to him as a witness and he/she give

answers to questions which can be understood. It means a witness

must be able to understand the question and the answer given must be

capable of being understood (Section 53).

12. The law further provides that in criminal proceedings, a child

under the age of 18 at the time of hearing is eligible for assistance on

the ground of age [S. 16 (1) (a)]. The time of hearing means the stage in

the trial when the court has to make a determination for the purpose

of special measures direction under section 19(2).

13. Once the court has determined that a witness is eligible for

assistance [a child by virtue of section 16(1)(a)], it must then determine

that any one or more special measures would be likely to improve the

quality of evidence given by the witness.

14. The special measures the law provides are:

Screening witness from accused

Evidence by live link

Evidence given in private

Removal of wigs and gowns

Video recorded evidence in chief, cross-examination or re-

examination

Examination of witness through intermediary Aids to

communication (sections 23-30).

15. The purpose of the law is to help disadvantaged witnesses, such

as, children under the age of 18, and those suffering with mental

disorder or otherwise has significant impairment of intelligence and

social functioning. The law lays down a host of special measures which

a court may employ to improve the quality of such vulnerable

witnesses. Often a child abuse case hinges on the evidence of just one

witness, as the victim of a crime. The special measures per the law

helps make such witness to give better evidence and more confidently

in a milieu of juvenile justice. Perhaps, it may be more helpful to

follow the observations of the above referred observations of the

Supreme Court as another best practice example. 16. Coming to the remaining ocular account, the same comprises of

the deposition of Amir Zaman Khan (PW1) and Wahid-ur-Rehman, the

complainant/father of the victim (PW2), respectively. The deposition of

PW2/complainant would reveal that on the day of occurrence

(16.09.2019 at 10:30 am), while he was present in his house along with

his father, he heard noise. When came out of his house, he saw that

the appellant had forcibly made his daughter, the victim, sit on the

motorcycle and she was shouting. When he asked him, the appellant

left the motorcycle and tried to run away from the scene. His father

and other residents also came out and took hold of him after having

been chased. He alleged that the appellant was abducting the victim

for sexual assault. PW1 rather furnished a shorter deposition in his

examination-in-chief, which shows that on the day of the occurrence,

while he was going to purchase some grocery items from a shop in

village Adam Dherai, he got attracted on the noise, saw that the

appellant was abducting the victim on his motorcycle. The appellant

was chased by him, the father and grandfather of the victim and other

residents of the village and taken hold of him along with the

motorcycle. The cross-examination of PW2 divulges that when he

came out, he saw that the motorcycle of the appellant was not in

started condition and the victim was sitting on the motorcycle and at

that time, no other person was there. The cross-examination of PW1

shows that when he reached to the spot, he saw the victim sitting on

the motorcycle and the appellant not sitting there but was trying to

run away. The deposition further shows that when he reached the

spot, he saw that the appellant was sitting on the motorcycle and was

trying to run away. That the victim was sitting on the front part of the

motorcycle. The appellant was not holding her and she was weeping. It

is, thus, doubtful as in which mode and manner both the PWs

witnessed the occurrence. The circumstances show that the appellant

could easily run away even while successfully abducting the victim

while sitting on the motorcycle. PW1, in one breath deposed that when

he reached, the appellant was not sitting on the motorcycle and was

trying to decamp. In the next breath, he stated that when he reached,

the appellant was sitting on the motorcycle and was trying to decamp.

Then, if the victim was sitting on the motorcycle and weeping and not

in clutches of the appellant, she was surely to fell down if the

appellant was trying to run away on the motorcycle.

17. The site plan of the occurrence depicts that the house of the

complainant party to the west and a vacant house of one Muhammad

Iqbal, to the east of the public thoroughfare, which turns towards

west. The aforesaid public path of village Adam Dherai at points 3A, Al

and 4A in the south turns towards west. Towards the south of the

public path, the open fields of the village are shown. The site plan does not depict the house of the PW1. It is doubtful as to whether he is a

resident of the same locality and how he suddenly got attracted to the

spot. The prosecution contended that there were so many other

residents of the village who successfully overpowered the appellant

and took him to the Police Station along with the motorcycle, but no

other witnesses were examined as witnesses of the occurrence.

18. Regarding the allegation of abduction for the purpose of sexual

assault, PW1 remained silent except the statement of PW2

(complainant), there is no other evidence of the prosecution. Moreover,

the Investigating Officer (PW10) did not record the statement of the

victim. He did not verify the site plan from the victim. The I.O did not

confirm whether the victim was capable to record her statement. He did

not record statements of the owners of the nearby fields depicted in the

site plan.

19. We would now advert to the previous involvement of the

appellant and a family suit his wife filed against him due to his

implication in the present case and her application that she wants

divorce from him because of his habit of abducting children. MHC

Abbas Khan (PW6), after having recorded the report of the complainant

in the shape of the FIR, inquired from the Police Station of Ouch about

the Appellant. He was informed that another FIR No.340 dated

17.06.2018 under sections 364-A, P.P.C read with 53 CPA in that Police

Station was registered against him, in which, he was stated to have been

released on bail.

20. After having been examined under section 342, Cr.P.C, the

appellant availed opportunity of recording his statement on oath

under section 340(2) of the Cr.P.C. In his statement on oath, while

denying the charge, he deposed that on the eventful day, he was in

Chakdara Bazar in connection with preparing a photo of his own that

was required to be annexed with his application for employment in

the rescue 1122. He stated that there was a CCTV camera in front of the

shop. He further deposed that he was also purchasing Kheer (pudding)

for his daughter from a milk shop, for which purpose he entered in the

shop and when he came out, found his motorcycle missing. While he

was standing there, the complainant came there and started an

altercation with him, at a result of which, he was taken to the Police

Station. He complained that the CCTV photage was not obtained by the

I.O despite his repeated requests and rather he was brutally beaten as

a result of which he became ill. In this respect he also produced copies

of his medical treatment comprising of 25 pages. The statement

further shows that when he came to know that his motorcycle was

missing, he made a cellular call from his SIM No.0344-9773642 to his

home but the CDR was not obtained despite his repeated requests. He admitted that legally he can have more than one SIMS of his mobile

phone. He also deposed that he has been implicated in the case due to

his political affiliations. While under cross-examination, he stated that

he holds a master degree in Physics, working as a clerk in the Deputy

Commissioner office and that he is under the legal bar not to take part

in politics. He admitted having made no report regarding missing his

motorcycle. He stated that he does not know a village, Adam Dherai.

He stated that he was acquitted in the previous criminal case under

section 364-A, P.P.C. Regarding the family suit, he admitted that the

same was filed against him, but later on, his wife withdrew it. He

produced photocopy of the compromise deed dated 11.02.2020

Ex:PW/D1. The aforesaid document shows that his wife had withdrawn

the family suit and denied from having made any application that the

appellant was involved in abduction of children.

21. On the strength of above reappraisal of evidence, we have

reached to the conclusion that the prosecution has failed to bring

home the charge against the appellant beyond any shadow of doubt. At

the trial, the victim as not examined at all. While there could not be no

gainsaying the face the victim was observed as a witness, the Court did

not make a demonstrable endeavour to establish it. The I.O did not a

Medical Doctor about her exact age and her prudence and rationality

to stand as an efficient witness. Then, no independent witness was

brought forward by the prosecution despite the fact that a mob chased

the appellant. The efforts of the complainant party that the appellant's

wife sought dissolution of marriage due to his alleged involvement in

abduction of children, having disproved badly, suggest some mala fide.

It is a settled law that even a single reasonable doubt is sufficient to

record acquittal. In the case of Khalid Mehmood alias Khaloo v. The

State, reported as 2022 SCMR 1148, wherein it was held as infra:

"It is a settled law that single circumstance creating reasonable

doubt in a prudent mind about the guilt of accused makes him

entitled to its benefits, not as a matter of grace and concession

but as a matter of right. The conviction must be based on

unimpeachable, trustworthy and reliable evidence. Any doubt

arising in prosecution's case is to be resolved in favour of the

accused and burden of proof is always on prosecution to prove

its case beyond reasonable shadow of doubt. However, as

discussed above, in the present case the prosecution has failed to

prove its case beyond any reasonable shadow of doubt.

Similarly, in the case of Najaf Ali Shah v. The State (2021 SCMR 736),

the august Supreme Court has observed that:

"It is a well settled principle of law that for the accused to be

afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty

and if there is only one doubt, the benefit of the same must go to

the petitioner."

And the same principle was reiterated in the case, The State through

P.G. Sindh and others v. Ahmed Omar Sheikh and others, reported as

2021 SCMR 873.

"It is settled since centuries that benefit of doubt automatically goes

in favour of an accused. Even if a single circumstance creates

reasonable doubt in a prudent mind regarding guilt of an

accused then the accused shall be entitled to such benefit not as

a matter of grace and concession but as a matter of right and

such benefit must be extended to the accused person(s) by the

Courts without any reservation."

22. Resultantly, we allow the instant appeal Cr.A. No.187-M/2019 by

setting aside the impugned judgment dated 30.06.2021 of the learned

Additional Sessions Judge/Izafi Zilla Qazi/Judge Child Protection Court,

Dir Lower at Chakdara and acquit the appellant of the charges levelled

against him. He shall be released forthwith from the jail, if not

required in any other case. Whereas, the connected Cr.R. No. 43-

M/2019, filed by the respondent/complainant Wahid-ur-Rehman for

enhancement of convictions/sentences awarded to the appellant being

became infructuous, stands dismissed.

23. These are the reasons of our short order of the even date.

JK/143/P Appeal allowed.