Muhammad Imran Vs The State & another

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Cr.A No. 292-A/2023

JUDGMENT

Date of hearing...................24.09.2025.................................

Appellant (Muhammad Imran) M/S Kashif Ali Jadoon and Mazhar Khan Jadoon, Advocates.

Respondents (The State & another) The State By Mr. Shoaib Ali, Assistant Advocate General and Respondent No.2/complainant By Mr. Muhammad Ali Qazi, Advocate.

AURANGZEB, J.- Through the instant criminal appeal, Muhammad Imran son of Gul Afsar has assailed his conviction recorded vide judgment dated 21.09.2023 passed by the learned Additional Sessions Judge-VIII, Abbottabad. By virtue of the impugned judgment, the appellant was convicted under Section 302 (b) PPC and sentenced to death, with a further direction to pay Rs.500,000/- (five hundred thousand) as compensation to the legal heirs of the deceased in terms of Section 544-A Cr.P.C.; in default thereof, he was ordered to undergo six months’ rigorous imprisonment. The appellant was also convicted under Section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, and sentenced to fourteen (14) years’ rigorous imprisonment along with a fine of Rs.1,000,000/- (one million). In case of default in payment of the fine, he was

directed to suffer a further six months’ rigorous imprisonment. All the sentences were ordered to run concurrently, and the benefit of Section 382-B Cr.P.C.

was extended to the appellant.

2.Brief facts of the case are that the complainant namely Muhammad Javed Khan alongwith dead body of minor Zaryab Khan son of Fida Muhammad Khan, made report to the local police in emergency ward RHC Havelian to the effect that he was present in his home.

At about 01:00 p.m search of his nephew Zaryab Khan was started as inquired from other children while searing around Zaryab Khan was found dead at Mohjallah Phalai Dandi Shakria Katha at 06:00 p.m and his neck was cut with a sharp object. People of locality reached at the spot. It transpired on inquiry that Imran son of Gul Afsar took the deceased Zaryab to the wilderness with intention of commission of wrongful act/sodomy and murdered him with a sharp tool for making hue and cry and threw his cropse in wilderness and common people saw, while he was coming on the day of incident at 02:00 p.m, hence, case FIR No.168 dated 02.03.2016 under section 302 PPC read with section 53 of the 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 at police station Havelian District Abbottabad.

3.After the completion of investigation, challan was submitted against the appellant for trial, who was formally charged to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution has produced twenty-two witnesses and thereafter the appellant recorded his statement under Section 342 Cr.P.C denying his involvement in the commission of the offence for which he was charged. However, he wished not to be examined as his own witnesses on Oath in rebuttal of charge against him within the contemplation of section 340 (2) Cr.P.C. or to produce any evidence in his defence. The learned trial Court on conclusion of the trial convicted and sentenced the appellant through the judgment dated 20.11.2020 as follows”-

“Death as be hanged by the neck till his death with payment of compensation of Five Hundred Thousand Rupees (Rs.5,00,000/-) payable to the legal heirs of victim/deceased under section 544 Cr.P.C recoverable as an arrear of land revenue for the offence of Qatl-i-Amd under section 320 (b) PPC. The provision of section 544-A Cr.P.C is mandatory, so, in case of default in payment of amount of compensation he has to further undergo for six (06) months simple imprisonment under section 544-A (2) Cr.P.C. Then also the compensation will be recovered as an arrear of land revenue, PLJ 2004 S.C 11, 1992 SCMR 549 and Fourteen years (14) Rigorous Imprisonment with fine Ten Hundred

Thousand Rupees (Rs.10,00,000/) for offence of sexual abuse under section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010. In case of non-payment of fine then he has to further undergo for six (6) months simple imprisonment under sections 386 Cr.P.C.64/65PPC.

The benefit of section 382-B is not extended to the convict.”

4.Being aggrieved from the judgment of the learned trial court, the appellant filed criminal appeal bearing No.220-A/2020 with Murder Reference No.09-A/2020 before this court. Vide judgment dated 25.05.2022, the appeal filed by the appellant was accepted and the impugned judgment was set aside and the instant case was remanded back to the learned trial court with the following observations:-

“The non-observance of codal formalities of Section 465 Cr.P.C by the trial court leaves no alternative to us but to set aside the impugned conviction and sentence awarded to the appellant and to remand the case with the direction to the learned trial court to constitute a medical board to assess the mental status of the accused and to proceed further in the case as per medical report of the board so constituted. The appellant should be treated as under trial prisoner henceforth. The murder reference is answered in negative.”

5.On receipt of the case file, from this court the learned trial court, with the compliance and direction of the order of this court, the learned trial court vide letter

endorsement No.6780-84/SMB/2022-2023 in respect of Constitution of Standing Medical Board of Police Services Hospital, Peshawar received. After fulfilling codal formalities, the appellant/accused appeared before the Standing Medical Board and vide letter No.79-84/MS/SMB/2023-24 dated 03.08.2023 report of Standing Medical Board received by the trial court. As per report of Standing Medical Board Police Services Hospital, Peshawar, the appellant assed by the Board Members and mentioned current mental state examination that no sign/symptoms of major mental illness have been found that the appellant/accused understands the nature of crime, its consequences and can face the trial in the court of law and defend himself.

It is pertinent to mention here that the appellant has not objected the report of Standing Medical Board produced before the learned trial court. Nor the appellant wish to produce any evidence in defence, therefore, in the light of the judgment of this court and after receiving the report of Standing Medical Board, the trial against the appellant was proceeded with and finally arguments were heard on 16.09.2023 and the appellant was convicted and sentenced through judgment dated 21.09.2023 impugned herein in the instant appeal.

6.Arguments of learned counsel for the parties as well as Assistant Advocate General heard and record of the case perused.

7.Through the instant appeal, the appellant has challenged the judgment passed by the learned trial Court whereby he was convicted and sentenced under Section 302 of the Pakistan Penal Code, 1860, read with Section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010. The conviction arose out of the brutal sexual assault and murder of a young boy, namely Zaryab Khan, son of Fida Muhammad Khan. After a full-dress trial, the learned trial Court, on the basis of oral, medical, forensic, circumstantial and confessional evidence, found the prosecution case proved beyond reasonable doubt and awarded the appellant capital punishment. The appellant, feeling aggrieved, has invoked the appellate jurisdiction of this Court, assailing the judgment on various grounds, including alleged delay in lodging the FIR, unreliability of circumstantial evidence, voluntariness of the confessional statement, and false implication at the behest of police.

8.To appreciate the matter, it is necessary to narrate the prosecution story as unfolded in the FIR. On 02.03.2016, the complainant Muhammad Javed Khan,

accompanied by the dead body of his nephew, minor Zaryab Khan, aged about four years, presented himself at the emergency ward of Rural Health Centre, Havelian, and lodged report that he was present in his house when the mother of the deceased, Mst. Naseem Bibi, informed him about her son’s disappearance. Upon receipt of this information around 1:00 p.m., the complainant, along with family members and villagers, commenced search of the missing child. The search continued for several hours until, at about 6:00 p.m., the body of Zaryab was found in the wilderness near Mohalla Phalai Dandi Shakira Katha. The child’s throat was slit with a sharp-edged weapon. The complainant and his companions, in a state of shock, carried the body to the hospital, where he reported the matter to the police at 7:15 p.m. The report further disclosed that during inquiry it transpired that the appellant Imran, son of Gul Afsar, had enticed the child on the pretext of sweets, subjected him to sodomy, and then murdered him to silence his cries.

9.The FIR was thus registered within little time after the body was recovered. The timeline is significant: the child went missing around noon, the complainant was informed at 1:00 p.m., the search ended with recovery of body at 6:00 p.m., and the FIR was lodged at 7:15

p.m. The appellant’s contention that the FIR was delayed is untenable. It is natural for the family to first search for the missing child before reporting to the police. In offences involving missing children, delay is not only understandable but inevitable, as the priority of the family is to locate the child alive rather than immediately lodge a complaint. Thus, the explanation for delay stands on firm ground and does not cast any doubt on the veracity of the prosecution story. The august Supreme Court of Pakistan in case titled Akhtar versus The State (2020 SCMR 2020) has held that:- “The occurrence in this case, as per prosecution, took place on 11.08.2004 and the matter was reported to police on 15.08.2004, whereafter formal FIR was registered. Apparently there is delay in reporting the matter to police, but said delay has been explained by the complainant in the FIR and before the trial court. In the FIR which was registered on the written application (Ex.PB) of complainant, it is mentioned that after missing of his son Shahid Ali, the complainant and others started searching him and in that search, they also went to the appellant and asked from him about the whereabouts of Shahid Ali. In his cross-examination, the complainant Shaukat Ali (PW4) while replying to a suggestion, stated that he orally informed Moharrar of police station that his son was missing on the next day of occurrence and the said Moharrar told him that police would search his missing son. In this case, Shahid Ali was the only son of complainant and was aged 12/13 years. It is quite natural for a father to put his best efforts in searching his missing

son before reporting the matter to police particularly when he had no suspicion against anyone. In the circumstances, delay in reporting the matter to police is not fatal to the prosecution.”

The apex court in another case titled Shamsher Ahmad and another versus The State and others (2022 SCMR 1931) has held that:-

“.......So far as the delay of about 2 hours 45 minutes in lodging the FIR is concerned, the complainant in his cross- examination has reasonably explained the delay by furnishing the details about the consuming of time as it took 15/20 minutes at the spot, about 30 minutes in reaching the hospital, he remained in hospital for about one hour and then reached the police station in another 35- 40 minutes where he had to wait for the SHO for more than an hour.........”

10.After registration of FIR, the investigation was entrusted to PW-1 Sub Inspector Hafeez-ur-Rehman, who drafted the necessary murasila (Ex.PA/1), prepared injury sheet (Ex.PW/1), and inquest report (Ex.PW 1/2).

The dead body was dispatched for autopsy. PW-7 Dr.Waqas conducted the post-mortem on the same day at 7:30 p.m. His medical report (Ex.PW 7/1) revealed that the victim had been subjected to sexual assault and thereafter slaughtered by cutting of the throat, resulting in rupture of the descending aorta, oesophagus, and windpipe, leading to immediate death. The injuries were ante-mortem and sufficient in the ordinary course of

nature to cause death. The time between injury and death was immediate, and the probable interval between death and post-mortem was more than five hours, which fully corresponds with the prosecution timeline.

11.The medical officer further testified that he examined the appellant and found him capable of performing sexual intercourse. He also confirmed that semen was detected in the samples sent to Forensic Science Laboratory. The FSL report (Ex.PW 22/23) proved positive for semen stains. The medical evidence thus corroborates the prosecution case in two vital respects: firstly, the child was sexually assaulted, and secondly, his throat was cut with a sharp-edged weapon, consistent with the recovery of knife at the appellant’s pointation. Medical evidence, though corroborative in nature, plays an important role in lending assurance to the ocular and circumstantial testimony. It is trite law that medical evidence must be read in conjunction with other prosecution evidence to test its veracity. In the present case, medical and ocular chains are perfectly consistent.

12.Turning to the ocular and circumstantial evidence, PW-11 Muhammad Javed Khan, complainant, reiterated the contents of the FIR and narrated that upon being

informed by Mst. Naseem Bibi about disappearance of Zaryab at 1:00 p.m., he joined the search. After hours of effort, the body was recovered at 6:00 p.m., and he promptly reported at Hospital. During cross- examination, nothing adverse could be extracted to shake his testimony. His conduct was natural and consistent with the behaviour of an aggrieved uncle of the deceased. His presence at all stages of the incident is unquestionable.

13.PW-12 Mst. Naseem Bibi, mother of the deceased, testified with anguish that she last saw her son playing, and when he did not return, she informed the complainant. She joined the search, and ultimately the body was recovered. Her testimony, though not that of an eye-witness, was truthful, spontaneous, and supported the prosecution’s chain. The defence could not suggest any ulterior motive for false implication of the appellant. The testimony of a mother in such cases carries great weight and cannot lightly be brushed aside unless overwhelming contradictions appear, which are absent here.

14.PW-14 Muhammad Bilal joined the search party after returning from college at 1:30 p.m. and corroborated the search process. PW-15 Khan Gul testified that he saw the appellant in a madrassa at

about 10:30 a.m. on the day of occurrence. PW-16 Khurram Shehzad deposed that the appellant came to his shop and purchased papars and toffees worth Rs.20, items meant for a child. This seemingly small circumstance is significant because it shows preparation and premeditation by the appellant to entice the victim.

PW-17 Waseem Arif testified that at about 1:00 p.m. he saw the appellant moving towards the wilderness, and although a wall obstructed full view, the appellant’s posture indicated he was carrying a child. His testimony is important as it provides the last-seen evidence connecting the appellant with the deceased shortly before recovery of the dead body. The Honourable Supreme Court of Pakistan in case titled Binyamin alias Khari and others versus the State (2007 SCMR

778)has held that:-

“The aforesaid pieces of evidence are normally considered as weak evidence yet capital punishment can be awarded if an unbroken chain of circumstances from the stage of last-seen evidence till death of the victim is established by conclusive evidence. In the present case, as mentioned above, there is a double presumption of last-seen evidence consisting of departure and lastly seen which was duly corroborated with the pieces of evidence on record in the shape of recovery of dead body and medical evidence which were believed by the Courts below in the impugned judgment.....”

15.PW-18 Kala Khan stated that he saw the appellant around Zohar time carrying a shopping bag.

PW-19 Sheraz Khan, a Suzuki driver, deposed that the appellant approached him at a bus stop, inquiring about transport to Havelian, and later, when given a lift, he noticed that the clothes of the appellant bore stains resembling blood washed with water. He clarified that the appellant was his co-villager, known to him for long, so the question of mistaken identity does not arise. PW- 20 Muhammad Riaz, maternal uncle of the appellant, testified that the appellant stayed at his house in the morning, took meals, and left at 11:00 a.m. His evidence places the appellant in the locality at the relevant time. When all these witnesses are examined together, they form a complete and coherent chain of circumstances pointing towards the guilt of the appellant and excluding any hypothesis of his innocence.

16.The investigation also produced vital recoveries.

PW-21 Junaid Khan, S.I., arrested the appellant on 03.03.2016 and recovered his blood-stained clothes from his house at Sara-e-Saleh. On 05.03.2016, the appellant led the police to the place of occurrence and pointed out the knife used in the offence, which was blood-stained and recovered from a spot thirty feet away from where the body was found. The recovery

was proved through pointation memo Ex.PW 10/1.

Recovery on pointation is admissible under Article 40 of the Qanun-e-Shahadat Order, 1984, and has strong evidentiary worth. The recovery of crime weapon at the instance of accused, particularly when corroborated by medical evidence, constitutes a strong incriminating circumstance. Here, the sharp-edged weapon corresponds with the medical cause of death, providing direct nexus between appellant and offence. The apex court in case titled Maqsood Ahmad versus The State (2006 SCMR 672) has held that:-

“The contentions raised by the learned counsel for the appellant cannot prevail. It is by now firmly settled that evidence of the eye-witnesses related to the deceased can sustain conviction if it is worthy of B reliance and is corroborated by any independent piece of evidence. The occurrence had taken place in the fields of the complainant, therefore, his presence as well as that of his close relative Muhammad Irshad on the spot is not doubtful. Both of them are, therefore, natural and probable witnesses. The eye- witness account furnished by them is consistent and straightforward and does not suffer from any serious infirmity. Their statements are not only sound and C consistent but are also amply corroborated by the medical evidence, the motive, promptly lodged F.I.R., recovery of the weapon of crime on the pointation of the appellant and positive report of the Fire-arms Expert. Besides, it is a case of single accused and it does not stand to reason that an innocent person was substituted for the real culprit by the deceased's father.”

The august court in another case titled Rafaqat Ali and others versus The State (2016 SCMR 1766) has held that:-

“The contention of the learned Counsel that the Appellants Nos.2 and 3 were not identified in the identification parade would not lead to draw an inference that they were not present at the place of occurrence. The FIR contained description of the Appellants with specific role. In fact, the injured witnesses in their testimonies before the trial Court have not only identified them but also implicated them with specific role. Holding of identification parade is not mandatory. If testing of a witness qua identity of accused even in Court inspire confidence and the witness is consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, in such circumstances, absence of witnesses during identification parade would not be fatal to prosecution case. The testimony of the injured eye- witnesses P.Ws 10 and 12 was confidence inspiring and could not be shaken despite lengthy cross- examination by the defence. The recoveries effected on the pointation of the Appellants wedded with the empties recovered from the place of occurrence in terms of F.S.L report. The P.Ws 10, 12 and 13 were inmates of the house and their presence at the place of incidence as eye-witnesses was natural. Out of the aforesaid eye-witnesses, P.Ws-10 and 12 received firearm injuries at the hands of the Appellants during the occurrence.”

The Honourable Supreme Court of Pakistan in recent judgment delivered in case titled Jannat Iqbal

versus Muhammad Khurshad and another (2025 SCMR 562), has held that:-

“.......It is a circumstance that the petitioner is a single accused and he caused multiple injuries on the vital part of Jannat Iqbal (injured) which is supported by the medical evidence and also corroborated by the recovery of dagger, coupled with reports of Chemical Examiner which are positive.......”

17.Equally significant is the confessional statement of the appellant recorded before the learned Judicial Magistrate on 07.03.2016 under Section 164 Cr.P.C.

PW-4, the Magistrate, deposed that he recorded the confession in his own hand, ensured compliance with mandatory formalities, granted sufficient time for reflection, and verified voluntariness of the statement.

The confession bore appellant’s signatures and thumb impressions in both Urdu and English. In his confession, the appellant admitted having taken the child, committed unnatural offence, and murdered him with a knife to stifle cries. Though the appellant retracted at trial, such retraction does not invalidate confession once it is found voluntary and truthful. In the present case, the confession is corroborated by recovery of knife, medical cause of death, FSL report, and circumstantial chain.

18.The plea of the appellant that the confession was involuntary is a bald assertion. The Magistrate, an

independent judicial officer, testified on oath that no coercion was involved. The appellant failed to show enmity with the police or complainant that could motivate false implication. The argument that the word “oath” was mistakenly written in certificate is immaterial, for the confession was not administered on oath, as confirmed by the Magistrate. Technical objections cannot override substantive truth when all requirements of law were fulfilled. The apex court in case titled Khan Muhammad and others versus the State (1999 SCMR 1818) has held that:-

“11. In support of this appeal, it was vehemently argued that the perusal of the confessional statement shows that they were recorded on oath. We have noticed that each statement starts with the expression "Baqrar Salh" and thus on the basis of the use of said term, it was stated that the same was inadmissible as held by this Court in the case reported as Muhammad Bakhsh v. The State (PLD 1956 SC 420). We have carefully considered this aspect of the case and we have noticed that the learned Magistrate had taken all the precautions and had faithfully complied with all the formalities as envisaged under section 364, Cr.P.C. He had put necessary questions to both the appellants to satisfy himself that the confession was being made voluntarily. He had also administered warning to the appellants that their statements can be used against them in evidence and after having satisfied himself he proceeded to record the statements of both the appellants. In this view of the matter, we are not prepared to believe that the learned

Magistrate, who was well-cognizant with the law, would have administered oath to the appellants before recording their statements. In our view, as a matter of routine the expression Baqrar Salh? was written and in fact no oath had been administered. We are fortified in this view by the fact that no question was put to the Magistrate in cross-examination about the administering of oath to the appellants. Had oath been administered as contended on behalf of the appellants, such social question would have been asked from the Magistrate in this cross- examination. Failure on the part of the defence to put the said question goes a long way to show that in fact no oath had been administered to the appellants.

12.It was further contended that the appellants were arrested on 9-8-1989 and their custody having been remanded to the police, their confession was recorded on 20-8-1989 and, therefore, the same cannot be termed voluntary. We have considered this aspect of the case and we are of the view that this issue cannot be resolved in its generality, but each case has to be considered on its own facts. Delay in recording the confession by itself cannot render the confession nugatory if otherwise it is proved on record that the same was made voluntarily. We are fortified in this view by a judgment of this Court reported as Muhammad Ismail and another v. State 1995 SCMR 1615.”

The Honourable Supreme Court of Pakistan in case titled Shehzado versus The State (PLD 2005 Supreme Court 477) has held that:- “The careful perusal of evidence would lead to an irresistible conclusion that the petitioner made confessional statement free from any outside influence or inducement and the circumstances would

amply suggest that he willingly and voluntarily confessed his guilt before the Magistrate. We agree with the learned counsel that the confessional statement of an accused should not be recorded on oath but mere fact that a judicial confession was recorded on oath, would not be sufficient to reject it as it may be only a procedural mistake in the form of an irregularity in exercise of jurisdiction which may not affect the statement in Substance. The rule is that notwithstanding the procedural defect in recording the confession, it can safely be made of conviction.”

19.The appellant also raised the plea that he was falsely implicated. However, no reason or motive was shown as to why the complainant party, who lost their only child, would spare the real culprit and falsely implicate the appellant. It is settled law that false implication of an innocent person in such heinous offences without any motive is highly improbable. The august court in case titled Sher Afzal and another versus The State (2025 SCMR 894) has held that:- “Furthermore, the presence of the complainant and other eye-witnesses at the scene of the crime on the day of the incident remains undisputed. The petitioners have failed to provide any plausible reason for their alleged false implication in the case while allowing the actual perpetrators to escape justice. The possibility of wrongful substitution in such cases is exceedingly rare. Reference may be made to the case of Nasir Ahmed v. The State (2023 SCMR 478), where this Court observed that: "Presence of PWs cannot be doubted. Learned counsel for the petitioner could not point

out any reason as to why the complainant has falsely involved the petitioner in the present case and let off the real culprit. Substitution in such like cases is a rare phenomenon".

20.On cumulative evaluation, the prosecution evidence is consistent, confidence-inspiring and fully corroborated by medical and forensic chain. The confessional statement of the appellant provides direct evidence, while recoveries, circumstantial witnesses, and last-seen testimony provide further corroboration.

The entire evidence forms a chain so complete that it leaves no room for doubt about the guilt of the appellant. The principle of benefit of doubt, though well- recognized, cannot be stretched to fanciful or speculative doubts. In the present case, no such reasonable doubt exists.

21.It is well to remember that criminal jurisprudence places the accused as a favourite child of law, but this protection is not a license to escape liability where guilt is established through cogent evidence.

22.The facts and circumstances of the present case have shockingly proved that the appellant first sodomy/rape and thereafter brutally murdered four years old child, this inhuman conduct of the appellant is an act of extreme barbarity, which not only destroyed

the life of the helpless victim but also wounded the

conscience of society at large. The Honly Quraan has

strictly forbidden the killing of innocent life, declaring Surah Al-Isra Ayat 33:- َ س ْل ط ٰـ ۭنًا فَ َلا يُس ِْرف ُ ظلُو ًۭما فَقَ ْد َجعَ ْلنَا ِل َو ِليِّ ِهۦ ْ ق ۗ َو َمن قُتِ َل َم ِ ّ س ٱل َّتِى َح َّر َم ٱ َّ ُ إِ َّلا بِ ْٱل َح ۟ َُو َلا تَ ْقتُل َ وا ٱلن َّ ْف

ورا ُ ِفّى ْٱلقَتْ ِل ۖ ِإن َّهُۥ َكانَ َم ْن ًۭ ص

Translation:

“Do not take a ‘human’ life—made sacred by Allah—except with ‘legal’ right. If anyone is killed unjustly, We have given their heirs the authority, but do not let them exceed limits in retaliation, for they are already supported by law”.

and further Surah Al-Maidah Ayat No.32:-

ض فَ َكأَن َّ َما َ ِم ْن أَجْ ِل ٰذَلِكَ َكت َ ْبنَا َ َعلَ ٰى بَ ِني ِإس َْرائِي َل أَن َّهُ َمن قَتَ َل نَ ْف ًۭسا ِبغَي ِْر نَ ْف ٍس أَ ْو ف ِ سا ۢ ٍد ِفى ْٱلأ َ ْر

ِ َسلُنَا بِ ْٱلبَيِّ ٰن ت ث ُ َّم ِإ َّن َ اس َج ِمي ۭعًا ۖ َو َم ْن أَحْ يَاهَا فَ َكأَن َّ َما ٓ أَحْ يَا ٱلن َّ ُ اس َج ِمي ۭعًا ۚ َولَقَ ْد َجا ٓ َءتْ ُه ْم ُر َ قَتَ َل ٱلن َّ ِ يرا ِ ّم ْن ُهم بَ ْعدَ ٰذَلِكَ فِى ْٱلأ َ ْر َض لَ ُمس ِْرفُون ً ۭ َِكث

Translation

“That is why We ordained for the Children of Israel that whoever takes a life—unless as a punishment for murder or mischief in the land—it will be as if they killed all of humanity; and whoever saves a life, it will be as if they saved all of humanity. Although Our messengers already came to them with clear proofs, many of them still transgressed afterwards through the land.

The Holy Prophet (Peace Be Upon Him) also

says that “He is not one of us who does not show mercy

to our children (Sunan al Trimidhi).”

The Constitution of Islamic Republic of Pakistan,

1973, under articles 9 and 14, guarantee the right to life and dignity of every person, while the Khyber

Pakhtunkhwa Child Protect and Welfare Act, 2010

imposes a binding duty upon the state to safeguard

children from violence, exploitation, and abuse. In these

circumstances the principle of justice and deterrence

demand that the guilty be hold strictly accountable and dealt with the severest punishment prescribed by law.

23.Furthermore, a heinous crime has been committed, which is a factor to be taken into consideration for determination of sentence to be awarded and in the cases of brutal premediated murder of a young child, death sentence appears to be appropriate, as has been held by the august Supreme Court of Pakistan in case titled Hamid Mahmood and another versus The State (2013 SCMR 1314) has held that:-

“In the facts and circumstances of the case, the considerations pertaining to quantum of sentence, have been examined. The reasons for the award of the death penalty far out weight the considerations for the award of lesser sentence. The tender age of the minor, the brutal and heinous nature of the crime and pre-mediation persuades us to agree with the sentence awarded by the learned trial Court as well as the learned High Court. The deterrent aspect of the sentence cannot be lost sight of either as it was a crime of kidnapping for ransom of minor, followed by murder. In such an eventuality, the normal sentence of death should be awarded and the Court should neither hesitate nor search for laboured pretexts to award a lesser sentence, as has been held by this Court, in the case, reported as Muhammad Sharif (Supra).”

Further reliance is placed on the recent judgment rendered by the august court in case titled Abid

Hussain and another versus The State and others (PLD 2025 Supreme Court 510), the relevant portion of the same is reproduced below:-

“Now adverting to the quantum of sentence, we are mindful the instant crime is extremely heinous. However, it remains to be considered whether the circumstances of the instant case warrant and justify the ultimate penalty of death. It is well-settled law that under the doctrine of "rarest of rare", the death sentence may be imposed where the offence is exceptionally brutal, shocking to the collective conscience of society, and where there exists a compelling need for deterrence. In the present case, the offence is of the most brutal nature, wherein the appellant, Abid Hussain, has been found guilty of the cold-blooded murder of his own wife, mother of his children, that too within the confines of their matrimonial home and in the presence of their young children. In these circumstances, the appellant Abid Hussain does not deserve any leniency whatsoever. Accordingly, his conviction and sentence awarded by the trial Court, upheld by the High Court vide impugned judgment dated 29.10.2020 are maintained and Appeal bearing No. 131 of 2023 is dismissed.”

24.The brutal sodomy/rape and murder of a four- year-old child is a crime not only against the victim and his family but against society at large. The constitutional guarantee of protection of children, the legislative mandate under the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, and the principles of deterrence demand that the guilty be held accountable.

25.For the foregoing reasons, this Court finds no infirmity, illegality or perversity in the impugned judgment of the learned trial Court. Hence, the instant criminal appeal, being devoid of any merit, is hereby dismissed. Consequently, the conviction and sentence awarded to the appellant by the learned trial Court through the impugned judgment are upheld and maintained. The Murder Reference No.6-A/2023 is answered in positive.

Announced:

JUDGE

JUDGE

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

Aftab PS/*