Nihar Ali Vs Zeeshan & another

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) Cr.A No. 110-M/2022

Nihar Ali S/o Shah Wazir Khan ..(Appellant) vs Zeeshan & another ....(Respondents)

Present: Marwan Khan, AHC, for the State. Rahimullah Chitrail, Asst. A.G, for the State.

Muhammad Imran Khan Advocate for respondent No. 1.

Date of hearing: 26.08.2025

JUDGMENT

SALAH-UD-DIN, J.- The appellant has filed the instant appeal under section 417 (2-A) of the Criminal Procedure Code 1898 (“Cr.P.C”), against the order/ judgment dated 26.2.2022, passed by learned Additional Sessions Judge/ Judge Child Protection Court, Swat, whereby acquitted the respondent No. 1/ accused, from the charge leveled against them, in case FIR No. 666 dated 29.09.2016, under Section 324,337-D PPC, Police Station Rahim Abad, District Swat.

2.A brief review of the facts of the instant case reveals that, according to the contents of the FIR, on 29.09.2016 at 13:30 hours, the complainant, Nihar Ali, was engaged in work at Dangram when he received Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

a call on his mobile phone from his brother, Saeed, informing him that another brother, Uzair Ali, and one Zeeshan were involved in a scuffle. The complainant immediately rushed to the Casualty Hospital, where he found his brother lying drenched in blood. He came to know that the accused, Zeeshan, had stabbed his brother with a knife with the intention to kill him, resulting in injury. The complainant’s statement was recorded by the police official at the Casualty Hospital in the form of a Murasila, which was later registered as an FIR against the accused.

3.After fulfilment of all legal proceedings and on conclusion of trial, after hearing arguments the learned trial court acquitted the accused, vide order/ judgment dated 26.02.2022. Being aggrieved, the appellant preferred this appeal against the acquittal of the respondent No.01/accused, before this Court.

4.Arguments of learned counsels for the parties as well as learned Asst. A.G, for the state heard, and record gone through with their available assistance.

5.It is evident from the material facts on the record that the accused/respondent engaged in a scuffle with brother of complainant, resulting in injuries. To Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

substantiate its stance, the complainant/prosecution was given the opportunity to produce evidence, through which thirteen witnesses were presented. First, the ocular account of the case must be examined. The complainant lodged a report stating that he was informed by his brother regarding the incident.

However, there is no reference to any eyewitness in the FIR but during cross-examination, PW-6 Uzair Ali (injured) stated that Hazrat Lal had witnessed the occurrence.

The complainant, appearing as PW-5,

stated in examination-in-chief that he was informed by his brother via mobile phone. During cross- examination, when questioned regarding the mobile number from which the information was received, he admitted that he had not mentioned any such number to the police. Consequently, no CDR record exists to verify the call, casting doubt on the reality of the complainant’s claim. The complainant further admitted that he reached the hospital at approximately 2:30 P.M, where his uncle Muhammad Nawab, Akhtar Ali, Hazrat Lal, and Zeeshan (mason) were also present. Yet, no report was recorded by the police at that time from the injured or any other person. This indicates a delay of about one Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

hour in lodging the report. When examined, PW-6 Uzair Ali stated that no family member accompanied him to the hospital; instead, his friends did. This contradicts the complainant’s statement that his maternal uncle Muhammad Nawab and others accompanied the injured, thus creating a factual discrepancy.

The complainant admitted that upon

reaching the hospital, no report of the injured had been taken by the police. This is illogical, as a prudent procedure would entail recording the statement of an injured person immediately available at the hospital, rather than waiting for a relative to arrive, especially when the complainant stated that his maternal uncle was present. PW-7 Saeed (Saad) stated in examination-in- chief that upon reaching the place of occurrence, many people were present and he found his brother Uzair in injured condition. He was informed by these people that the accused Zeeshan had stabbed his brother. The injured was subsequently taken to the hospital, prompting PW-7 to call the complainant. However, during cross-examination, PW-7 admitted that he was not an eyewitness to the occurrence and had not seen the altercation himself. He could not identify the persons who conveyed the information to him. He further Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

admitted that when his injured brother was being taken for rescue, the accused Zeeshan was still present at the scene. PW-7 also acknowledged contacting his brother via mobile phone but did not provide the mobile number to the police for CDR verification and he has no self- mobile phone.

The case record shows contradictions and procedural lapses: the complainant’s claim of being informed by mobile lacks CDR proof; the injured’s statement differs from the complainant regarding eyewitnesses and hospital accompaniment; there was a one-hour delay in lodging the FIR despite the injured being present in the hospital prior to the arrival of complainant; and PW-7 was not an eyewitness, relying on hearsay without identifying sources. These inconsistencies cast doubt on the prosecution’s case.

6.It is also part of the record that a question was put to the eyewitness of the occurrence, namely Hazrat Lal (PW-9), who stated that the accused first stabbed Uzair with a knife and then stabbed himself.

However, the record is wholly silent on this point.

Neither the complainant nor the injured, and indeed not even PW-9 in their examination-in-chief, mentioned that the accused, after stabbing Uzair, stabbed himself.

Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

This fact was not recorded in the complainant’s initial report, nor was it narrated by the injured in his own statement. Furthermore, PW-6, PW-7, and PW-9 stated that other persons were present at the scene; yet none identified these persons by name or associated them as independent witnesses to the occurrence. These omissions, along with numerous contradictions in the statements of all PWs, cast serious doubt on the reliability of the ocular account of the case.

7.Turning towards the confessional

statement of appellant, the learned Magistrate recorded his statement before trial court as PW- 13, wherein in his examination in chief he stated that the accused was produced before him and after fulfilling legal formalities he started to record the confession of statement of accused as per law, however, during statement U/S 342 Cr.PC the accused denied the confession statement by stating that the same was recorded by the Judicial Magistrate without fulfilling legal formalities. During cross examination PW-13/ Magistrate admitted that he was asked question from the accused in Pashto and then written down it in Urdu language, however, perusal of record reveals that the Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

accused had put his thumb impression on his documents i.e. certificate, confessional statement.

It is evident from the available record that that the learned Magistrate/ PW-13 during cross examination himself admitted that the order sheet did not specifically mention that the accused was produced at 12:00 PM and was given forty-five minutes for reflection. The same had been mentioned in the certificate. At the time of recording the confessional statement of the accused, no inquiry was made from the police as to whether the accused had been medically examined. It was stated that in question No. 19, the accused was asked whether he had been medically examined, to which he replied in the negative, further stating that he had been directly produced before the Court. It was admitted that while recording the confessional statement of the accused, no order was made for his medical examination. It was also admitted that in question No. 15 of the questionnaire, the accused was asked whether he wanted to consult a counsel or his relative, to which he replied in the affirmative, but no opportunity was given to him for such consultation. It was admitted that the accused was not specifically informed about the punishment provided by law to Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

which he could be subjected. It was further admitted that in questions No. 12 and 13, the word “police” was not specifically used.

Confessional statements of accused

recorded in such a manner cannot therefore be relied upon safely. In case tilted “Azeem Khan and another Vs. Mujahid Khan and others” Hon’ble Supreme Court of Pakistan has held that ‘...sufficient time for reflection was to be given after the first warning was administered.

At the expiry of such time, recording Magistrate had to administer the second warning and the accused shall be assured that now he was in the safe hands’. [1]

8.It also transpires from record that before recording confession, tendency of prosecution, pressure, coercion and promise of appellant with prosecution for making confession has not been discouraged. In other words, before making confession by appellant inculcation of prosecution for extorting confession from his mind was never removed. Thus, on all these grounds, it cannot be termed to be voluntary confessions. In this regard, in case tilted ‘Manjeet Singh Vs. The State’, it was held by the Hon’ble

1.2016 SCMR 274 (“Azeem Khan and another Vs. Mujahid Khan and others”) Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

Supreme Court of Pakistan, that “it is not prudent to convict solely on a retracted confession without independent corroboration. The Court must examine all material points and circumstances to ensure the confession’s truthfulness and voluntariness. However, corroboration is not an absolute requirement; it is a rule of abundant caution to remove doubt. A retracted confession, if found true and voluntary, can be taken into account and may serve as the sole basis for conviction. [2]

Needless to say, that I am not fortified by confessional statement of appellant keeping in view surrounding circumstances for its recording before learned Judicial Magistrate, in order to satisfy me qua its truthfulness and voluntary nature of these retracted confession, as such, it can be surely inferred that same was recorded by appellant in an utter state of fear and due to inducement of prosecution. In case tilted “Asif Mahmood Vs. The State” it was held by Apex Court, that “Confessional statement for being relied upon should not only be true, voluntary and believable but should be without fear, favour or any inducement.”[3]

2.PLD 2006 SC 30, (‘Manjeet Singh Vs. The State” 3. 2005 SCMR 515 (“Asif Mahmood Vs. The State”) Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

9.The record further reveals that the weapon of offence, i.e., the knife, was recovered from the possession of the accused according to the police’s stance. However, the eyewitness, PW-4 of the recovery memo, stated during cross-examination that he could not confirm whether the knife was recovered from the right or left side of the folding of the shalwar, nor could he recall the colour of the clothes worn by the accused at that time. He also admitted that GT Road, Amankot, is a busy and densely populated area where people were present at all times, yet no private witness was associated by the police in connection with the recovery memo. The Investigating Officer also admitted during cross-examination that the recovery memo (Ex.PW-5/1) does not mention whether the qameez and banyan had cuts, and that the recovered knife was not sent for expert analysis. Moreover, according to the FSL report, the blood found on the banyan and qameez was human, but there was no mention of the blood group. It is also evident from the record that the weapon of offence was not sent to the FSL to determine whether it was blood- stained, nor does the record state whether the knife was blood-stained, these facts create contradictions in the prosecution’s story and weaken its case.

Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

10.The available record further reveals that the injured was allegedly produced before a doctor for medical examination, and while the injury sheet is part of the case record, the inquest report bears no official seal. It is an admitted fact that the prosecution was required to produce the doctor to substantiate its stance regarding the injuries sustained by the injured; however, the prosecution failed to do so. In the absence of the doctor’s statement or an official seal on the inquest report, the prosecution’s case is significantly weakened and gives rise to serious doubts in the mind of the court.

It is also part of the record that there exists another cross-version case, bearing FIR No. 856 dated 24.11.2016 under Section 337-F(iii) PPC of PS Rahim Abad, in which the present accused is the complainant.

In such circumstances, it is apparent why the prosecution refrained from recording the statement of the doctor, therefore, the case of prosecution is full of doubts.

11.Pursuant to the above reappraisal of whole record of the case, this Court reached to the conclusion that the prosecution / complainant failed to bring home the charge against the accused. It is an established legal principle that even a single reasonable doubt is enough Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

to record acquittal of an accused as in the case of (Najaf Ali Shah vs. The State), the august Supreme Court has held that “it is a settled principle that even a single doubt must be resolved in favour of the accused.” [4] The same principle was reiterated in the

case titled, The State through P.G. Sindhand others versus Ahmed Omar Sheikh and others. [5]

12.Even otherwise, an accused person, as a matter of right, is presumed to be innocent before trial unless the charge is proved against him/ her. Acquittal at the trial gives rise to double presumption of innocence for an accused. An appellate Court needs to be cautious while considering the evidence and should avoid reversal of an acquittal, unless it finds that the acquittal is perverse, conjectural, arbitrary, jurisdictionally defective and prompted by mis-reading or non-reading of evidence. Even if a contrary view is formed on re- appraisal of evidence, it should not be used to disturb an acquittal, provided convincing evidence is available on the record to reverse acquittal. In this respect, in case tilted Jehangir v. Aminullah & others, the learned

4.2021 SCMR 736 (Najaf Ali Shah vs. The State), 5. 2021 SCMR 873 (The State through P.G. Sindhand others versus Ahmed Omar Sheikh and others) Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din

Apex Court held that “an Appellate Court will not overturn an acquittal unless the finding is wholly unreasonable or based on disregarded, misread, or illegally received evidence, supported by overwhelming proof to prevent a miscarriage of justice”. [6]

13.In view of what has been discussed above, the learned counsel for the appellant-complainant has not been able to pinpoint any material defect or illegality in the impugned judgment and as such, the learned trial Court has rightly ordered acquittal of the respondent- accused from the charge levelled against him. For the afore-stated reasons, the instant criminal appeal being bereft of any merits stands dismissed.

Announced Dt: 26.08.2025

Sd/-

JUDGE

6.2010 SCMR 491 (Jehangir v. Aminullah & others) Rahmat Ali / Steno (S.B) Hon’ble Mr. Justice Salah-Ud-Din