Muhammad Riaz & another Vs The State & others

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Criminal Appeal No. 30-A/2026

JUDGMENT

Date of hearing: 17.03.2026

Appellants (Muhammad Riaz & another) By: Mr. Abdul Fayaz, Advocate

Respondents (The State & others) By: Mr. Shoaib Ali, Assistant Advocate General.

AURANGZEB, J.—Through the instant criminal appeal, the appellants, namely Muhammad Riaz and Shams-ur- Rehman, have assailed the judgment dated 29.01.2026 passed by the learned Sessions Judge, Kohistan Lower, in case arising out of FIR No.79 dated 02.04.2024, registered under Sections 302, 311, 109, and 34 PPC, read with Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013, at Police Station Dubair, District Kohistan Lower, whereby both the appellants were convicted under Sections 302(b), 311, and 34 PPC and sentenced to imprisonment for life as Ta’zir on two counts.

Appellant Muhammad Riaz was further convicted under Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013.

In addition thereto, each appellant was directed to pay compensation of Rs.500,000/- to the legal heirs of the deceased, and in default whereof, to further undergo simple imprisonment for six months. Benefit of Section 382-B Cr.P.C. was also extended to them.

2.Briefly stated, the prosecution case is that the complainant, namely Arbab Muhammad (PW-1), while present at his house, reported the occurrence to Muhammad Ilyas, ASHO/SI (PW-10), on 01.04.2024, which was reduced into writing in the shape of a Murasila (Ex:PW10/1) and was thereafter formalized into FIR (Ex:PW6/1). According to the report, Muhammad Afzal (since deceased), son of the complainant, had gone towards Kareen Ghando for grazing cattle and was walking ahead of his father when, at about 3:30 p.m, the present appellants, namely Riaz and Shamo, allegedly appeared armed with firearms and opened indiscriminate fire upon him with the intention to commit his murder. As a result thereof, Muhammad Afzal sustained multiple firearm injuries on different parts of his body and succumbed to the same at the spot. It was further alleged that upon hearing the firing, persons from the nearby locality gathered at the place of occurrence, whereafter the accused fled towards their house. The prosecution further alleged that thereafter the accused also committed the murder of Hussan Bibi (since deceased), wife of accused Muhammad Riaz, inside their house. Both occurrences were stated to have been committed on the pretext of so-called honour, as the accused allegedly suspected an illicit relationship between the deceased persons.

The matter was reported to the police at about 9:00 p.m,

whereas the formal FIR was recorded after midnight at 12:10 a.m. on 02.04.2024.

3.After arrest of the appellants and completion of investigation, challan was submitted before the Court of competent jurisdiction. The appellants were formally charged, to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as twelve witnesses. Upon closure of the prosecution evidence, statements of the appellants under Section 342 Cr.P.C. were recorded, wherein they denied the allegations in toto and professed innocence. They neither opted to appear as their own witnesses under Section 340 (2) Cr.P.C. nor produced any evidence in defence. After appraisal of the material brought on record, the learned trial Court found the appellants guilty and convicted and sentenced them in the manner noted above.

4.Learned counsel for the appellants and learned Assistant Advocate General for the State were heard at considerable length. Record has also been perused.

5.Perusal of the record reflects that the prosecution case rests primarily upon the ocular account furnished by the complainant. According to the prosecution, Muhammad Afzal had gone for grazing cattle and at about 3:30 p.m. the appellants, armed with firearms, appeared and opened indiscriminate fire upon him, resulting in his death at the spot. It is further alleged that

thereafter the appellants also committed the murder of Mst. Hussan Bibi inside their house on the pretext of honour. The occurrence was reported at about 9:00 p.m, while the FIR was formally recorded after midnight at 12:10 a.m. on 02.04.2024. Upon a detailed examination of the record, the following points arise for determination:—

Points for Determination

I. Whether the delay of more than five hours in lodging the FIR has been satisfactorily explained?

II. Whether the presence of the alleged eye- witnesses stands established from the circumstances of the case, or whether they are chance witnesses requiring independent corroboration?

III. Whether the medical evidence supports the ocular account?

IV. Whether the murder of deceased Mst. Hussan Bibi was committed inside the house of the appellants, and if so, whether the burden to prove the same lay upon the prosecution or the appellants?

V. Whether the prosecution has successfully proved the motive behind the occurrence?

VI. Whether the conviction and sentence awarded to the appellants are sustainable in law?

7.The record reveals that two distinct occurrences of murder allegedly took place at two different locations:

the first concerning deceased Muhammad Afzal at Kareen Ghando, and the second relating to deceased Mst. Hussan Bibi inside the house. Notwithstanding the seriousness of the allegations, the FIR was lodged at 12:10 a.m. on 02.04.2024, thereby showing a delay of

more than five hours from the time of the occurrence.

Such delay, in the absence of any plausible and satisfactory explanation, assumes significance and casts a serious shadow of doubt upon the prosecution story. In this regard, guidance may usefully be sought from the judgment of the Honourable Supreme Court of Pakistan in Amjad and another versus The State (2025 SCMR 1388), wherein it was held that:— “At the very outset, we note that there was a considerable delay of more than 31-1/2 hours in lodging of the FIR. It is also a matter of record, rather it is an admitted position on the part of the complainant, that the FIR was registered after due consultation with Ghulam Mustafa, Ali Gohar and the local police. From the deposition of Ali Hyder (PW-1), it is evident that the postmortem of the deceased was conducted before lodging of the FIR. He has admitted that after leaving the dead body at the spot he did not go to the Police Station for lodging of the FIR rather he went to the Nekmard Ghulam Mustafa and his uncle Ali Gohar to inform them about the incident. Even after picking the dead body from the spot he made no effort to lodge the FIR as again he went to the Hospital and had the postmortem conducted and, finally after completing the burial of the deceased, thereafter he went to the Police Station for lodging the FIR, causing a delay of 31-1/2 hours. The word FIR, stands for "First Information Report", which is to be lodged at the very initial stage of the incident so that the legal process may be put into motion. In the instant case however, the FIR was registered after the above-mentioned events i.e. informing Ghulam Mustafa and Ali Gohar so also

the co-villagers, taking them to the spot, taking the deceased's body to the Hospital, getting postmortem and medical checkup done and finally the burial of the deceased. It was only after all these episodes that the FIR was lodged after due consultation and preliminary investigation/enquiry of the Police of the spot, which, in our opinion, has put a major dent on the case of the complainant as well as that of the prosecution.”

Further reliance may be placed upon Khizar Hayat versus The State (2025 SCMR 1339), wherein it was held that:—

“The occurrence in this case had taken place during the night and although the prosecution had mentioned availability of torch with the prosecution witnesses at the spot yet admittedly no torch had been secured during the investigation of this case. Thus, the claim of the above alleged eye-witnesses regarding identification of culprits with graphic details of the incident appears to be a claim which can be accepted only with a lump of salt. Similarly, the occurrence which became the foundation stone of the case took place on 30.11.2009 at about 9:00 p.m. According to the record, the police station Haveli Karanga is situated at a distance of approximately 9 miles from the crime scene. However, the matter was brought to the notice of local police through the statement of Muhammad Ramzan (PW-10) recorded on 01.12.2009 at about 1:05 p.m. after a delay of about 14 hours without any justifiable explanation, thus, a possibility regarding deliberations before lodging of the FIR could not safely be ruled out of consideration.”

8.The prosecution, in order to substantiate its case, primarily relied upon the statement of the complainant, Arbab Muhammad (PW-1), who was projected as an eye-witness. In his examination-in-chief, he deposed that upon hearing the sound of firing, he proceeded towards the place of occurrence and allegedly saw accused Shams-ur-Rehman and Riaz moving towards their house. Upon advancing further, he found his son Muhammad Afzal lying on the ground in a pool of blood.

He further stated that he again heard firing from the house of the accused, whereafter people from the neighbourhood gathered, and the dead body of his son was shifted to his house on a cot. Thereafter, he came to know from the people present that Mst. Hussan Bibi, wife of accused Riaz, had also been murdered. He further stated that the police reached his house at about 9:00 or 10:00 p.m., inspected the dead body, and recorded his statement, which was reduced into writing.

9.However, a careful scrutiny of his cross- examination reveals material contradictions and serious infirmities, which substantially diminish his credibility. He candidly admitted that he was initially unwilling to lodge the report and that the same was recorded under compulsion by the police. He further conceded that at the time he first heard the firing, he was inside his house and that he reached the place of occurrence approximately five minutes thereafter. More importantly,

he unequivocally admitted that neither he nor any other person had actually seen the accused firing at his deceased son. He also acknowledged that the persons who accompanied the police to the spot, namely Mir Subhan and Muhammad Younas, had neither witnessed the occurrence nor seen the accused fleeing from the scene. He further admitted that he had no intention to prosecute the accused persons.

10.The witness further disclosed that the place of occurrence was a thoroughfare having bushes on both sides and that the distance between his house and that of the accused was merely a two-minute walk. He also admitted that he had not stated before the police that he was present with the deceased at the time of occurrence. These admissions render his claim of being an eye-witness highly doubtful and inconsistent with the natural course of events. It is a settled principle of law that where a witness claims to have witnessed the occurrence, his presence at the spot must be established through independent and corroborative evidence so as to inspire confidence in his testimony. In the present case, no such independent corroboration has been brought on record by the prosecution to establish the presence of PW-1 at the relevant time.

11.Furthermore, the prosecution had cited another alleged eye-witness, namely Hikmat, but he was ultimately given up and not produced before the Court,

thereby withholding material evidence without furnishing any plausible explanation. This omission further weakens the prosecution case and gives rise to an adverse inference against it. In these circumstances, the testimony of PW-1, being uncorroborated, inconsistent, and suffering from inherent improbabilities, cannot safely be relied upon to sustain the conviction of the appellants. Reliance may be placed on Abid Ali and 02 others versus The State (2011 SCMR 208), wherein it was held that:—

“19. We have thoroughly discussed the statements of two eye-witnesses claiming to be present at the scene of crime but they on their own admissions were chance witnesses and have admitted their enmity with the appellants. Both these witnesses could not reasonably explain their presence with the deceased Muhammad Azam rather their conduct runs against the natural behaviour of normal human, therefore, their testimonies appears to be unbelievable in the circumstances of the case.They are also belied by the site plan wherein blood was taken up from the ground and neither any cot having stained with blood was found at the spot by the Investigation Officer nor the same was produced before him.

20.The two courts below have held that P.W. Muhammad Javed is not dishonest witness. We could not agree with such findings of two Courts below on this issue because it has been admitted by this P.Ws. in cross-examination that his brother Ijaz was charged along with deceased Muhammad Azam for the murder of Muhammad Asif, therefore, he

will be on inimical terms with the accused/ appellants. Another aspect as we have considered is that he is a partisan witness because of his involvement in number of criminal cases wherein he was co-accused with deceased Muhammad Azam.

21.To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.

22.As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of the evidence. It is not that who is giving the evidence and making statement; what is relevant is what statement has been given. It is not the person but the statement of that person which is to be seen and adjudged.

23.We for the above reasons are firmed to believe that the two eye-witnesses who claimed to be present at the scene of crime were not present there and their testimonies are not believable.”

Further reliance may be placed on Nadeem alias Nanha alias Billa Sher versus The State (2010 SCMR 949), wherein it was held that:— “Complainant and other eyewitness were chance witnesses as they should not normally be present at the place of occurrence; it was difficult to rely upon statements of such witnesses being chance and interested witnesses---In order to convict accused for murder court must be satisfied first that the murder was committed then it must be satisfied that

accused had committed murder--- Question of sentence demanded utmost care on the part of court dealing with life and liberties of accused person--- Prosecution withheld evidence of an eyewitness and real son of deceased did not make any statement about motive-- No independent witness of locality, which was a Bazar, where incident took place, joined and the same had made prosecution case doubtful---Any genuine doubt arising out of circumstances of the case should be extended to accused as of right and not as concession--- Prosecution failed to prove case against accused beyond shadow of doubt.”

12.A careful and thorough examination of the record further reveals a significant infirmity in the prosecution case. It is evident that no postmortem examination of either deceased was conducted by a Medical Officer or a Lady Medical Officer. This omission is of considerable legal importance, as a postmortem report constitutes a vital piece of medical evidence for ascertaining the precise cause, manner, and probable time of death. In the absence of such medical examination, the prosecution has failed to establish through cogent and scientific evidence the actual cause of death, thereby creating a serious lacuna in its case and rendering the ocular account, if any, susceptible to grave doubt.

13.The material available on record further casts serious doubt upon the prosecution version. A perusal of the site plan (Ex:PW1/2), prepared by the Investigating Officer on 02.04.2024, reveals that no person had pointed out the place of occurrence at the

time of its preparation. This circumstance assumes significance when juxtaposed with the earlier site plan (Ex:PW1/1), which was admittedly prepared at the instance of the complainant. The inconsistency between the two site plans, particularly with regard to identification of the place of occurrence, reflects lack of coherence in the prosecution version and undermines the credibility of the investigation.

14.Another important aspect of the case is that the occurrence resulting in the death of deceased Mst.

Hussan Bibi is stated to have taken place within the precincts of the house of the appellants. In such circumstances, it is a settled principle of criminal jurisprudence that the burden squarely rests upon the prosecution to establish, through cogent, reliable, and confidence-inspiring evidence, the guilt of the accused beyond reasonable doubt. The mere fact that the occurrence allegedly took place inside the house of the appellants does not ipso facto shift the burden upon them to explain the incident, unless the prosecution first succeeds in discharging its initial onus by bringing sufficient incriminating material on record.

15.It is by now well settled that the presumption of innocence remains attached to an accused throughout the trial, and the prosecution cannot derive any benefit from the alleged place of occurrence unless it establishes a complete chain of evidence connecting

the accused with the commission of the offence. Any attempt to shift the burden upon the appellants, in the absence of such foundational proof, would be contrary to the settled canons of criminal law. In this regard, reliance may be placed upon Arshad Khan versus The State (2017 SCMR 564), wherein it was held that:— “It may be true that it has been held by this court in the cases of Arshad Mehmood v. The state (2005 SCMR 1524) and Seed Ahmad v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused’s wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this court in case of Abdul Majeed v The state (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all.”

Further reliance may be placed on Nazir Ahmad versus The State (2018 SCMR 787), wherein it was held that:—

“It has been argued by the learned Deputy Prosecutor-General, Punjab appearing for the State that the deceased in this case was a vulnerable dependent of the appellant and, thus, by virtue of the law declared by this Court in the cases of Saeed Ahmed v. The State (2015 SCMR 710) and Arshad Mehmood v. The State (2005 SCMR 1524) some part of the onus had shifted to the appellant to explain the circumstances in which his wife had died an unnatural death in his house during the fateful night which part of the onus had not been discharged by the appellant. We have attended to this aspect of the case with care and have found that when every other piece of

evidence relied upon by the prosecution has been found by us to be utterly unreliable then the appellant could not be convicted for the alleged murder simply on the basis of a supposition. The principle enunciated in the above mentioned cases of Saeed Ahmed v. The State (2015 SCMR 710) and Arshad Mehmood v. The State (2005 SCMR 1524) was explained further in the cases of Nasrullah alias Nasro v. The State (2017 SCMR 724) and Asad Khan v. The State (PLD 2017 SC 681) wherein it had been clarified that the above mentioned shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself is not reliable and where the prosecution fails to produce any believable evidence. It is trite that in all such cases the initial onus of proof always lies upon the prosecution and if the prosecution fails to adduce reliable evidence in support of its own case then the accused person cannot be convicted merely on the basis of lack of discharge of some part of the onus on him.”

16.Another significant infirmity in the prosecution case is that five empty cartridges of 7.62 bore were allegedly secured from the place of occurrence and were subsequently transmitted to the Forensic Science Laboratory along with a Kalashnikov purportedly recovered on the pointation of appellant Muhammad Riaz. However, the forensic report returned a negative result and failed to establish any nexus between the secured empties and the alleged weapon. This scientific evidence, instead of corroborating the prosecution version, renders it doubtful and undermines the credibility of the alleged recovery. Such a material discrepancy strikes at the root of the prosecution case

and fortifies the inference that the charge has not been proved beyond reasonable doubt.

17.The prosecution also attributed a motive to the occurrence by alleging the existence of an illicit relationship between both the deceased. However, this allegation remained a mere assertion and was not substantiated through any reliable or independent evidence. Not a single witness was produced to support or even suggest the existence of such a relationship.

Consequently, the alleged motive remained wholly unproved. It is by now well settled that where the ocular account is found to be unreliable and the circumstantial evidence does not inspire confidence, failure of the prosecution to establish motive further weakens its case. In such circumstances, where the direct evidence is doubtful and the alleged motive remains unestablished, the prosecution cannot be said to have proved its case beyond reasonable doubt, and the benefit thereof must necessarily accrue to the accused.

18.Apart from the foregoing infirmities, it is also borne out from the record that the legal heirs of the deceased had entered into a compromise with the appellants, thereby settling the dispute amicably.

However, the learned trial Court failed to advert to or accord due consideration to this material aspect of the case. Such omission assumes significance, particularly in circumstances where the compromise could have had

a bearing on the quantum of sentence or other consequential relief. Non-consideration of this relevant factor, therefore, reflects a material irregularity in the impugned judgment.

19.It is a well-settled principle of criminal jurisprudence that for extending the benefit of doubt to an accused, it is not necessary that the record should disclose multiple infirmities or a series of suspicious circumstances. Even a solitary circumstance, if it is of such a nature as to create a reasonable doubt in the mind of a prudent person regarding the guilt of the accused, is sufficient to entitle him to such benefit. The rule is grounded in the cardinal principle that the prosecution must prove its case beyond reasonable doubt, and any doubt, howsoever slight but reasonable, must necessarily operate in favour of the accused, resulting in acquittal. The august Supreme Court in Imtiaz Hussain Shah alias Tajjay and another versus The State and others (2025 SCMR 1110) has held that for extending benefit of doubt it is not necessary that there should be multiple circumstances; rather, a single circumstance creating reasonable doubt in a prudent mind is sufficient. The relevant paragraph is reproduced below:—

“On reappraisal of the evidence on record we have arrived at an irresistible conclusion that the prosecution has miserably failed to prove guilt of the appellants through cogent and confidence inspiring direct and circumstantial

evidence. The prosecution's evidence is riddled with doubts, benefit of which must be extended to the appellants not as a matter of grace or concession but as a matter of right. It is settled principle of law that for giving the benefit of the doubt it is not necessary that there should be multiple circumstances rather a single circumstance creating reasonable doubt in a prudent mind is sufficient for extending its benefit to an accused. Reliance is placed on the cases of "Muhammad Mansha v. The State" (2018 SCMR 772) and Najaf Ali Shah v. The State (2021

SCMR 736).”

20.So far as the conviction of appellant Muhammad Riaz under Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 is concerned, a careful appraisal of the record reveals that the alleged rifle is stated to have been recovered on his pointation from a cattle shed located in his village. However, it is manifest from the record that no independent person from the locality was associated with the recovery proceedings. The omission on the part of the prosecution to secure the presence of independent witnesses, despite their availability at the place of recovery, renders the recovery proceedings doubtful and casts a serious dent in the credibility of the prosecution case. Consequently, the alleged recovery, being unsupported by independent corroboration, cannot safely be relied upon for sustaining the conviction under the aforesaid provision.

21.It thus appears from the record that the prosecution, by suppressing material facts, presented a distorted picture of the occurrence, which is not only far

removed from the actual facts but has also brought its case under serious clouds of doubt. It is a cardinal principle of criminal law that in order to bring home the guilt of an accused, the prosecution must prove its case beyond reasonable doubt, and if any reasonable doubt arises, its benefit must go to the accused as of right.

This principle fully applies to the present case.

22.The learned trial Court, in our considered view, did not appreciate the evidence in its true perspective and fell into grave error in recording the convictions of the appellants. The impugned judgment, therefore, is not sustainable in law.

23.For what has been discussed above, this appeal is allowed. The appellants are acquitted of the charges framed against them. They shall be released forthwith, if not required in any other case.

These are the detailed reasons for our short order of the even date.

Announced:

17.03.2026 JUDGE

JUDGE

Hon’ble Mr. Justice Abdul Fayaz Hon’ble Mr. Justice Aurangzeb

Aftaf PS/*