Kashif Zaman Vs The State and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

(Judicial DEPARTMENT)

Cr.A. No. 109-A/2021.

Kashif Zaman Vs The State and others.

JUDGMENT

For Appellant: Mr. Saad Abbasi, Advocate.

For State: Mr. Muhammad Shoaib, Assistant AG. For Accused: Mr. Azhar Zahoor Tanoli, Advocate.

Date of hearing: 24.09.2025

SADIQ ALI, J.- Through this single judgment, we intend to decide this appeal as well as connected criminal appeals bearing No. 110-A/2021 and 111-A/2021, as all these three appeals are the outcome of same FIR.

2.The appellant through these connected appeals has called in question the judgment dated 26.03.201215, rendered by the learned Judge Model Criminal Trial Court/Judge Juvenile Court, Haripur, whereby the respondents/accused Zohaib and Waleed were acquitted of the charges in case FIR No.371 dated 28.10.2018, under Section 302/34 PPC read with Section 15-AA KPK of Police Station Ghazi, District Haripur.

3.The prosecution story as disclosed in the FIR, is that on 28.10.2018 at 10:45 AM, complainant Fazal Rehman (brother of deceased Aksar Zaman) reported to police at RHC Kot Najibullah that his brother, owner-driver of Carry Van No. RIW-4270, was hired by Awal Khan, Haji Sultan Bahadar, and Malik Afsar to attend a funeral. While the complainant followed on motorbike, two persons on another motorcycle intercepted the van near Amgah Bridge. The person riding behind the driver of the motorcycle, identified as Waleed s/o Muhammad Saleem, fired two shots at the deceased, who later succumbed to injuries while being shifted to hospital. The incident was witnessed by the complainant and passengers. Motive was a dispute over land and money between the deceased and Muhammad Saleem, father of accused Waleed.

Subsequently, Zohaib was arrested, who confessed his guilt before Court by recording his confessional statement, as such was implicated through supplementary statement by the complainant.

Thus, the case was registered against Waleed as well as his unknown accomplice namely Zohaib.

4.On completion of the investigation, complete challan was submitted against the accused/respondent Waleed.

Since accused/respondent Zohaib was found to be juvenile, as such separate challan under Juvenile Justice System Ordinance,

2005 was submitted against him. Similarly, a separate challan under Section 15-AA KPK was also submitted against accused/respondent Waleed. At the commencement of the trial the prosecution produced and examined as many as nine witnesses, whereafter, accused/ respondents were examined under section 342, Cr.P.C. Accused denied the allegations and professed innocence. After conclusion of the trial, learned trial Court vide judgment impugned herein acquitted the accused/respondents.

Feeling aggrieved, the complainant/appellant has brought these connected appeals, challenging acquittal of the accused/ respondents.

5.Arguments heard and available record gone through with valuable assistance of learned counsel for the parties as well as learned AAG for the state.

6.It is the case of the prosecution that on 28.10.2018, at about 09:30 a.m., near Amgah Bridge, accused Waleed Khan along with his juvenile co-accused Zohaib, in furtherance of their common intention, committed the murder of Aksar Zaman by firing upon him with a 30-bore pistol. The occurrence was stated to have been witnessed by the complainant along with the passengers of the Carry Van, while the alleged motive was a dispute over landed property and monetary transactions between

the deceased and Muhammad Saleem, father of accused Waleed.

However, the prosecution story is marred by an unexplained delay in the lodging of the FIR. Though the occurrence allegedly took place at 09:30 a.m., the report was recorded at 10:45 a.m. at RHC Kot Najibullah, despite the distance between place of occurrence and RHC being only 15/16 kilometers. Such unexplained delay creates doubt about the prosecution version.

7.The testimony of the so-called eyewitnesses suffers from glaring contradictions. PW-6 stated that the motorcycle intercepted the Carry Van just after crossing Amgah Bridge, while PW-7 stated that the occurrence took place near Ratti Dheri, about 1000–1500 meters away. On the other hand, the complainant in Murasila Ex.PA claimed that the motorcycle came from the front, PW-6 and PW-7 gave conflicting versions, sometimes saying it came from the rear. Their statements are also inconsistent regarding how the injured/deceased was placed in the Carry Van, who transported the dead body, and at what time they reached the hospital or the police station. Such contradictions go to the root of the prosecution case. The Supreme Court in the case of “Muhammad Javed v. State (2016 SCMR 1144)” has consistently held that when material improvements and

contradictions occur in the ocular account, it becomes unsafe to rely upon the same.

8.The conduct of the witnesses also appears unnatural. Both PW-6 and PW-7 admitted that they made no attempt to stop the bleeding of the deceased or provide any immediate aid.

Ordinarily, close relatives or companions of an injured person rush to provide help, but here no such effort was made. Such conduct renders their presence at the spot doubtful. Another serious contradiction relates to the receipt of the dead body. While PW-6 and PW-7 claimed that the Medical Officer handed over the body to the complainant Fazal-ur-Rehman, receipt Ex.PW-8/4 shows that the body was actually received by Mahfouz Ali and Muhammad Siddique. It is settled that where documentary evidence contradicts oral testimony, the documentary evidence prevails. In view of aforementioned discrepancies in the testimony of material prosecution witnesses, the presence of the complainant and eyewitnesses at the spot, becomes highly doubtful and same was probably the reasons for delayed report.

The complainant stated that soon after the occurrence, one Mahfouz came who was requested to driver the carry van to hospital. Said Mahfouz has not been produced and examined by the prosecution and his non production would lead the Court to

draw adverse inference under Article 129-G of the Qanun-e- Shahadat Order, 1984 that had said witness been produced, he would not have supported the prosecution version. It also goes without saying that as per receipt Ex PW-8/4, the dead body of the deceased was also received by Mahfouz, but no witness named Mahfouz could be produced and examined by the prosecution. Similarly, no blood could either be recovered from the vehicle in question nor the complainant could produce his blood stained garments to the local police. Such unnatural conduct of the complainant, makes doubtful his presence at the scene of occurrence. In the case of “Zafar Ali Abbasi and another Vs. Zafar Ali Abbasi and others” reported as 2024 SCMR 1773, it was held by the august Supreme Court that;

“Moreover, the witnesses alleged that after the occurrence, they boarded the injured in their jeep to take him to a hospital for treatment and when they reached at Bansra Gali, the injured was shifted to Rescue Van of 1122 for taking him to THQ Hospital Murree. The natural reaction of the brother ought to have reached the hospital immediately in order to save the life of the injured, but the needful was not done. There was no justification in shifting the injured from the jeep to the Rescue Van. To substantiate the contention of the complainant, the

statements of the Driver of the Rescue Van was of utmost importance, but the IO did not record a statement of any of the members of the van. By not recording the statements of the driver or the other officials of the Van of Rescue 1122, the presumption would be that they might not be supporting the contention of the complainant. Besides, for the sake of arguments, if it is believed that the complainant and PW-2 boarded the injured in the jeep, then the jeep and clothes of the complainant and the witness must have been stained with blood. Admittedly, no blood was collected from the jeep nor the blood stained clothes of the witnesses were taken into possession by the Investigation Officer (`IO') and no explanation in this behalf has been advanced by the prosecution. The stance of the complainant and the eye-witness is not only improbable, but also got no support from the record. The prosecution has failed to prove the presence of the complainant and his nephew at the time and place of the occurrence.”

Similar view was taken in the case of “Abid Hussain and another Vs. The State and others” reported as 2024 SCMR 1608 as well as “Ghaffar Abbas alias Ghaffar Ahmed and others Vs. The State and others” reported as 2024 YLR

9.The statement of star prosecution witnesses i.e. PW-6 and PW-7, when read in juxtaposition with the site plan, the same are full of dents and doubts. As per site plan and the version of the investigating officer, the motorcycle driven by the accused as well as the carry van driven by the deceased, were going in same direction and while crossing the carry van, the accused fired at the deceased. The complainant on the other hand states that the motorcycle was coming from opposite direction and when reached near the carry van, the accused fired at the deceased. No bullet mark was found on the carry van being driven by the deceased, nor any blood could be recovered from the same. The passengers boarded in the Suzuki carry van at the relevant time, were also not produced during the trial of the case. In the given situation, the mode and manner of the alleged occurrence become highly doubtful. In the case of “Khizar Hayat Vs. The State” reported as 2025 SCMR 1339, it has been held by the apex Court that;

“There is glaring conflict between the ocular account and the medical evidence.

We have also noted that the conduct allegedly exhibited by the complainant party is offensive to normal human conduct, taking into account the number of individuals from both factions at the time of the occurrence. Despite the

absence of definitive guidelines regarding human conduct and behavior, it is reasonable to assume that the prosecution witnesses would not let the perpetrators go scot-free after the murder of their loved ones in the normal course of events, given the accepted standards of human behavior.

10.With regard to the confessional statement of juvenile accused Zohaib, the same is fraught with legal infirmities. It was recorded on oath, in sheer violation of the Oaths Act, 1873, which expressly prohibits administration of oath to an accused in criminal proceedings, rendering such confession inadmissible.

The Magistrate did not record it in his own handwriting, rather it was dictated to a stenographer, contrary to the High Court Rules.

The accused was not given adequate time for reflection, and contradictory certificates regarding timing were placed on record.

Being a juvenile, he was not dealt with in accordance with the Juvenile Justice System Act, 2018; his guardian was not informed, he was not kept in an observation home, nor was the Probation Officer engaged, which was a mandatory requirement under Section 5 of the Act. Moreover, both the accused were produced before the Magistrate for recording their confessional statement jointly through single application and were made to sit together, while the accused was given time to think over his

confession. In “Azeem Khan & another Vs. Mujahid Khan and another” (2016 SCMR 274), the Supreme Court emphasized that all mandatory precautions must be observed before recording a confession, failing which the same loses its evidentiary worth.

Relevant observations of the apex Court are reproduced below for ready reference;

“Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the provision of section 364 read with section 164, Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured

that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess, then all required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him. The statement of accused be recorded by the Magistrate with his own hand and in case there is a genuine compelling reason then, a special note is to be given that the same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be

handed over to any police official/officer whether he is Naib Court wearing police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused.”

11.The learned Magistrate, while recording confessional statement of the respondent, failed to follow the law, as such the confessional statement, so recorded would be of no help to the prosecution case. The medical evidence also does not advance corroboration to the prosecution case. The Medical Officer admitted that he did not open the thoracic cavity, and that his opinion regarding the bullet trajectory was based merely on surface markings, for which he used the term “probably.” He also admitted that the exact time of death was not mentioned in his report. Such equivocal medical evidence cannot, by itself, establish the guilt of the accused. It is a settled law that medical evidence is only corroborative in nature and cannot identify the culprit.

12.It is also noteworthy that the accused Zohaib was not named in the FIR; rather, only a person wearing a helmet was mentioned. He was implicated later through a supplementary statement of the complainant, without disclosing the source of

information. Even after his arrest, no test identification parade was conducted. It is settled law that identification for the first time in Court is inherently unsafe without prior test identification parade. Furthermore, the prosecution failed to establish any common intention between Zohaib and Waleed. Except the allegation that Zohaib was riding the motorcycle, no overt act was attributed to him.

13.As regards the motive, the complainant initially alleged that there was a dispute over property and financial transactions with Muhammad Saleem, but during his deposition changed his stance, stating that the dispute was about payment of land. No documentary evidence was produced to substantiate this plea, nor was any independent witness examined in support thereof.

Although, it is well settled principle of law that prosecution is not bound to setup a motive in every case but once it is alleged, it becomes duty of prosecution to prove the same and otherwise to suffer consequences thereof. In case titled "Muhammad Ashraf alias Acchu Vs. The State" (2019 SCMR 652), it was held that:

"7. The motive is always a double-edged weapon. The complainant Sultan Ahmad (PW9) has admitted murder enmity between the parties and has also given details of the same in his statement recorded before the trial court. No doubt, previous enmity can

be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse."

In case titled “Irfan Ali Vs. The State” (2015 SCMR 840), it was held that:-

“To award a capital punishment in a murder crime, it is imperative for the prosecution to lead unimpeachable evidence of a first degree, which ordinarily must get strong corroboration from other independent evidence if the witnesses are interested or inimical towards the accused. In a criminal trial no presumption can be drawn against the accused person as it is a cardinal principle of justice that no one should be construed into a crime without legal proof/evidence, sufficient to be acted upon. No care and caution was observed in the present case in light of this principle. No evidence of believable nature was led with regard to the motive in the case to lend support to the prosecution version”.

14.In these circumstances, where the prosecution witnesses are not confidence-inspiring, their statements suffer from material contradictions, the confessional statement is inadmissible, the motive is unproved, and the medical evidence is inconclusive, the prosecution has failed to prove its case beyond reasonable doubt.

15.The learned trial Court after proper reappraisal of evidence available on record, has rendered findings of acquittal in favour of respondents. In the cases titled “Raja Khurram Ali Khan and 2 others Vs. Tayyaba Bibi and another” (PLD 2020 Supreme Court 146) the august Supreme Court was pleased to hold:-

“It is by now a settled principle of criminal justice that, in appeals against acquittal, the accused has a double presumption of innocence: the first, when he was accused till the conclusion of his trial; and, the second, when he is acquitted. Thus, dislodging the same should be sparingly exercised by the Appellate Court. In fact, due credence is to be given to the findings of fact rendered by the trial Court, if the conclusion drawn is based on fair reading of evidence, and is not perverse or wholly unreasonable. In such cases, interference by the appellate Court in an acquittal order of the trial Court merely for the reason that another view of the evidence was possible, would not be legally correct. However, if the very principle of appreciation of evidence was erred, and had caused failure of justice, then the order of acquittal would warrant to be set aside.”

16.In view of the above, this Court reaches to an inescapable conclusion that the prosecution has miserably failed to prove its case against accused/respondents. This is one of the

celebrated principles of criminal jurisprudence that accused is the favourite child of law and he has a presumption of innocence in his favour and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance may be placed on the case titled "Faryad Ali Vs. The State" (2008 SCMR 1086) and “Sher Zad Khan and another Vs. Mst.

Zulekha and another” (2016 P.Cr.L.J. 541 Peshawar)”. It is also settled law that while giving benefit of doubt to an accused, it is not necessary that there should be so many circumstances. A single reasonable doubt would be sufficient to extent benefit to the accused. Reference may be made to the case of “Waqas Ahmed Vs. The State” reported as 2025 SCMR 1087, Imtiaz Hussain Shah alias Tajjay Shah and another Vs. The State and others reported as 2025 SCMR 1110, Muhammad Nawaz Vs.

The State reported as 2025 SCMR 1053, Muhammad Ashraf Vs.

The State reported as 2025 SCMR 1082 and Chetan Vs. The State, reported as 2025 SCMR 944.

17.The learned trial Court has correctly appreciated the evidence available on the file and the impugned judgment being well reasoned does not suffer from any infirmity which could call for interference. Needless to mention that though the attendance of accused/respondent Zohaib could not be procured during

proceedings before this Court, but since the prosecution failed to prove its charge against the accused, presence of respondent before the Court would not be necessary. Even otherwise, there is no bar on acquittal in absentia. Accordingly, this criminal appeal as well as connected criminal appeals bearing No. 110-A/2021 and 111-A/2021, being bereft of merits are dismissed.

Announced.

Dt: 24.09.2025.

*Tufail*

JUDGE

JUDGE

(D.B)

Hon’ble Mr. Justice Sadiq Ali Hon’ble Mr. Justice Aurangzeb