Mst. Sheema Vs Jamal Nasir & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) Cr.A No. 35-M/2025

Mst. Sheema wife of Afsar Ali (Appellant) v/s

Jamal Nasir & others (Respondents)

Present: Muhammad Parwaish, AHC, for appellant/complainant.

(Respondents are not represented, being a motion case).

Date of hearing: - 02.10.2025

JUDGMENT

SALAH-UD-DIN, J.- Appellant namely Mst.

Sheema has filed instant criminal appeal U/S 417 (2-A) of Code of Criminal Procedure, 1898 (“Cr.P.C”), against order/judgment of acquittal dated 15.01.2025 passed by learned Additional Sessions Judge/I.Z.Q, Matta, Swat, rendered in case FIR No. 500 dated 02.7.2023, registered U/Ss 302, 34 PPC at P.S Matta, District Swat, whereby he has acquitted accused/respondents No. 1 & 2 namely Jamal Nasir and Rehmat Ali from the charges leveled against them, by invoking emergent provision of section 265-K Cr.P.C.

Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

2.Arguments of learned counsel for appellant/complainant were heard in considerable detail and requisitioned record perused with his able assistance.

3.As per contents of ibid FIR, complainant namely Mst. Sheema reported the matter to local police at casualty ward of Matta hospital in terms that on the fateful night she was present in her house, along with her husband namely Afsar Ali and other children. In the meanwhile, accused namely Jamal Nasir came there and called her husband to came out of the house. Thereafter, her husband left the house in the company of aforesaid accused and did not return till morning time. He was also contacted on his mobile phone, however of no avail. On inquiry, complainant/wife came to know that her husband namely Afsar Ali was killed by present respondents namely Jamal Nasir and Rehmat Ali, through stone blows. Subject occurrence of murder of the deceased might have been witnessed by anyone, present on Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

the spot. Motive qua commission of offence was disclosed to be previous ill-will between the parties, whereby deceased Afsar Ali has lodged a report against present respondents in respect of commission of theft committed at his shop, due to which present respondents were annoyed and they have also extended serious life threats to husband of the complainant. In view of report of the complainant “Murasila” was drafted which culminated into ibid FIR registered against present respondents at P.S concerned.

4.Upon completion of

investigation, complete challan was submitted against accused before learned trial Court.

Charge was also framed against respondents, to which they pleaded not guilty and claimed trial. Some partial evidence in the form of PW-1 to PW-5 have also been recorded in the case in hand. In the meanwhile, learned counsel for respondents submitted an application for their acquittal U/S 265-K Cr.P.C, which was allowed by learned trial Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

Court on the strength of its impugned order/judgment dated 15.01.2025, hence, instant criminal appeal.

5.It is an admitted fact on both ends that the instant occurrence of murder of deceased is an unseen and unwitnessed event.

As per contents of “Murasila” followed by ibid FIR, the alleged occurrence of murder of deceased has taken place during odd hours of the night and that too at unknown time. Till so far nobody has come forward as an eyewitness of the occurrence and even the complainant/wife was not the eyewitness of the event of murder of her deceased husband because at the relevant time she was present in her house. It was alleged by the complainant in her initial report that on the night of occurrence it was the accused namely Jamal Nasir who came to her house and called upon her husband namely Afsar Ali, whereafter, her husband went with the said accused and did not return till morning. Later on, dead body of the deceased was recovered Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

from a place commonly known as “Tor Gat”, which is situated at a distance of 150 square feet, from the house of complainant.

Likewise, in her initial report, complainant has neither disclosed the source of her information nor satisfaction qua implication of present respondents in the case in hand, except mere mentioning of the fact that it was accused Jamal Nasir who had visited her house at night time and called upon her husband. The entire prosecution’ s evidence is silent regarding the fact that how and through which means complainant/wife came to know about involvement of co-accused/respondent namely Rehmat Ali in the case in hand because nowhere it was mentioned by complainant in her report that the aforesaid Rehmat Ali was present along with Jamal Nasir at the time of calling of her deceased husband.

6.On her own turn, complainant was examined in Court as PW-1. In her examination-in-chief, she almost reiterated & affirmed the same facts as was part and parcel Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

of her initial report, however, her cross- examination is worth perusal. In her cross- examination, PW-1 deposed that the place of occurrence is visible from her house, however, she could not see the accused due to darkness of the night. At the same breath, she also admitted as correct that their house is surrounded by boundary wall and their house was also having a door. Complainant also clarified in her cross- examination that she did not spot the accused from inside due to existence of boundary wall.

She has also made an improvement in terms that both the accused have visited their house on the night of occurrence and called her deceased husband. Needless to highlight, in her initial report, she has only attributed the role of calling of her deceased husband to accused namely Jamal Nasir. In her cross-examination, she has also brought last-seen evidence in terms that her deceased husband while leaving the house in the company of accused was seen by Shahid and Ghulam Muhammad, however, at the same breath, she made an admission to the effect that names of both the aforesaid PWs Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

have not been cited in her initial report because both these witnesses have informed her about the factum of last-seen evidence, after the registration of the instant FIR. Likewise, testimonies of PW-2 namely Ghulam Muhammad and PW-4 namely Shahid Khan have no value & worth in the eyes of law because names of both these PWs have not been mentioned by the complainant in her initial report in the shape of “Murasila” followed by the ibid FIR. In their statements before the Court both these PWs have deposed that they have seen the deceased while being busy in heated debate/quarrel with the accused-party, therefore, testimonies of both these PWs relate to last-seen evidence and they were not the eyewitness of the murder of deceased.

7.Sole piece of evidence against respondent namely Jamal Nasir is his alleged voice identified and recognized by the complainant at the time when her deceased husband was called by the accused from the exterior area of their house. As per testimony Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

of PW-1 the accused was neither her close relative nor inhabitant of the same vicinity, then how she was able to identity his voice at first instance. The very testimony of PW-1, the complainant, is not convincing about the sole fact that it was in-fact accused namely Jamal Nasir who had called upon her husband on the fateful night or it was somebody else, therefore, learned trial Court has rightly discarded such weak piece of evidence qua acquittal of the respondents.

8.No doubt, voice identification is considered to be an admissible piece of evidence under the provisions of Qanun-e- Shahadat Order, 1984, however, it is characterized to be as weak, doubtful and suspect type of evidence. In context of the case in hand and as highlighted above, complainant being a house wife has no familiarity with the sound of a stranger i.e.

respondent namely Jamal Nasir, then her alleged claim qua recognition of voice of accused at first instance is not appealable to Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

sanity. This Court in its judgment rendered in case titled “Sahib Shah v/s State” in respect of admissibility of voice identification has observed that the alleged identification of appellant by complainant through his voice is doubtful and being a weak type of evidence, cannot be used for conviction of appellant [1 ]. In the case of “Ahmed Sher & another”, their Lordships of Federal Shariat Court have held that identification of an accused by voice through an identification test is a weak piece of evidence and should be supported by other evidence [2]. Same proposition of law was earlier affirmed and validated by this Court in case titled “State v/s Fazal Ahmad & another” in terms that identification by voice has always been held doubtful by superior Courts [3 ].

9.As a last resort, learned counsel for appellant/complainant also stressed hard “Sahib Zada v/s State” reported as 2024 P Cr. LJ 396.

“Ahmed Sher & another v/s State” reported as PLD 1995 Federal Shariat Court “State v/s Fazal Ahmad & another” reported as 1970 P Cr. LJ 633.

Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

on the point that during the course of trial, accused/respondents have earlier moved an application U/S 265-K Cr.P.C, which was dismissed by learned trial Court by dint of its order, albeit on merits, therefore, accused are debarred to file a second application under the emergent provisions of 265-K Cr.P.C. In this respect, suffice it to say, there is no specific bar in the Code which could prohibit an accused from filing second application U/S 265-K Cr.P.C, in eventuality when his/her first application had been dismissed on merits, provided that in the pending trial some major development had taken place, which may have accrued a fresh cause or reason for filing of second application. This issue had not been alien to jurisdiction of superior Courts. For instance, in the case of “State v/s Raja Abdul Rehman”, it was held by Hon’ble apex Court that there is no bar for an accused to file an application U/Ss 249-A or 265-K Cr.P.C at Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

any stage of the trial, provided facts & circumstances of the case so demanded [4].

10.Thus, conclusion of above

discussion is that charge against accused was groundless on the strength of materials gathered during the course of investigation.

Even if evidence of prosecution is recorded, still there was no probability of conviction of accused/respondents. Language of Section 265-K Cr. PC, plainly and clearly states that the Court may acquit an accused person “at any stage of the case”. Our jurisprudence on acquittal U/S 265-K Cr. PC is very rich. In case titled “Abbas Haider Naqvi & another”, it was held by Hon’ble apex Court that there is no absolute bar on the statutory power of trial court to entertain an application U/S 265-K, Cr.P.C [5]. Other relevant cases, which merit mentioning here are Abdul Ghani vs. State (2020 P Cr. L J 1094) and “State through Advocate General Sindh v/s Raja Abdul Rehman” reported as

2005 SCMR 1544.

“Abbas Haider Naqvi and another vs. Federation Of Pakistan and others” reported as PLD 2022 Supreme Court 562 Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din

Yasin Khan Baber vs. State (1995 P Cr. L J

11.Even otherwise, it is a settled law that “an acquitted accused earns double presumption of innocence” [6] . “An accused person, as a matter of right, is presumed to be innocent before trial, unless the charge is proved against him/her otherwise” [7]. 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 [8].

12.In view of what has been

discussed above, instant criminal appeal being bereft of any merits stands dismissed, in limine.

Announced Sd/- Dt. 08.10.2025 JUDGE

Sd/-

JUDGE

Sardaran Bibi Vs. The State and others” reported as 2024 SCMR Jehangir vs Amin Ullah & others” reported as 2010 SCMR 491.

“ State Vs. Ahmad Umar Sheikh and others” reported as 2021 SCMR Nawab (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Salah-ud-Din