Mst. Shahnaza Bibi Vs The state etc.

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JUDGMENT SHEET

IN TIIE PESHAWARIIIGII COURT,

BANNU BENCH.

(Iudicial DePartment) Cr.A. No. 66-8n025

Mst. Shehnaza Bibi & 04 others

Vs:

The state etc

Date of hearing: r0.09.2025.

For t: Mr. Farooq Khan Sokari, advocate'

For : Nemo (In motion).

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1.At a trial held by the learned Additional Sessions Judge- VL Lakki Marwat in Case No'27/JC of 2023, respondent/accused namely Suffan Khan was acquitted from the charges leveled against him, by the leamed ibid court vide impugned judgment dated 21.02.2025, in a criminal case vide F.I.R No.l593 dated 26.12.2021 ulss 30213241148/149 P'P'C, Police Station, Saddar, Dishict, Bannu. Similarly, the leamed Additional Sessions Judge-VI, Bannu also acquitted the respondents Maqsood Jan, Muhammad Ayub and Ihtesham (in connected Cr.A.No.67-Bl2025) in Session case No.l2lSC of

2.Feeling aggrieved, the appellants Mst' Shehnaza Bibi and 05 others have questioned the legalrty of the impugred judgments of acquittal of Sufiyan respondent through instant (Mst' appeal, whereas, by Criminal Appeal No'67-B/2025 ShehnazaBibi&05othersv.TheStateetc),againstacquittal of Maqsood Jan, Muhammad Ayub and Ihtesham in the same' Since both the matters pertain of one and the same F'I'R, so' we

intend to decide the same through this single judgment'

3.The case of the as emerging from the F.I.R', is that complainant Zakirullah Khan (injured) on26ll2l202l at 2l:00 hours, in the emergency ward of Civil Hospital, Bannu, accompanied by his injured brother Asif Khan, uncle Faisal, cousln Muhammad Salman, and the dead bodies of his uncle Naqibullah alias Waqifullah, first cousin Zeeshan son of Naqibullah, and cousin Akram Khan son of Moinullah' On the night of occulrence, at about 8:30 p.m, the complainant along with his aforesaid relatives was sitting in front of his shop under electric light, when accused Maqsud, Inam and Salam alias Salami, followed by four/ five unknown assailants, duly armed, reached there and opened firing with intention to kill. As a result, members of the complainant party received firearm injuries, while Naqibullah, Zeeshan and Akram Khan succumbed to their wounds in the hospital. The motive, as set

forth, was a prior restraint put by the complainant upon accused Salam from resorting to aerial firing in front of his house'

4.Similarly, the cross version envisaged in the second portion of the F.I.R Mst. Mehnaz (complainant) charged Asif, Faisal and Arif for the murder of her brother Mudassir Khan by firing at him.

5.During the course of investigation the injured Asif Khan in his statement recorded u/s 164 Cr.P.C also charged accused Ayub, Ihtisham and Sufiyan for the commission of crime' After completion of investigation complete challan was submitted to the learned trial court for trial, and for proceedings u/s 512 Cr.P.C against the absconding accused' Charge against the respondents was framed and in support of its allegations, however, respondent Sufiyan being under age, his challan was separated on 27.03.2023 under Juvenile Justice System Act, 2018, and after framing ofcharge against thejuvenile accused, the prosecution produced as many as 14 witnesses and examined all the accused uls 342 Cr.P.C. After hearing arguments, the learned trial Court vide impugrred judgments dated 21.02.2025, acquitted the respondentVaccused namely Sufiyan in the instant criminal appeal and acquitted respondenUaccused namely, Maqsood Juan, Muhammad Ayub, Ihtisham, Inam and Salam in the connected Cr.A.No.67-

Bl2O25. Hence, the appellants have assailed their acquittal by way of filing separate aPPeals.

6.We have heard leamed counsel for the appellants and perused the record with his able assistance.

7.It is an undisputed fact that on 26'12'2021, a tragic occurence transpired resulting in the loss of four precious lives, while four other individuals sustained firearm injuries' The time and place of the incident stand admitted; however, the pivotal question before this Court is to determine whether the occrurence unfolded in the manner projected by the prosecution and whether the injuries suffered by the victims are attibutable to the accused presently facing tial or otherwise' E. It further emerges from the record tltat on the same day, while at the hospital, Mst. Mehnaza lodged a report regarding the murder of her brother Mudassir, nominating Arif, Asif, and Faisal as accused. The prosecution story reveals that the complainant Zakir Khan (PW-4), Asif Khan (PW-5), Suleman (PW-6), and Shah Faisal (PW-7) deliberately omitted the fact of Mudassir's murder in the initial report. Such conduct on the part of the complainant and other PWs indicates a conscious attempt to withhold vital and relevant information from the Court in the very first documents forming the foundation of the case. This concealment also finds corroboration from the

investigating officer's inaction, as despite the accused party's application under Section 22-A(6)(3) Cr.P.C. seeking collection of CCTV footage from a nearby shop, the offrcer failed to comply with the Court's direction' The said footage, later produced by the accused party during trial, was placed on record and forwarded to the F.S.L, which confirmed that the recording was genuine and free from any editing'

9.A video recording, when duly authenticated and presented in accordance with law, possesses substantial evidentiary worth, as it has the capacity to visually depict the occlurence, the individuals involved, and the sequence of events, thereby offering a more complete picfure than oral testimony alone. In the instant matter, during cross- examination, the complainant (PW-4) candidly admitted that a CCTV camera was installed in the shop of one Shah Niaz, a grocer, and Asif (PW-5) also conceded that the said camera clearly captured the complainant party. Despite this admitted presence, the investigating officer failed to procure tle recording at the relevant stage; neverlheless, the same was subsequently placed on record on the application ofthe accused party. The essential issue for judicial determination thus remains whether the recording is genuine, free from manipulation or editing, and whether its quality in any manner diminishes its probative value.

10.The video recording was duly transmitted to the Forensic Science Laboratory (F'S'L.) for analysis, which confirmed that the footage was genuine and free from any manipulation or editing. This finding gains further weight from the admitted presence of the CCTV camera at the spot, acknowledged both by the complainant (PW-4) and by Asif (PW-5), the latter candidly stating that the complainant party is fully visible therein. As regards the quality of the footage, it is undeniable that the recording was made at night, resulting in a blurred vision which renders precise identification of the individuals diffrcult. Nevertheless, the footage clearly depict that the occurence did not unfold in the mode and manner projected by the prosecution. Reliance is placed on the case "Akhtar Nqwaz v. The State" [2025 YLR 1178], the relevant Para is as under:- "8. --------However, while twisting the story the star witness of the prosecution i.e. Abdul Karim (PW-01) stated in his examination'in- chief that he along with complainant (then injured now dead), Aamir Shehzad (PW-04)' Muhammad Javed (PW-05), Muhammad Nqwaz (PW-02) and Ghulam Mustafa (PIy-03) and other people of the vicinity vere present at the crime spot when the appellant and his dead co- accused (Muhammad Yousafl reached there at 09:45 hours and asked them to stop lhe work of paving the street, wherealter the latter started altercation with them, followed by Jiring. Meaning thereby that the occufience had not taken place in the mode and manner as narrated by the complainant in his rcport. It appears that tirst the appellant and his dead co-accused on reaching at the crime spot tried to stop them from paving the slreet, whereafter perhaps an altercation might have takcn place, which resulted into firing upon each other as on one hand the complainant had lodged the instant FIR

while, on the other hand, the appellant had also lodged a cross case bearing FIR No. 37j of even date.------."

11.The video recording was played in open Court in the presence of both parties and their leamed counsel' Notably, no objection or denial was raised by the complainant's side regarding its authenticity or that it did not pertain to the incident in question. The only conte.lrtion raised by the leamed counsel for the complainant was that, owing to the poor quality of the footage, no specific identification of the accused is possible' This plea, however, is without substance, as the recording clearly portrays a sequence ofevents starkly different from the complainant's version. According to the statement of the complainant (PW-4), the accused party allegedly arrived at the spot armed with weapons and indiscriminately fired upon the complainant side, resulting in multiple casualties. However, the footage discloses an entirely different scenario: it shows an altercation amongst persons present, where certain individuals appear attempting to calm the situation by restraining those armed with pistols, suddenly, an aerial fire was made, followed by the emergence of a person carrying a Kalashnikov, who, during a scuffle, is confronted and shot at close range with a pistol, as he collapses to the ground, the said individual, while falling, fires shots which prove fatal for several persons engaged in the melee. The defence stance, that Mudassir arrived

at the scene with a Kalashnikov, that a quarrel ensued, and that during the struggle he was shot by Naqibullah, whereafter, his falling his fire caused the casualties, finds support from the footage. The Court, therefore, upon evaluation of the video recording, reached the conclusion that the incident did not occur in the manner as alleged by the prosecution and that the complainant side wanted to conceal the true facts from the Court. Reliance is placed on the case "Muhammud Daraz slias Muhammad (Jmer v. Mst. Dutdana & others" [2025 YLR (Peshawar) 12841, the relevant Para of the judgment is:- "25. Another imPortant aspect of the case is that on the same date, at 16:30 hours, the accused Noor Ahmad Shah (since dead) had also lodged a report regarding the iniuries he allegedly sustained in the incident. This report was initially reduced into the shape of Daily Diary No.08, dated 04.10.2012' which subsequently led to the registration of FIR No.427, dated 08.10.2012, under sections 324/34 P.P.C, at the same police station. His MLC reveals that the nature of hts injuries was firearm. The eye-witness also admitted it correct that the accused Noor Ahmad Shah was iniured and that it was he who charged the complainant party for the injuries he sustained in the incident. If we takz into consideration the contents of the captioned FIR No.427, the MLC, and the admission of the eye-witness, even for a limited purpose, in juxtaposition with lhe afore' noted factual background of the case, it can be safely concluded that the complainant party of this case concealed the real facts, and this, in fact, was a case of open guntight between the parties. Notably, the accused Noor Ahmad Shah also concealed in his report the fatal wounds sustained by Qaiser Adnan and Muhammad Yaseen. Therefore, it has been established that both the parties attibuted the role of assault to the adversarial party while concealing the real facts and attempting to cover up their own role in causing injuries to members of the rival party. It has also been established that the case indeed

was of cross version. However, the question fundamental to the fate of the case as to which party was the aggressor and which was aggressed upon remained unanswered, as the factum of sustaining the tirearm injuries by both sides was concealed. The effect of concealing the real facts pertaining to the injuries sustained by the adversarial party has, on numerous occasions, been considered in favour of the accused. The latest being the case of Niaz v. State (2024 PCT.LJ 1473 Quetta), can well be referred to in this case."

12.It further merits consideration that the accused presently facing trial, namely Sufiyan, Muhammad Ayub, and Ihtisham, were not named in the initial report, but were subsequently nominated by Asif (PW-5/injured) in his statement recorded under Section 164 Cr.P.C. Significantly, this statement is entirely silent as to how Asif came to know that the previously unknown culprits were the above-named accused. In his cross- examination, Asif candidly admitted that he had been informed of their names by Suleman (PW-6). He also conceded that although he knew these accused before, their names were not known to him at the relevant time. Contrarily, Suleman (PW-6), when cross-examined, did not state that he had conveyed the names of these accused to Asif (Pw-5); rather, he maintained that he disclosed the names of only three accused to the police while recording his statement under section 16l cr.p.c. The record further reflects that these accused were implicated on 01.01 .2022, five days after the occurrence, suggesting that their nomination was the result of deliberation and consultation

within the complainant parly. It is also pertinent that both Asif (PW-5) and Suleman (PW-6) were available at the hospital when the matter was first reported, yet did not disclose the names of the present accused to the police at that stage' Moreover, no identification parade was conducted to establish their identity, and though they were arrested and interrogated, no recovery of any weapon of offence was effected from them' Thus, not even a shred ofreliable evidence exists on record to establish their presence at the crime scene'

13.It is a settled principle of law that the foremost duty of the prosecution is to establish, beyond reasonable doubt, the presence ofthe accused at the place ofoccurrence. In the instant matler, the prosecution has failed to discharge this obligation. It is undisputed that PWs-4 to 7 sustained injuries during the incident, which sufficiently proves their own presence at the scene; however, their credibility stands compromised when they withheld the true facts of tle case. According to the complainant, accused Maqsood, Inam, and Salam, accompanied by four or five unknown percons while armed with weapons, opened indiscriminate fire upon them. Yet, neither the initial report nor their examination-in-chief contains any assertion that the accused approached from two different directions. This assertion surfaced only during cross-examination, amounting to dishonesty on his part, so that to bring in line his testimony with

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the site-plan. Reliance is placed on the case "Muhamsmd Nasir Butt and 02 others v. The State and others" 12025 SCMR 661, wherein it was observed that:- '6. In their statements recorded at the trial, the complainant Zahid Amjad (PW-3), Muhammad Hamid Amjad (PW-4) and injured Muhammad Majid Amjad (PW-10) have made dishonest improvements for assigning speci/ic role to each accused,which creates serious doubt about the veracity of their testimony and it is not safe to place reliance on their statements. "

14.Similarly, in the case of "Muhammad Jahangir v. The State" 12024 SCMR t74zl, the relevant portion of the judgment ts

"|4----This court has held in number of cases that where a witness makes dishonest improvements in his statement then it loses the signi/icance in the eyes of lawl. In Muhammad Mansha case,2 it has been ruled as follows:

Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by a this Court that whenever witness made dtshonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case tn line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesse.r, "

15.The record further reveals that the investigating officer prepared the site-plan at his own instance, from which empties of different weapons were recovered from separate locations.

PW-5 Asif, on 31.12.2021, five days after the occurtence, pointed out certain places allegedly connected with t}te accused.

Such delayed pointation, clearly the result of deliberation and consultation, robs the authenticity of site-plan, particularly when it was later verified by the complainant on 10.02.2022.

Moreover, in the initial report, the complainant and PWs did not speciff the type of weapon attributed to each accused;

instead, tlre vague term "Asleha Atisheen" was used. During cross-examination, PWs-5 and 6 attempted to justifr this omission by stating that they had mentioned specific weaporul but the scribe chose to record otherwise, to which they raised no objection. This explanation is nothing but an afterthought and constitutes a further improvement upon their earlier statements. In light ofthe video recording already relied upon by this Court, which depicts an account inconsistent with the prosecution's version, it becomes evident that the complainant party concealed material facts to minimise their own role, particularly regarding the death of Mudassir. In such circumstances, tle ocular testimony stands tainted with doubt, lacks , and cannot safely be made the basis for conviction.

16.It is well settled that the object of the F.I.R. is merely to set the law in motion, while the duty thereafter squarely lies upon the investigating agency to collect all available evidence,

without fear or favour, so as to bring before the Court the true picture ofthe occurrence. In the instant case, the agency failed to adhere to this mandate and igrrored vital evidence available at the spot' The Justice of Peace, through order dated 12.03.2022, specifically directed the local police to place on record all evidence relating to the matter, material obtained through modem devices, subject to verification of authenticity from the F.S'L. Despite such directions, the investigating offtcer neglected to procure the CCTV footage installed at the scene. This deliberate omission not only casts serious doubt upon the fairness of the investigation but also reflects concealment of the real facts of the incident.

17.The impugred judgments of the leamed trial court were read carefully where learned trial court were fully justified to pass the impugrred judgments of acquittal as there are obvious and material contradictions in the statements of the star witress of the prosecution, which leads this Court nowhere, but to hold that the prosecution has miserably failed in bringing home guilt against the respondents/accused.

18.As parameters provided for appeal against acquittal are totally different from that of conviction, asi once an accused is acquitted of the charges by the Court of competent jurisdiction then ofdouble innocence is credited to his account

and to upset the findings of the trial court extra ordinary circumstances are required.

19.For what has been discussed above, this Court hold that the appellants remained unsuccessful to invite the attention of this Court to set-aside the impugrred acquittal orders, as the impugned judgments being well reasoned is based on proper appreciation of evidence and we see no pervercrty and illegality in the impugned judgments of the leamed trial court and feel no hesitation to refuse interference that too when accused have attained double presumption of innocence, resultantly, the instant criminal appeal alongwith the connecled Criminal Appeal No.67-Bl2025 (Mst. Shehnaza Bibi & 05 others v.

The State etc) are hereby dismissedinliminie, Announced Dt:10.09.2025 t lmrunullah.PS

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JUDGE

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JUDGE

(D,B) HoDrblc Mr. Jurtlcc Muhammad Tariq Afridi & Hon'blc Mr, Justice Abdul Fsyrz