2026 P Cr. L J 802

 2026 P Cr. L J 802

[Peshawar]

Before Ijaz Anwar and Sahibzada Asadullah, JJ

AJMAL HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Appeal No. 1182-P of 2021, decided on 12th September, 2024.

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

----Ss. 302(b) & 324---Criminal Procedure Code (V of 1898), S.417(2)---

Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of

evidence---Appeal against acquittal---Presence of complainant at the

spot not proved---Accused was charged that he made firing upon

complainant party, due to which maternal uncle of complainant

was hit and died, whereas complainant escaped unhurt---As per the

prosecution version, the occurrence had been witnessed by the

complainant as well as an eye-witness, the shop keeper---According

to the narration of complainant, the respondent-accused fired at

him as well as his uncle which hit his uncle, however, he escaped

unhurt---Site plan which was prepared at the instance and

pointation of complainant showed the accused at point No. 2, the

complainant at point No.3 and the deceased at point-1 whereas the

shopkeeper at point No.4---Distance between point 2 and point 1

was given as 4 paces, whereas the distance between point 2 and

point-3 was one pace---Point-3 which was given to complainant

came in the line of firing of the respondent accused, however, his

escaping unhurt and not receiving a single scratch was not

appealable to a prudent mind particularly, as per his own

admission in cross-examination that there was no barrier/obstacle

between him and accused at the time of firing---Appeal against

acquittal was dismissed, in circumstances.

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

----Ss. 302(b) & 324---Criminal Procedure Code (V of 1898), S.417(2)---

Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of

evidence---Appeal against acquittal---Mode and manners of the

occurrence doubtful---Accused was charged that he made firing

upon complainant party, due to which maternal uncle of

complainant was hit and died, whereas complainant escaped

unhurt---As per the contents of the murasila/FIR, the occurrence

took place at 11:30 hours and in his Court statement, the

complainant stated that the deceased was alive till the time of reaching the hospital---Scriber of the Murasila stated that he

reached the hospital at 12:10 pm and by that time the deceased was

already dead---Postmortem examination report would show that the

deceased then alive was brought in gasping and shocked who was

given emergency treatment and later expired at 12:25 hours---

Medical Officer had given the time of postmortem examination as

12:45 hours and further stated that he examined the injured and

treated him within one hour of hisarrival and then conducted

postmortem examination within one hour of his death---Medical

Officer further stated that the deceased died before less than one

hour of the post mortem examination---Prosecution witness, who

identified the dead body of the deceased in his Court statement,

stated that he did not accompany the dead body of the deceased to

the hospital rather reached later to the hospital at 11:00/11:15 am

and by that time, the deceased had already expired and that he

signed the identification documents of the deceased at 11:30 hours--

-Escaping unhurt of the complainant and the different timings of

death of the deceased in the statement of the scribe of the report,

the Medical Officer and the identifier of the dead body casted a

serious doubt regarding the mode and manner in which the

occurrence took place as well as over the presence of the

complainant on the spot at the time of occurrence---Appeal against

acquittal was dismissed, in circumstances.

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

----Ss. 302(b) & 324---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---

Criminal Procedure Code (V of 1898), S.417(2)---Qatl-i-amd, attempt

to commit qatl-i-amd---Appreciation of evidence---Appeal against

acquittal---Withholding material witness from giving evidence---

Adverse presumption---Accused was charged that he made firing

upon complainant party, due to which maternal uncle of

complainant was hit and died, whereas complainant escaped

unhurt---According to the contents of the Murasila/FIR, the

occurrence took place in the shop of shop keeper, however, the site

plan would show that the said person had not been shown present

rather, son of that shop keeper had been shown present in the said

shop at the time of occurrence who had been given point-4 and the

presence of that witness had also repeatedly been admitted by the

complainant in his Court statement---Said person was a star witness

of the prosecution but astonishingly, he had not been examined

during trial---Thus from the non-production of the said witness, an

adverse inference could be drawn had the said witness been

produced, he would have not favored the prosecution case as laid

down under Art.129 (g) of the Qanun-e- Shahadat, 1984---Appeal

against acquittal was dismissed, in circumstances. Muhammad Rafique and others v. The State and others 2010 SCMR

385 rel.

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

----Ss. 302(b) & 324---Qanun-e-Shahadat (10 of 1984), Art. 46---Criminal

Procedure Code (V of 1898), S.417(2)---Qatl-i-amd, attempt to commit

qatl-i-amd---Appreciation of evidence---Appeal against acquittal---

Dying declaration doubtful---Accused was charged that he made

firing upon complainant party, due to which maternal uncle of

complainant was hit and died, whereas complainant escaped unhurt--

-Prosecution relied upon the dying declaration in the form of

telephonic call allegedly made by the deceased then injured from

mobile phone No. 0310-9818898 to the official landline number of the

police station which was entered in DD No. 12 dated 20.4.20217---

However, as per record, neither the mobile phone of the deceased

was taken into possession nor any data was collected from the

concerned quarter whether the said SIM number (0310-9818898) was

registered in the name of the deceased or otherwise, nor such fact

had been stated before the police at the time of report by the

complainant nor during his Court statement that the deceased while

in injured condition made a phone call to the police station charging

the respondentaccused for the commission of the offence---Though

CDR data had been brought on record which showed the location of

the said mobile number at place S at 11:30 hours and the duration of

call as 01 minute 12 seconds, however, there was nothing available

on record to show that the deceased after being hit was able to talk

for such length of time---Time of call shown therein was 11:30 hours,

however, as per the statement of identifier, the deceased had already

expired at 11:00/11:15 am---Thus that piece of evidence could not be

safely relied upon---Said fact could also be seen from another angle;

if it was presumed that the complainant was present along with the

deceased, there was no occasion for the deceased to have made a call

and such call was required to be made by the complainant himself, it

thus clearly suggested that complainant was not the eye witness---

Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302(b) & 324---Criminal Procedure Code (V of 1898), S.417(2)---

Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of

evidence---Appeal against acquittal---Motive not proved---Accused

was charged that he made firing upon complainant party, due to

which maternal uncle of complainant was hit and died, whereas

complainant escaped unhurt---In respect of the motive, though,

during investigation, the Investigating Officer had brought on

record, a copy of deed pertaining to compromise between father of respondent accused and one MM , however, no evidence was

available on record to show how the said deed was concerned with

the deceased and that how the said event formed a motive for the

accused to commit the murder of the deceased---Thus the motive

too had not been proved by the prosecution---Appeal against

acquittal was dismissed, in circumstances.

Muhammad Akram alias Akrai v. The State 2019 SCMR 610 rel.

(f ) Criminal trial---

----Abscondence---Scope---Abscondence alone is not a proof of guilt

of an accused person.

Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR

1373 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Single doubt created in the

prosecution case is sufficient to be resolved in favour of the

accused.

Mst. Hajira Bibi alias Seema and others v. Abdul Qaseem and

another 2023 SCMR 870 rel.

Danial Khan Chamkani and Nouman Khan Kundi for Appellant.

Amir Zeb, A.A.G for the State.

Malik Imad Azam for Accused Respondent (on video link).

Date of hearing: 12th September, 2024.

JUDGMENT

IJAZ ANWAR, J.---This appeal has been filed by the Ajmal Khan

appellant (complainant) under section 417 (2) Cr.P.C against the

judgement dated 08.12.2021, passed by the learned Judge Model

Criminal Trial Court/Additional Sessions Judge-II, Kohat, whereby

respondent accused Mushahid Hussain alias Mushahid Ali was

acquitted of the charges levelled against him in case FIR No. 99 dated

20.04.20217 under sections 302/324 P.P.C, Police Station Usterzai, Kohat.

2. In his report made to the police in KDA hospital Kohat,

complainant stated that he on 20.4.2017, had gone to shop of one

Muhammad Azeem for purchase of stationery items where his

maternal uncle Ishtiaq Ali was already present and in the meanwhile,

respondent accused Mushahid Hussain alias Mushahid All came duly

armed with Kalashnikov and made firing at them as a result whereof,

his maternal uncle Ishtiaq Ali was hit whereas he (complainant) and the shopkeeper escaped unhurt. That the injured was taken to the

hospital, however, he succumbed to his injuries. Motive for the

occurrence was stated to be dispute over women folk. The report of

the complainant was reduced into murasila on the basis whereof the

instant FIR was registered.

3. Initially, challan under section 512 Cr.P.C was submitted against

the respondent accused and on completion of proceedings under the

said section, he was declared proclaimed offender. On his arrest,

respondent accused faced trial before the learned trial Court which

resulted into his acquittal vide judgement dated 08.12.2021. Feeling

aggrieved of his acquittal, complainant of the case has filed the instant

appeal.

4. Arguments of learned counsel for the parties heard and record

perused.

5. Though the respondent accused has directly and singularly been

charged for the commission of the offence, however, this court has to

see whether the prosecution has succeeded in establishing the guilt of

the respondent accused or otherwise and for this purpose, in view of

the grounds taken in the appeal as well as the arguments advanced at

the Bar, the prosecution evidence needs to be revisited cursorily. The

prosecution in support of its case has examined as many as 10

witnesses. PW-1 is Yousaf Khan S.I/OII who conducted supplementary

investigation against the respondent accused after his arrest, PW-2 is

Aftab Ahmad LHC Naib Court who is marginal witness to recovery

memo. regarding recovery of blood from the place of deceased, three

empties of 7.62 bore and blood stained last worn clothes of deceased,

PW-3 is Farid Khan SHO who, on the report of complainant inked the

same in shape of murasila, PW-4 is Habib Ullah Khan S.I who arrested

accused on 26.2.2019, PW-5 is Akhtar Abbas who is identifier of dead

body of deceased, PW-6 is Shahid Mehmood who entered the

information/call received to him on landline number 0922-580218 of

PS from mobile No. 0310-9818898, in DD No. 12 dated 20.04.2017, PW-7

is Dr. Syed Mustafa who on 20.4.2017 at 12:45 hours, conducted

autopsy on the dead body of deceased Ishtiaq Ali, PW-8 is Ajmal

Hussain who is the complainant of the case, PW-9 is Muhammad

Akbar S.1 Elite Force who is investigation officer of the case, PW-10 is

Islam Noor ASI who incorporated the contents of Murasila into FIR

Ex.PA.

6. As per the prosecution version, the occurrence has been

witnessed by the complainant as well as one Muhammad Azeem, the

shop keeper (later on the name of shopkeeper was mentioned as Zain

Shahab, the son of Muhammad Azeem). The complainant/eye-witness

of the occurrence has been examined as PW-8. According to his own narration, the respondent accused fired at him as well as his uncle

which hit his uncle, however, he escaped unhurt. The site plan which

was prepared at the instance and pointation of complainant shows the

accused at point No. 2, the complainant at point No.3 and the deceased

at point-1 whereas the shopkeeper (Zain Shahab) at point No.4. The

distance between point 2 and point 1 is given as 4 paces, whereas the

distance between point 2 and point-3 is one pace. Point-3 which is

given to complainant comes in the line of firing of the respondent

accused, however, his escaping unhurt not receiving a single scratch is

not appealable to a prudent mind particularly, as per his own

admission in cross-examination that there was no barrier/obstacle

between him and accused at the time of firing. As per the contents of

the murasila/FIR, the occurrence took place at 11:30 hours and in his

court statement, the complainant stated that the deceased was alive till

the time of reaching the hospital. PW-3 Farid Khan SHO who had

scribed the Murasila stated that he reached the KDA at 12:10 P.M and

by that time the deceased was already dead. The P.M examination

report would show that the deceased then alive was brought in

gasping and shock who was given emergency treatment and later

expired at 12:25 hours. The doctor has been examined as PW-7 who

has given the time of P.M examination as 12:45 hours and further

stated that he examined the injured and treated him within one hour

of his arrival and then conducted P.M examination within one hour of

his death. He further stated that the deceased died before less than one

hour of the post mortem examination. PW-5 namely Akhtar Abbas who

identified the dead body of the deceased in his court statement stated

that he did not accompany the dead body of the deceased to the

hospital rather reached later to the hospital at 11:00/11:15 A.M and by

that time, the deceased had already expired and that he signed the

identification documents of the deceased at 11:30 hours. Escaping

unhurt of the complainant and the different timings of death of the

deceased in the statement of the scribe of the report, the doctor and

the identifier of the dead body casts a serious doubt regarding the

mode and manner in which the occurrence took place as well as over

the presence of the complainant on the spot at the time of occurrence.

7. According to the contents of the Murasila/FIR, the occurrence took

place is the shop of Muhammad Azeem, however, the site plan would

show that the said person has not been shown present rather, Zain

Shahab son of Muhammad Azeem has been shown present in the said

shop at the time of occurrence who has been given point-4 and the

presence of this witness has also repeatedly been admitted by the

complainant in his court statement. This person was a star witness of

the prosecution but astonishingly, he has not been examined during

trial. Thus from the non-production of the said witness, an adverse inference can be drawn had the said witness been produced, he would

have not favored the prosecution case as laid down under Article 129

(g) of the Qanun-e-Shahadat Order, 1984, In the case titled

"Muhammad Rafique and others v. the State and others" (2010 SCMR

385), it was observed by the august Supreme Court of Pakistan that:

"It is well-settled that if any party withholds the best piece of

evidence then it can fairly be presumed that the party had some

sinister motive behind it. The presumption under Article 129(g)

of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir

Ali would have been examined, his evidence would have been

unfavourable to the prosecution."

8. The other piece of evidence relied upon by the prosecution is the

dying declaration in the form of telephonic call allegedly made by the

deceased then injured from mobile phone No. 0310-9818898 to the

official landline number of the police station which was entered in

DD No. 12 dated 20.4.20217. However, as per record, neither the

mobile phone of the deceased was taken into possession nor any data

was collected from the concerned quarter whether the said SIM

number (0310-9818898) was registered in the name of the deceased or

otherwise nor such fact has been stated before the police at the time

of report by the complainant nor during his court statement that the

deceased while in injured condition made a phone call to the police

station charging the respondent accused for the commission of the

offence. Though CDR data has been brought on record in shape of

Ex.PW 9/4 which shows the location of the above mobile number at

Sherkot at 11:30 hours and the duration of call as 01 minute 12

seconds, however, there is nothing available on record to show that

the deceased after being hit was able to talk for such length of time.

The time of call shown therein is at 11:30 hours, however, as per the

statement of PW5, the deceased had already expired at 11:00/11:15

A.M. Thus this piece of evidence cannot be safely relied upon. This

can also be seen from another angle, if it is presumed that the

complainant was present along with the deceased, there was no

occasion for the deceased to have made a call and such call was

required to be made by the complainant himself, it thus clearly

suggests that complainant was not the eye-witness.

9. In respect of the motive, though, during investigation, the I.O has

brought on record a copy of deed pertaining to compromise between

father of respondent accused and one Muhammad Muhtashim,

however, no evidence is available on record to show how the said deed

is concerned with the deceased and that how the said event formed a

motive for the accused to commit the murder of the deceased. Thus the

motive too has not been proved by the prosecution. In case titled "Muhammad Akram Alias Akrai v. The State" reported as (2019 SCMR

610), the august Supreme Court of Pakistan held as under:

"the motive set out by the prosecution remained far from being

proved. It is well settled that when prosecution alleges

something against an accused person and then fails to prove the

same, the premium of such failure must go to an accused person.

In this case as well, prosecution's failure to prove the motive set

out by it certainly benefits the appellant."

10. So far as the abscondence of respondent accused is concerned, it

is by now well settled that abscondence alone is not a proof of guilt of

an accused person. The august Supreme Court of Pakistan in case titled

"Rasool Muhammad v. Asal Muhammad and 3 others" reported in 1995

SCMR 1373 held as under:

"Disappearance of a person named as, a murderer /culprit after the

occurrence, is but natural, whether named rightly or wrongly.

Abscondence per se is not a proof of the guilt of an accused

person. It may, however, create suspicions against him but

suspicions after all are suspicions."

11. The respondent accused has remained in police custody but

nothing incriminating has been recovered from his possession or on

his pointation neither has he confessed his guilt before any competent

Court of law. In his statement recorded under section 342 Cr.P.C,

respondent accused denied the commission of offence and stated to

have falsely been implicated in the case.

12. The crux of the above discussion is that the prosecution failed to

prove the commission of offence against respondent accused beyond

shadow of doubt. It is by now well settled that a single doubt created

in the prosecution case is sufficient to be resolved in favour of the

accused. The august Supreme Court of Pakistan in case titled "Mst.

Hajira Bibi alias Seema and others v. Abdul Qaseem and another"

(2023 SCMR 870), held as under:?

"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 accused. This Court in the case of Mst.

Asia Bibi v. The State (PLD 2019 SC 64) while relying on the

earlier judgments of this Court has categorically held that "if a

single circumstance creates reasonable doubt in a prudent mind

about the apprehension of guilt of an accused, then he/she shall

be entitled to such benefit not as a matter of grace and

concession, but as of right. Reference in this regard may be

made to the cases of Tariq Pervaiz v. The State (1995 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view

was reiterated in Abdul Jabbar v. State (2019 SCMR 129).

15. The judgement of the learned trial Court acquitting the

respondent accused by extending him benefit of doubt is based on

proper appreciation of evidence and material available on record. The

learned counsel for appellant could not point out any illegality or

material irregularity committed by the trial Court which could

warrant interference by this Court. Resultantly, the instant appeal

stands dismissed.

JK/167/P Appeal dismissed.