Muhammad Khan Vs The state etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Criminal Appeal No.456-P/2024

Muhammad Khan

Versus

The State, etc.

For appellant: Barrister Aamir Khan Chamkani. For respondent: Mr. Hussain Ali, Advocate. For State: Mr. Amir Zeb, AAG.

Assistance: Mr. Mazhar Ali Khan, Research & Reference Officer.

Date of hearing: 12.06.2025.

JUDGMENT

Dr. Khurshid Iqbal, J.-

1.A man may lie, but circumstances rarely do. When direct evidence is lacking or in doubt, the chain of circumstances often reveals the truth more clearly than words. In cases built on circumstantial evidence, it is the consistency, coherence, and completeness of facts that guide the judicial conscience. Against this backdrop, the present case shall be examined.

2.Factual background of the case is that on 18.10.2019 at about 23:30 hours, complainant Abdul Wali was at home when he was informed that his son Tariq (victim) had been shot. He immediately rushed to the casualty department of Lady Reading Hospital (LRH), Peshawar, where he found his son had already lost his life. He was informed that Tariq, accompanied by his relatives Samiullah and Aminullah, was walking towards Shinwari Town when two unknown men on a motorcycle approached, exchanged brief words with Tariq, and then opened fire, fatally injuring him. The initial version of events was recorded in the shape of Murasila (Ex PW 4/1), naming the assailants as unknown. On the basis of this information, case FIR No. 1641, dated 19.10.2019, was registered under Sections 302/34 PPC, at Police Station Pahari Pura, Peshawar. Subsequently, on 16.12.2019, the complainant recorded a supplementary statement under

Section 164 of the Code of Criminal Procedure, 1898 (“Cr.P.C.”) before a Judicial Magistrate, naming Muhammad Khan and Dilawar (“appellants”) as the perpetrators. Both were arrested, and after completion of investigation, the prosecution examined 15 witnesses during trial. The appellants were afforded opportunity to cross-examine the witnesses. Upon closure of the prosecution evidence, they were examined under Section 342 Cr.P.C., they denied the allegations and refuted the evidence, but did not opt to produce evidence in defence or record statements under Section 340(2) Cr.P.C.. The trial culminated in their conviction and sentencing by the learned Additional Sessions Judge-III, Peshawar (“trial court”), vide judgment dated 14.05.2024, as below:

Under section 302(b)/34 PPC, both appellants were sentenced to suffer rigorous imprisonment for life as Tazir with payment of compensation of Rs. 2,000,000/- each to the legal heirs of the deceased under section- 544-A (1) Cr. PC, recoverable as arrears of land revenue or, in default, to undergo simple imprisonment for a period of six months each; and, Under section-15 of Khyber Pakhtunkhwa Arms Act, 2013, appellant Dilawar was sentenced to three years simple imprisonment with a fine of Rs. 10,000/-, or to suffer simple imprisonment of three months in default thereof. They were given the benefit of section-382-B Cr. PC, so that the sentence shall run concurrently.

3.The appellant Muhammad Khan has filed Criminal Appeal No. 456-P/2024, and the appellant Dilawar Khan has filed Criminal Appeal No. 536-P/2024, assailing their respective convictions and sentences awarded by the learned trial court. In addition, the complainant has filed Criminal Revision No. 161-P/2024 seeking enhancement of the sentences. All three matters, arising out of the same judgment delivered by the learned trial court, are being decided through this single opinion.

4.We have anxiously considered the arguments advanced by the learned counsels for the parties and gone through the record with their valuable assistance.

5.The prosecution's case is primarily built on circumstantial evidence, though it also includes elements of direct oral testimony. The story begins with an SMS sent from mobile number 0305-9022598 to the victim’s mobile number 0300-377048, in which the sender, pretending to be a girl, invited the victim to a meeting. Upon receiving the message, the victim shared the details with eyewitnesses Page 2 of 12

PW-2 and PW-3, urging them to accompany him to the proposed meeting place. Although initially reluctant, the eyewitnesses eventually agreed, and all three set out together. En route, the victim stopped at Salman Bakery, where he bought some flowers and ice cream. They, then boarded a rickshaw and proceeded to the location. Upon arrival, they disembarked. The victim began walking along the residential area of Sheikh Wala, while PW-2 and PW-3 took a different path along the Budhu Road bank. The victim asked them to continue ahead. After walking some distance, they turned back and, as they approached the vicinity of the intended meeting spot, they saw the victim again. At that point, the victim instructed them to return. At that moment, a motorcycle bearing registration number APL, with two riders, arrived at the scene. The witnesses noticed the motorcycle approaching the victim. The pillion rider dismounted and, after exchanging a few words with the victim, opened fire multiple times, striking the victim and causing him to collapse. The assailants, then, fled towards SS Plaza. On their way back, they passed near the eyewitnesses, who were able to see their faces but were, too, fearful to intervene. Once the attackers had fled, the eyewitnesses rushed to the victim, who lay bleeding on the ground. They promptly informed the victim’s family. Subsequently, an FIR was lodged by the victim’s father against unknown assailants. In his complaint, he stated that the culprits could be identified by the relatives who were present, should they see them again.

6.On 16.12.2019, the complainant, Abdul Wali, recorded a supplementary statement under Section 164 Cr.P.C. before a Judicial Magistrate, wherein he named Muhammad Khan (son of Khalid) and Dilawar (son of Mula Din) as the perpetrators. He further disclosed that the motive behind the murder was rooted in Muhammad Khan’s illicit relationship with the complainant’s niece, Mst. Fatima (PW- 5), who was formally engaged to the deceased, Tariq. Following this disclosure, a test identification parade was held on 19.12.2019, conducted by the then Judicial Magistrate (PW-14). During the parade, both eyewitnesses — PW-2 and PW-3 — positively identified the appellants as the assailants they had seen at the time of the incident. Thereafter, on 23.12.2019, PW-2 and PW-3 recorded their statements under Section 164 Cr.P.C. before a Judicial Magistrate, reaffirming their identification of the accused Page 3 of 12

and implicating them in the offence based on their observations during the identification parade.

7.As previously noted, the prosecution examined a total of 15 witnesses, all of whom were subjected to extensive cross-examination by the defence. Upon the conclusion of the prosecution’s evidence, the appellants were examined under Section 342 Cr.P.C., enabling them to explain the circumstances appearing against them in the prosecution's case. Given that the present matter comprises both oral and circumstantial evidence, the case demands a holistic analysis from multiple perspectives. The central question that guides this assessment is whether the evidence brought on record by the prosecution sufficiently links the appellants to the commission of offence. Moreover, in light of the submissions made by the learned counsels for appellants, it must be determined whether any reasonable doubt arises that disrupts the chain of incriminating circumstances—and if so, the legal significance and consequence of such doubt must be carefully considered.

8.Before delving into the factual and evidentiary aspects of the case, it is imperative first to establish the legal framework governing the admissibility and standard of proof required for evidence, particularly in cases where a conviction is sought. Equally important is to examine how the presumption of innocence and the doctrine of benefit of doubt have been interpreted by superior courts over time. In this context, reference may be made to the case of Hashim Qasim (SC: 2017),1 wherein the Hon’ble Supreme Court emphatically held that circumstantial evidence must form a coherent and continuous chain of events. Each circumstance must be so interlinked with the next that they together create an unbroken chain, one end of which touches the dead body, and the other, the neck of the accused. Any missing link in this chain would be fatal to the prosecution’s case, rendering the evidence unreliable for sustaining a conviction. Similarly, with respect to the standard of reliance on circumstantial evidence and the burden upon the prosecution to prove the case beyond reasonable doubt, the Hon’ble Supreme Court in the case of Fayyaz Ahmad (sc: 2017)2 laid down the following principles:

1 Hashim Qasim v. The State (2017 SCMR 986). 2 Fayyaz Ahmad v. State (2017 SCMR 2026).

Page 4 of 12

5.To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the Prosecution to provide all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain.

To carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. “Reasonable Doubt” does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows, To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without any missing link, otherwise at random reliance on such evidence would result in failure of justice.

9.Further fortifying the present discussion, it would be pertinent to refer to the jurisprudence developed by the Supreme Court of India on the standard of proof in cases based on circumstantial evidence. The Supreme Court in Sharad Birdhichand (INSC: 1984)3 case formulated the following conditions:

153.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of 3 Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC Page 5 of 12

Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri)p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency,

(4)they should exclude every possible hypothesis except the one to be proved, and

(5)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

10.The principles laid down in Sharad Birdhichand reaffirm the universal standard that circumstantial evidence must lead to a singular, inescapable conclusion of guilt, excluding all other possibilities. Where such certainty is lacking, the benefit of doubt must necessarily go to the accused. This standard fully aligns with our own judicial approach. On the strength and requirements of circumstantial evidence, the Supreme Court of India in Sharaddananda (INSC: 2007) 4 case observed that:

127.As already stated above, it is not correct to say that only direct evidence is strong evidence while circumstantial evidence is weak evidence. Both kinds of evidence can be strong in a given situation. The only requirement in circumstantial evidence is that the chain of links connecting the accused with the crime should be established beyond reasonable doubt.

11.Reverting to the facts of the case, it is well established that a criminal offence generally comprises two essential elements: mens rea and actus reus. Mens rea refers to the mental element—such as motive and intention—while actus reus pertains to the physical act or omission committed in pursuance of that intent. In the present case, the prosecution was required to establish, first, the motive, then the intent, and finally the physical act. It was the prosecution’s burden to prove all these components 4 Sharaddananda vs. State of Karnataka (AIR 2007 SC 2531).

Page 6 of 12

affirmatively and beyond reasonable doubt in order to sustain the charge. We shall first examine the motive aspect of the case to assess whether the prosecution has successfully discharged this initial burden.

12.The appellants were formally implicated in the case after a lapse of over two months, during which the investigation continued to develop. The motive behind the offence was first disclosed by the complainant in his Section 164 Cr.P.C. statement, identifying the illicit relationship between appellant Muhammad Khan and Mst. Fatima (PW-5), the fiancée of the deceased, as the cause of offence. This assertion was fully corroborated by PW-5 herself during her testimony. Despite being subjected to thorough cross-examination, PW-5 remained consistent, firm, and unshaken, thereby lending high evidentiary value to her statement. Further corroboration emerged from the Call Detail Record (CDR) data, which substantiated PW-5’s claim of regular communication with the appellant. She candidly admitted that Muhammad Khan had given her a mobile phone (0302-9250447) and that they frequently spoke using his numbers (0302-8855660 and 0310- 0911438). While the CDR reflects communication on 03.02.2019 and 04.12.2019, which postdates the occurrence, this fact does not undermine the prosecution’s case. Rather, it reinforces the existence and continuity of relationship, providing a strong motive for the commission of the offence, which culminated in the murder of the victim who was engaged to PW-5.

13.The next critical aspect is the involvement of the appellants in the commission of the offence. Initially, the FIR was lodged against unknown persons; however, the appellants were formally implicated through a supplementary statement recorded by the complainant. This led to a test identification parade, during which PW-2 and PW-3 positively identified the appellants. Their identification was subsequently reinforced through their statements recorded under Section 164 Cr.P.C. before the Judicial Magistrate. While the learned counsel for the appellants has raised objections regarding the credibility of the identification parade, alleging non-compliance with codal formalities, the Apex Court in recent authoritative pronouncements, particularly in Ansar (SC: 2023)5 and 5 Ansar and others v. The State and others (2023 SCMR 929).

Page 7 of 12

Tasar Mehmood (SC: 2020)6, categorically held that an identification parade must be conducted fairly and in light of the circumstances of each case; it is not a rigid ritual, and minor procedural lapses do not vitiate a prosecution case built on credible and probable evidence. Moreover, it is a trite law that an identification parade is merely corroborative. As was held in Ghazanfar (SC: 2012)7 and Muhammad Ali (SC: 2022)8 cases if a witness identifies the accused in court, remains consistent on material points, and his testimony inspires confidence, then even the absence of an identification parade is not fatal to the prosecution’s case. In Ansar (supra) the Apex Court while distinguishing discrepancies from contradictions observed as follow:

7.[...] During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query she could not point out any major contradiction, which could shatter the case of the prosecution. In this regard, it must be kept in mind that the discrepancies have to be distinguished from contradictions. The contradiction in the statement of a witness may be fatal for the prosecution case but minor discrepancy in evidence will not make the prosecution case doubtful. Where discrepancies are of minor character and do not go to the root of the prosecution story and do not shake the salient features of the prosecution version, they need not be given much importance.

14.In addition to the direct evidence produced by the prosecution, one of the most significant pieces of corroborative evidence is the Call Detail Record (CDR) data of the relevant mobile numbers. It is well recognized that circumstantial evidence can be susceptible to fabrication or manipulation; hence, it must be scrutinized with particular care under the singular criterion of whether it credibly links the appellants to the offence. The record reveals that the victim received an SMS on his mobile number 0300-037748 (hereinafter referred to as the receiving number) from 0305- 9022598 (last sending number). The Investigating Officer obtained separate CDR reports for both these numbers, which form part of the record. The data reflects that both numbers were in continuous communication from the morning of 18.10.2019—the day of the occurrence—until 6 Tasar Mehmood and another v. The State and others (2020 SCMR 7 Ghazanfar Ali v. The State (2012 SCMR 215). 8 Muhammad Ali v. The State (2022 SCMR 2024).

Page 8 of 12

11:21 PM, the time when the last SMS was sent by the last sending number and received by the receiving number. Following the arrest of appellant Muhammad Khan, two mobile phones were recovered from his possession, documented vide recovery memo Ex:PW-7/1. A Nokia mobile phone was found containing SIM numbers 0302- 8855660 and 0310-0911438, while a Q-Mobile phone held SIM numbers 0310-9960672 and 0303-0905895.

15.A careful analysis of the CDR data of the relevant SIM numbers reveals compelling circumstantial evidence linking the appellants to the offence. Notably, at the time the last SMS was sent to the victim’s mobile number on 18.10.2019, both the sending and receiving numbers were traced to the same cell tower—located at Faisal Colony Chowk, Dalazak Road, Peshawar—indicating that both phones were operating in close physical proximity to one another and to the scene of occurrence, which itself is near the victim’s residence. Further examination of SIM number 0302- 8855660, recovered from the possession of appellant Muhammad Khan, shows that on 18.10.2019, its location at 4:41 PM and 7:15 PM was at Pakistan Corn Products, opposite City Railway Station, Dalazak Road—the same location recorded for the last sending number between 12:56 AM and 10:39 PM on the same day.

16.Similarly, SIM 0310-0911438, also recovered from Muhammad Khan and registered in his brother Naveed’s name but admittedly used by the appellant, consistently reflects the same location from 12:30 PM to 10:40 PM on the day of occurrence—including 10:16 PM, the time immediately surrounding the incident. Additionally, SIM 0304-9978023, though registered in the name of another brother, Ismail, was also in use by the appellant and remained in frequent contact with the victim’s number during August 2019. The last sending number likewise had a pattern of regular communication with the victim’s number prior to the occurrence.

17.Another astonishing aspect of the case is the disclosure made by the appellant Muhammad Khan in his statement under Section 161 Cr.P.C. to the local police. It is a trite law that Under Art. 38 of the Qanun-e-Shahadat Order, 1984 (QSO), no confession of an accused made before a Police Officer could be proved against him. Similarly, Article 39 of QSO bars the proving of a confession Page 9 of 12

made in the police custody. Cumulatively, these Articles stipulate that confession of an accused made before a Police Officer, either in the custody or otherwise, is inadmissible. However, Article 40 of QSO provides an exception to the rule embedded in Arts. 38 & 39, which states that an incriminating fact discovered in consequence of an information provided by an accused while in the custody of a Police Officer could still be proved against him. In the present case, the appellant, Muhammad Khan, made a significant disclosure during the investigation. He revealed that he had been communicating with the victim using a voice changer to impersonate a girl, through mobile number 0304-9978023, which was registered in the name of his brother, Ismail. The victim, unaware of the deception, had shared with him the number from which he last received communication, which was ultimately delivered to the appellant through a minor girl. The fact that the last sending number was in the use of the appellant is corroborated by the location data of other SIM cards recovered from the appellant's possession.

18.From the above evidence, it becomes abundantly clear that the circumstances cumulatively and conclusively connect appellant Muhammad Khan to the commission of the offence. This is not a case of a single suspicious number or isolated communication. Instead, multiple SIMs, all recovered from the appellant, are linked by consistent tower locations, synchronized timing, and prolonged telephonic contact with the victim. Even though the last sending number was not traced to a particular individual, its location at the time of occurrence precisely matched that of the SIMs recovered from the appellant. The convergence of telecommunication records, geolocation, and recovery from possession eliminates the likelihood of mere coincidence. The CDR data speaks volumes, forming a strong and unbroken chain of circumstantial evidence that firmly establishes the appellant's connection with the planning and execution of the offence.

19.Another significant piece of evidence relates to the forensic examination of the crime empties. Six spent casings and two bullets recovered from the crime scene were confirmed by the Forensic Science Laboratory (FSL) to be fired from a 9mm pistol. However, the FSL returned negative reports with respect to both pistols the 9mm pistols recovered at the instance of appellant Dilawar and Page 10 of 12

the one recovered at the instance of Muhammad Khan, indicating that neither matched the crime empties. It is also a settled law laid down in Imtiaz Ullah (LHC: 2024)9 and Akbar Ali (SC: 2021)10 that recovery of weapon on pointing out of the accused in presence of negative report of FSL qua matching of the crime empties was inconsequential, but it was not fatal to the prosecution case. Thus, we hold that the negative FSL report is not fatal to the prosecution case, as the prosecution has otherwise proved its case.

20.Additional supporting evidence includes the recovery of blood-stained earth from the scene, an electric bulb affixed to a nearby electricity pole, the victim’s blood- stained garments, and a red-colored toy bear—all retrieved from the place of occurrence. Most importantly, the post- mortem report of the deceased, Tariq, aligns with the prosecution’s case. Collectively, these circumstances not only corroborate the prosecution's version but also reinforce the authenticity of the crime scene. They form a consistent chain of events, leaving no reasonable doubt or space for conjecture in favour of the defence.

21.In contrast, the case against appellant Dilawar Khan does not meet the same threshold. Although he was identified as the motorcycle rider and was present at the crime scene, the evidence falls short of proving that he shared a common intention with Muhammad Khan or participated in the actual commission of the offence. He was not assigned the role of firing, nor was any association between him and the motive established through evidence. If this were a case of feud or enmity, the element of common intention could not have been ruled out. However, since no such motive is present, the appellant cannot be held liable for the offence without independently proving his intent. While a 9mm pistol was recovered at his instance, it did not match the crime scene ammunition, rendering it ineffective for implicating him under Section 302/34 PPC. This fact also renders the charge under section 15-AA against him as not proved. Similarly, the recovery of the 9mm pistol on his pointation is inadmissible in evidence, as the same was effected during investigation while he was in police custody. The prosecution, therefore, has not been able to establish his active role or mens rea in 9 Imtiaz Ullah v. The State (2024 P Cr. L J 1467 [Lahore (Rawalpindi Bench)]).

10 Akbar Ali and others v. The State and others (2021 SCMR 104).

Page 11 of 12

the commission of the murder. His convictions and sentences are thus not sustainable in law.

22.Consequently, Criminal Appeal No. 456-P/2024 filed by appellant Muhammad Khan is dismissed. His conviction and sentence under Section 302(b) PPC are upheld. Benefit of section 382-B Cr.P.C. is extended to him. While Criminal Appeal No. 536-P/2024 filed by appellant Dilawar Khan is allowed, and the convictions and sentences awarded to him by the learned trial Court are set aside, and he is acquitted of the charges leveled against him. He be set free forthwith, if not required in any other case.

23.In view of the above, the connected Criminal Revision No.161-P/2024 for enhancement of sentence has been rendered infructuous and is hereby dismissed.

Announced

(M.Iqbal, SSS) Sd. x x x

JUDGE

Sd. x x x

JUDGE

DB: Justice Sahibzada Asadullah, and Justice Dr. Khurshid Iqbal.

Page 12 of 12