Noor Muhammad VS State & another

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) Cr.A. No. 260-M/2024 (Noor Muhammad vs State & another) Cr.A. No. 261-M/2024 (Noor Muhammad vs State & another)

JUDGMENT

Date of hearing: - 19.6.2025

Appellant: - (Noor Muhammad) by Mr. Shabir Ahmad Khan (Dawlatkhel), AHC.

Respondents: - (Respondents are not represented being a motion case).

SALAH-UD-DIN, J.- Through this single judgment, we intend to decide instant criminal appeal bearing No. 260-M of 2024 titled “Noor Rahman vs State & another” as well as connected criminal appeal No. 261-M of 2024 titled “Noor Rahman vs State & another”, as both these connected criminal appeals are by-product of one and same FIR No. 76 dated 01.3.2023, registered U/Ss 302,311 PPC, R/W section 15-AA at P.S Chakdara, District Dir Lower. Through impugned orders/judgments of even date i.e. 30.9.2024, accused/respondent of Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

both these connected appeals have been acquitted of the charges levelled against him, in two separate trials i.e. 15/II of 2023 and 18/III of 2023.

2.Arguments of learned counsel for appellant were heard and available record perused with his able assistance.

3.As per prosecution story, complainant/ SHO namely Mohib Ullah Khan, along with other police “Nafri” attracted to the venue of crime i.e.

house of the accused/respondent namely Zahid Islam, pursuant to receipt of prior information about an offence of dual murder. On the spot, the police party apprehended the accused namely Zahid Islam and from his personal possession the police recovered a .30-bore pistol, along with charger having two live rounds of .30-bore. On inquiry, complainant/SHO was informed by accused/respondent that on the fateful night he was asleep in his residential room, when in the Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

meanwhile, complainant heard sound, therefore, he went to the room of his brother namely Shahab Khan, whereby he saw his sister-in-law ()بھابی namely Mst. Sadiqa Bibi, in objectional condition with another person. Both the deceased were done to death through pistol by the accused, on the alleged pretext of honour. When complainant/SHO went to the room, whereby he spotted dead bodies of both the deceased. From CNIC of male deceased, he was identified as Hussain Ahmad son of Noor Muhammad, appellant herein. In view of report of complainant/SHO “Murasila” (Ex. PW- 7/2) was drafted which culminated into ibid FIR (Ex. PA) registered against present respondent at P.S concerned.

4.It is an admitted fact on both ends that the instant occurrence of double murder of deceased is an unseen and unwitnessed event, being committed at odd hours of the night and at unknown time. Till date Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

nobody has come forward as an eyewitness of the occurrence. Moreover, there is considerable delay of more than six hours in lodging of the report, because as per contents of FIR the alleged occurrence of dual murder of deceased has taken place on 01.3.2023 at midnight time, however, the matter was reported to local police at 06:15 hours, rather as per record it was police party who had attracted to the venue of crime pursuant to receipt of prior information. No explanation whatsoever has been offered by the prosecution that why the matter was not reported to local police in time.

5.Prosecution version is that the respondent committed murders of his sister-in-law namely Mst.

Sadiq Bibi and Hussain Ahmad, her alleged paramour, in the name of honour and thereafter he lodged the report before police. First question which needs resolution by this Court is that as to whether FIR lodged by an accused can be used as evidence against him or not?

Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

6.It is well settled that FIR by itself is not a substantive piece of evidence unless its contents are affirmed on oath and the maker thereof is subjected to test of cross-examination. Registration of FIR at the instance of accused, in a sense, is a confession before police officer which is inadmissible in evidence against him according to Article 38 of the Qanun-e-Shahadat Order, 1984 which reads as: - “38. confession to police officer not to be proved. No confession made to a police officer shall be proved as against a person accused of any offence”.

First Information Report basically

covers the information regarding a cognizable offence given to Officer In-charge of a police station, the purpose of which is to set the law in motion for conducting investigation in the case. It is not a substantive piece of evidence unless maker himself deposes in Court to confirm the contents of the FIR entered therein at his behest but the situation before us is altogether different. Respondent has denied the lodging of report at his instance. Keeping in view the status of FIR in view of the above circumstances of the case, this document by itself cannot advance the prosecution case except it is recorded by a person Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

who is near to die which is commonly known as “dying declaration”. In this regard, august Supreme Court of Pakistan in its judgment rendered in case titled “Ghaus Muhammad alias Ghausa and another Vs. State” reported as 1979 SCMR 155 has held that:-

“The maker of the F. I. R. has died. It cannot be used as corroboration of the testimony of another person, namely Nur Muhammad P. W. At best the prosecution can use it for showing that the name of Nur Muhammad is mentioned in the F. I. R. but that by itself would not advance the prosecution case”.

In context of the case in hand,

complainant/SHO did not disclose the name of that person who had allegedly informed him about involvement of respondent/accused qua murder of both the deceased. On his own turn, complainant was examined in Court as PW-2, who deposed in his cross-examination that he was informed by an informer via mobile phone, however, he did not mention this very fact in his initial report in the shape of “Murasila”, Ex. PW-2/7. Even otherwise, statement made by accused in the form of FIR, Ex.

PA is inculpatory in nature, which is not admissible in view of Article 38 of Qanun-e-Shahdat Order, 1984, wherein status of FIR is that of his previous statement and inculpatory, therefore, cannot be Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

made a basis for his conviction. In this regard, reliance is placed on the recent judgment of apex Court, rendered in case titled “Muhammad Ramzan v/s State” reported as 2025 SCMR 762, whereby it was held that:-

12.For the sake of discussion, if we consider Exh.PF to be report of the petitioner, then at the most it could be considered as confession before police which is inadmissible evidence within the meaning of Article 38 of the Qanun-e-Shahadat Order, 1984 ("QSO"). Article 38 of the ("QSO"), read as under:-

"Article.38. Confession to police officer not to be proved: No confession made to a police officer shall be proved as against a person accused of any offence."

In case titled, "Muhammad Saleh v. The State" (PLD 1965 Supreme Court 366), this Court has held that report made by an accused to police is inadmissible evidence. Relevant part of the judgment is reproduced below:-

"Muhammad Saleh himself went to Police Station to report the matter. What he said was recorded at 11.30 a.m. on 26th February. That statement was inadmissible evidence on account of its inculpatory nature."

It is settled law that FIR by itself is not a substantive piece of evidence unless its contents are affirmed on oath in the witness box by its maker and its maker is subjected to the test of cross-examination. In view of Articles 140 and 153 of the QSO, FIR being a previous statement can only be used for contradicting its maker but unless the same is not (Sic) proved through its maker, cannot be used as a substantive piece of evidence in favour of the prosecution's case. In this regard we would refer to the judgment of the Supreme Court of India in "Nasar Ali's case (AIR 1957 SC 366), wherein it has been held that:- "A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under section 157 of the Evidence Act or to contradict it under section 145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused nor it corroborate or contradict other witnesses. It is a cardinal principle of criminal jurisprudence Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

that the innocence of an accused person is presumed till otherwise proved. It is the duty of the prosecution to prove the guilt of the accused subject to any statutory exception."

As stated earlier, FIR is not a substantive piece of evidence unless proved by its maker by deposing on oath in the witness box in support thereof except recorded on the report of a person who is near to die. In such eventuality, the FIR is commonly known as "dying declaration", and is admissible evidence under Article 46 of the QSO, however, such declaration can also not be used as corroboration of the testimony of another witness, as held by this Court in case titled, "Ghaus Muhammad alias Ghaus and another v. The State (1979 SCMR 155). Relevant part of the judgment is referred below:-

"The maker of the FIR has died. It cannot be used as corroboration of the testimony of another person, namely, Nur Muhammad PW. At best the prosecution can use it for showing that the name of Nur Muhammad is mentioned in the FIR but that by itself would not advance the prosecution case."

13.In view of our discussion and the law on the subject referred above, we are firm in our view to hold that, even if, we accept that FIR of this case to be report of the petitioner, the same cannot be used as admissible evidence against him. Both the courts below have erred in law by taking into consideration the FIR as admissible evidence against the petitioner that too in the case of a capital charge.

Likewise, Hon’ble apex Court in case

titled “Hayat Ullah v/s State” reported as 2018 SCMR 2092, in respect of the matter-in-issue has declared that:-

“No direct evidence was available against the accused. Main evidence relied upon by the courts below was confession of accused before the investigation officer, which was inadmissible evidence in terms of Arts. 38 & 39 of the Qanun-e- Shahadat, 1984. Pointing out of the place where dead body of deceased was thrown and the place of recovery of motorcycle by the accused could not be termed as discovery as a consequence of information received from the accused within the meanings of Art. 40 of the Qanun-e-Shahadat, 1984 as the said places were already in the knowledge of the police and the complainant party, therefore, it was also Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

inadmissible evidence. Neither the prosecutor nor the defence made any objection upon bringing the said inadmissible pieces of evidence on record. Conviction of accused was based on inadmissible evidence.”

Further reliance, in this regard is placed on the earlier expounded judgments of apex Court, rendered in case titled “Muhammad Saleh Vs. The State” reported PLD 1965 Supreme Court 366 and case titled “Muhammad Bakhsh Vs. State” reported as PLD 1956 Supreme Court (Pak.) 420) First information report is a previous statement of accused in view of Articles 140 and 153 of the Qanun-e-Shahadat which can be used for contradicting its maker but unless it is proved in accordance with the above provisions of law, it cannot be given the status of evidence, as such, cannot be considered as a proof of its contents mentioned therein by its maker. In this regard, we would refer the judgment of Supreme Court of India reported as “Nasar Ali Vs. The State of Utarpardesh” (AIR 1957 S.C 366) wherein it was laid down that:-

“A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under s. I57 of the Evidence Act or to contradict it under S. 145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses. It is a cardinal Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

principle of criminal jurisprudence that the innocence of an accused person is presumed till otherwise proved. It is the duty of the prosecution to prove the guilt of the accused subject to any statutory exception”. In light of various provisions of the Qanun-e-Shahadat Order, 1984 and the above referred judgments of Superior Courts, we reach to the definite conclusion that FIR lodged by an accused cannot be used against him as evidence and to this extent findings of learned trial Court qua acquittal of respondent are exceptional in nature, which do not require any interference by this Court, hence upheld and maintained.

7.It is otherwise well settled that when substantive evidence fails to connect an accused person with commission of an offence or is disbelieved, corroborative evidence is of no help to prosecution, as corroborative evidence cannot by itself prove prosecution’s case.

Hon’ble Supreme Court of Pakistan while rendering its judgment in case titled “Muhammad Afzal alias Abdullah and others vs. The State and others” reported as 2009 SCMR 639 has also expressed almost a similar view in para-12 of its judgment, which is reproduced hereunder for ready reference;

Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

“After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be.”

Hon’ble Supreme Court of Pakistan

in its judgment rendered in case titled “Imran Ashraf & 7 others v/s The State” reported as 2001 SCMR 424, has also observed;

“Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony. Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion.'' In support of same ratio, further

reliance may also be placed on the judgment reported as 2007 SCMR 1427.

8.The only piece of evidence against present respondent is that his sister-in-law namely Mst. Sadiqa Bibi, a vulnerable member of the society has met an unnatural death inside the premises of her own house, therefore, accused has to offer some explanation that happened to her. It is settled principle of law that initial burden always lies on shoulders of prosecution to prove guilt of an accused. When that onus is discharged in accordance with law then accused, who is charged Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

for murder of a vulnerable member of his family, is required to offer explanation within the meaning of Article 122 of Qanun-e- Shahdat Order, 1984. Ibid principle is also reflected from Raja Khurram Ali Khan’s case (PLD 2020 S.C 146), wherein Hon’ble apex Court has observed that Article 122 of Order came into play only when prosecution had discharged its “legal” burden to prove guilt of an accused by producing sufficient evidence, except the facts, which were especially in knowledge of the accused leading to the inescapable conclusion that the offence was committed by him. In case of "Saeed Ahmad (2015 SCMR 710), Hon’ble apex Court has also observed that with regard to vulnerable members of society such as children, women and infirm, who were living with accused or were lastly seen in his company, accused ought to offer some explanation as to what happened to them; where instead of offering explanation accused remained silent or offered a false explanation, he casts a shadow upon himself, but this did not mean that burden of proof had shifted upon the accused, as it was for prosecution to prove its case. In Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Khurshid’s case (PLD 1996 S.C 305), apex Court has held that while appraising the circumstantial evidence, Court is to keep in mind the locale of the incident. If the place of incident is a place where no witness was available and the accused had the exclusive knowledge about the incident, the simpliciter denial on the part of the accused will not be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of the offence. Keeping in view the attending facts and circumstances of subject event, prosecution was legally bound to have discharged its onus as per ration of aforesaid dicta. When that onus is discharged then Article 122 of the Order would come into play. It means that when prosecution fails to discharge its initial burden, conviction of accused cannot be recorded on the sole ground that he has failed to offer plausible explanation regarding the unnatural death of the vulnerable member of his family living with him under the same roof because in that eventuality the matter would become of mere adverse presumption or mere suspicion taken from silence or implausible explanation by the accused. It is settled law that Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

suspicions could not substitute legal proof nor a suspect could be condemned on the basis of moral satisfaction in the absence of evidentiary certainty. Wisdom is taken from judgment rendered in Muhammad Pervaiz case supra (PLD 2019 S.C 592). In present case, as highlighted above, subject occurrence of murder of deceased lady is an unseen and un-witnessed event, therefore, in all eventualities, onus solely lies on the shoulders of prosecution to prove that it was respondent who could be saddled for murder of his own sister-in-law in the company of her alleged paramour, especially, when there is no direct evidence is in field against present respondent.

9.Likewise, since prosecution has failed to prove its case against respondent qua committing murders of both the deceased, on the alleged pretext of honour, therefore, the alleged recovery of weapon of offence in the form of a .30-bore pistol has no value & worth in the eyes of law, especially when it is an admitted fact floating on surface of record that the instant occurrence is nocturnal one, being committed at odd hours of the night.

Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

10.Prosecution has not been able to

discharge its initial burden in the instant case.

Learned trial Court has therefore rightly extended benefit of doubt to accused/respondent through impugned judgments of even date i.e.

30.9.2024, rendered in two separate trials.

11.Even otherwise, it is a settled law that an acquitted accused earns double presumption of innocence, which right cannot be taken away from him unless and until it is proved on record through strong evidence that judgment of acquittal is either perverse or against evidence on record, which is not the case here in view of afore-stated reasons. In this respect, wisdom is derived from case titled “Sardaran Bibi Vs. The State and others” reported as 2024 SCMR 1116, whereby it was held that: -

“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 jurisprudence that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. Courts are very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, is passed in gross violation of law, or suffers from the errors of grave misreading or non-reading of the evidence.”

An accused person, as a matter of

right, is presumed to be innocent before trial unless the charge is proved against him/her. Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

(Reference can be made to case titled “Jehangir vs Amin Ullah & others” reported as 2010 SCMR

12.It is also a settled law that it is not necessary that there are various factors in case to create doubt but even a single circumstance creating doubt in the prosecution version is sufficient for acquittal of an accused. It is regarded as a safeguard against convicting an innocent person on analogy of a fair and just legal system. In case titled “State Vs. Ahmad Umar Sheikh and others” reported as 2021 SCMR 873, Hon’ble Supreme Court has held as under:

“Even if a single circumstance creates reasonable doubt in prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation”.

13.In view of what has been discussed above, both these connected criminal appeals being bereft of any merits stand dismissed, in limine.

Announced Sd/- Dt: 19.6.2025 JUDGE Sd/-

JUDGE

Nawab (D.B.) Hon’ble Mr. Justice Salah-ud-Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah