State through A.G Khyber Pakhtunkhwa Vs Muhammad Aslam & 02 others

v FORM OF ORDER STIEET

Date of Order or other proceedings with signature ofJudge(s). order or

t8.3.2025 Cr.A.No.0GB/2021

Presenl:- Muhammad Asghar Khan Ahmadzai, Additional Advocate General for the State/appellant.

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State through

Advocate-General, Khyber Pakhtunkhwa, Peshawar, has assailed the judgment dated 22.9.2021, rendered by learned Additional Sessions Judge-I, Norttr 4 Waziristan at Bannu, whereby the accused/ respondents were acquitted in case FIR No.21 dated 15.5.2020, under Sections 302, 3ll, 201134 P'P'C read with section 20 0f the Prevention of Electronic Crimes Act,20l6 of Police Station Razmak, District North Waziristan.

2.Brief resume of facts of prosecution case, as disclosed in the FIR, is that on 1552020 at 18:10 hours, complainant Loye Dataz Khan S'H'O (PW-3) of Police Station Razmak, on receiving information about an incident, went to the crime village, where he was informed that two girls, one the daughter of Roktra Din and the other daughter of Radol Khan, both from South Waziristan were

murdered by unknown cousin on the pretext of v honour and their dead bodies were ffansported to South Waziristan, where they were buried. Motive for the offence was stated to be a viral social media video showing the two females kissing Umar Ayaz, resident of Bobali, Tori Khel, Garyum, North Waziristan. Initially, accused Umer Ayaz alongwith another unknown murderer were charged for the offence. On 18.5.2020, the complainant S.H.O arrested accused Umar Ayu, Radol Khan, Rokha Din and Fida Ullah, in the instant case, whereas accused Muhammad Aslam was arrested on 20.5.2020.

3.Investigation in the case was conducted by Muhammad Nawaz SI (PW-4). He proceeded to the spot where he prepared site plan Ex:. PB, through a search light. He recovered and took into possession blood stained earth from the places of both the deceased. He took into possession one spent bullet near the place of deceased and a piece of cloth having blood stains. He recorded statements of PWs u/s 16l, Cr.P.C. On 16.5.2020, he took into possession a USB, prepared by ASI, Farman Ali, containing viral video depicting obscene acts between involving the accused and the deceased. On 18.5.2020, he approached the Court of Sessions Judge, North Waziristan for exhumation of the dead bodies through an application

Ex:. PW 4ll. On the same day and date, he added sections of law under the Prevention of Electronic Crimes Act (PECA),2016 to F.I.R. On 19.5.2021,he produced accused Umer Ayaz, Fida Ullah, Radul and Rekha Din before the Illaqa Judicial Magistrate for recording their confessional statements. Only accused Umer Ayaz recorded his confessional statement, while the other accused refused to record their confessional statements. During physical custody, accused Muhammad Aslam confessed his guilt before the I.O and he recorded his statement u/s 16l Cr.P.C as well as in the CD cassette. On 16.7.2020, he produced accused Radul and Mir Palim before the Illaqa Judicial Magistrate expressing their unwillingness regarding exhumation proceedings' He sent the incriminating articles to the F.S.L' On 12.8.2020, the I.O took possession of a mobile set galaxy 17 from accused Fida Ullah, alleging that the accused Umer Ayaz used the device for recording the obscene video with the deceased ladies. He sent the USB to the F.S.L and received the F.S.L report along with photographs and placed the same on file' He also received F.S.L report regarding btood-stained earth, blood-stained piece of cloth and deform crime bullet of 9mm bore and placed the same on record' He sent the recovered mobite phone to Cyber Crime

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Reporting Center D.I.Khan and the report Ex. PW 4lll, consisting of eight pages in this respect was placed on file. He subsequently sent the said cell phone to FIA Peshawar and upon receiving the report, placed it on file. He also placed on file copy of F.I.R No.l I dated 02.02.2020, u/s 324134 P.P.C, which was allegedly the cause of dispute between accused Umer Ayazand accused Fida Ullah.

4.On 19.5.2020, statement of accused Umar Ayaz,Khan, under sections 164 read with Section 364, Cr.P.C was recorded, wherein he stated that prior to the occulrence he was accustomed to driving and selling his own vehicles, specifically Fiedler, Datson and Vitz cars. That 3 to 4 years prior, the deceased Saeeda Bibi and Jasima Bibi approached him near their house and expressed a desire to befriend him. Following ttrat initial meeting they became friends and would meet, wherever, he visited District Bannu or Miran Shah. A year ago, the afore-named girls met and requested him to meet them at a secluded place near their village' He then approached them and they asked him to get out from his blue Vitsz car. Upon their request, he got out from his vehicle and sat with them for gossip' During their conversation, he recorded a video of them using Fida Ullatr's cell phone. After that he left them and

headed back to his house. He informed his friend and v co-villager accused Fida Ullah about the video and warned him not to show it to anyone or share it wittl others as it could lead to humiliation and defamation.

He asked accused Fida Ullah to delet the video. The accused Umar Ayaz Khan stated that he did not charge the accused Fida Ullah for sharing the video on social media as it was possible that someone else might have shared the video with who the accused Fida Ullatr share it. He further stated that he was informed by his maternal cousin that the video had been uploaded to the internet and that after the video was made public, he consulted his family and decided to approach the family of the deceased and ask for the hands of the deceased girls in mariage. According to the accused Umar Ayaz Khan, before his family arrived at the deceased house-hold, they were informed that the two tadies had been murdered' He stated that both the deceased girls were willing to marry him and that he had not coerced them into malriage as evidenced by the video recording'

5.It is worth mentioning that on 25.g.2020,Mr. Zahid Ali Khan, Judicial Magistrate-I' South Waziristan at Tank, on the direction of Sessions Judge, South Waziristan, went to Larahmi Qabristan, situated near Spina Maila, South

Waziristan, for exhumation of dead bodies of v deceased Jasmina Bibi and Saeeda Bibi. According to said Judicial Magistrate, 10/15 elders of the Tribe along with mothers of both the deceased ladies and father of deceased Jasmina Bibi appeared before him and informed him that a Jirga had decided that they would not permit exhumation of the dead bodies it would humiliate and disrespect the corpuses of their females, which is against Islamic teachings and their customs. That the mothers of both the deceased ladies showed their inability to identify the graves by stating that according to their customs females are prohibited from visiting the graveyard. The learned Magistrate concluded that, since the police failed to produce and convince anyone from the local community to identiff the graves and deceased bodies during the proposed exhumation, the legal requirements for exhumation of the dead bodies had not been met, the procedure could not be carried out. The Judicial Magistrate submitted report alongwith statements to the Sessions Judge, South Waziristan at Tank for information.

6.On completion of the investigation, complete challan was put before the trial court, where upon the conrmencement of ffial, copies of the relevant documents were provided to the accused, in

compliance with Section 265-C, Cr.P.C. Charge was framed against the accused, to which they pleaded not guilty and claimed trial. In order to substantiate charge against the accused, the prosecution produced and examined as many as 05 witnesses. Following the conclusion of the prosecution's evidence, statements of accused under section 342, CI.P.C. were recorded wherein they professed innocence and false implication. However, they neither opted to be examined on oath in terms of Section 340(2), Cr'P'C' nor did they produce defence evidence. The trial Court, after hearing arguments, vide impugned judgment dated 22.9.2021, acquiued the accused/respondents, hence, the instant criminal appeal.

7.Arguments of learned counsel for

appeltant were heard in motion. Record gone through'

8.It is cardinat principte of criminal law and nafural justice that every person, accused of an offence, is to be considered innocent, unless and until proved guilty on the basis of legal and unimpeachable evidence. However, after facing full-fledged tial, if an accused of a crime is acquitted by the competent Courtoflaw,thenapresumptionofhisinnocence gets doubled and very strong and exceptional circumstances are required to overturn the conviction

judgment. At the same time, the rules and principle of appreciation of evidence in appeal against conviction is different to that of appeal against acquittal. In appeat against conviction the evidence has to be apprised and evaluated in a rigid and strict manner whereas in appeal against acquittal such sftingent method of appreciation of evidence cannot be carried out. In this respect guidance is derived from the case of 6Amin Khan Vs. b Gul and others" reported in @ wherein it was held

that:

"We have heard the learned counsel for the appellant qs well as the learned State counsel at length We have also gone through the impugned iudgment as also the relevant portions of the evidence on the record. We are in resPecful agreement with the view talcen by the High Court in the imPugned judgruent It is Amin Khan aPPellant (complainant) against whom the accused-respondents sought the revenge for having beaten their father and if he hqd been Present along with Gul Fraz (deceased) they would have /ired at him rather than the deceased and would not hme allowed him escaPed unhurt. We also respectfully agree with the view taken by the High Court that the medical evidence contradtcts the version given by the eye-witnesses' We feel that it is an un-witnessed occurrence and the accused-resPondents were named rnerely on susPicion. We do not find any flau, in aPPreciation of -1he piosicution evidence bY the HAh Court and as such do not consider it a case The

appeal is consequently dismissed".

9.It is well settled by now that while dealing with an appeal against acquittal, the appellate Court is to see as to what illegality the tial Court has commiffed in acquitting the accused and as to whether the judgment impugned is arbitrary, mechanical and perverse. The appellate Court is under its bounden duty to reappraise the evidence and after application of judicial mind, decide the fate of an appeal, so that miscariage of justice could be avoided. It is equally true that to upset the findings arived at by a trial Court, extraordinary care is required especially, in an appeal against acquittal. The apex Court in the case of 66Muhammad Riaz v. Khurram Shehzad and 1 another" reported as 29249-51, held that:

"In the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 1l), this Court laid out the most important and consistently followed principles with respect to the presumption of double innocence and stoted that (1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and insiead would give due weight and considerqtion to the lindings of Court acquitting the accused. This approach is stightly dffirent than that in an appeal against conviction when leave ,; granted onlY for the re- opproitr*ent of evidence which then ii'undertaken so as to see that benefit of every reasonable doubt should be ixtendid to the accused. This dffirence of aPProach is - mainlY cinditioned bY the fact that the carries w ith it the two well-

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accepted presumptions: one initial, that till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. It was further held that the Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to a conclusion dffirent from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 SC 554) this Court, while considering numerous pronouncements of the Supreme Court held that it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal iurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled".

10.It is evident from the record that in the present case, unfortunately two young girls had lost their lives, however, this alone would not be suffrcient to absolve the prosecution of its liability to prove its case beyond reasonable doubt. In the present case, the occulrence allegedly took place on 14.5 .2020 at 14:00 hours, whereas the matter was reported on 15'5'2020 at 18:10 hours. Undeniably, the occturence is unseen one and complainant Loye Daraz Khan, on receiving information about the murder of two

ladies, rushed to the crime village where it was told to him that they were murdered by their cousin, reportedly due to their objectionable video with accused Umer Ayu, which had gone viral on social media. According to the prosecution version, the motive behind the offence was allegedly the objectionable video featuring the two deceased women and the accused Umer Ayu. Although said mobile phone was taken into possession during investigation of the case which was sent to the F.S.L, however, there is no report on file to confirm that the said mobile phone belonged to the accused and the alleged video was recorded using that phone and more particularly that the video featured the accused and the two deceased women.

I l. So far as confessional statement of accused Umer Ayaa is concerned, suffice it to say that the statement of accused (Ex: PW 3/1) as recorded by Sher Hassan, Judicial Magistrate, wherein he acknowledged friendship with the deceased women, does not constitute a confessional statement, specially given that the accused has not been charged with the murder of

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the two women.

12.For the aforesaid reasons, we have come to an inevitable and unavoidable conclusion that the prosecution was unable to prove its case against the respondents/accused beyond any reasonable shadow of doubt and therefore, the learned trial Court was justified to extend the benefit of doubt to the respondent. The impugned judgment is based on sound reasoning, which is not open to any exception. Accordingly, this criminal appeal, being meritless, is dismissed in limine.

Announced.

Dt: /,8.03.2025.

JUDGE

JUDGE

Date of hearins & announcement of iudsment... ... ... ... ... I 8.03.2025 Date ofpreparation & signing ofiudgment... ... ... ....... 08.04. 202 5

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Hon'ble Mr. iiuhammad Tariq Afridi Hon'ble Mr, JusUce Abdul FaYaz