Murad Ali and another Vs The State and another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department) Criminal Appeal No. 184-P/2024.

Murad Ali and another Versus The State and another Present For Appellants. Mr. Shabbir Hussain Gigyani, Advocate.

The State/complainant Arbab Fakhar-e-Alam, AAG and Mr. Taufeeq Khan, Advocate, for the complainant.

Date of hearing 22.04.2026

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - This criminal appeal has been directed against the judgment dated 22.02.2024 passed by the learned Additional Sessions Judge-II, Takht Bhai, Mardan, whereby the accused-appellants, namely Murad Ali and Raza Khan, involved in FIR No. 761, dated 29.08.2020, registered under sections 302/324/34 r/w section 15 AA PPC at Police Station, Takht Bhai, Mardan, were convicted and sentenced under section 302 (b) PPC to suffer imprisonment for life as ta’zir on two counts. They were also directed to pay compensation amounting to Rs.500,000/- each under section 544-A Cr.P.C. to the legal heirs of the deceased, namely Habib ur Rehman and Yasir, and in default of payment thereof, to further undergo simple imprisonment for one year each. The accused-appellants were further convicted and sentenced under section 324 PPC to undergo rigorous imprisonment for three years each along with a fine of Rs.100,000/- each, payable to the complainant, and in default whereof, to further undergo simple imprisonment for three months each. However, the benefit of section 382-B Cr.P.C. was extended to them. Both the substantive sentences were ordered to run concurrently.

2.The prosecution case, as reflected from the record, is that on 29.08.2020, the complainant, namely Aziz ur Rehman, lodged a report with the local police at THQ Hospital, Takht Bhai, stating therein that he, along with his brother, namely Habib ur Rehman, and his cousin, namely Yasir Ali, was returning home on a motorcycle from Madday Baba, in the meanwhile, at about 7:15 p.m., two unknown persons riding another motorcycle, who, according to the complainant, could be identified if produced before him, overtook them and started racing with them. After covering some distance, the said unknown persons stopped them near the shop of Zar Gul and, after dismounting from their motorcycle, questioned them as to why they were racing with them. Upon this, an altercation took place between the parties, whereafter the said unknown persons took out their respective pistols and started firing at them, as a result thereof, Habib ur Rehman sustained firearm injuries and died at the spot, whereas the whereabouts of Yasir Ali remained unknown at that time. The complainant, however, remained unhurt. The motive behind the occurrence was stated to be an altercation arising out of a motorcycle race. The report of the complainant was reduced into writing by Abdur Rehman (PW-2) in the shape of Murasila Exh.PA/1, which was thumb- impressed by the complainant in token of its correctness, while Fazal Rehman also affixed his thumb impression thereon as a verifier. Consequently, the instant FIR (Exh.PA) was registered. Thereafter, the injury sheet and inquest report of the deceased were prepared by PW-2, and the dead body of the deceased was referred to the Medical Officer under the escort of Constable Shah Fahad for postmortem examination.

3.Subsequently, after registration of the case at 23:40 hours, the dead body of Yasir was also found near the place of occurrence. In this regard, the complainant lodged another report on 30.08.2020 at 00:10 hours vide Daily Diary Report

No. 09 dated 30.08.2020. Consequently, PW-2 prepared the injury sheet and inquest report of the dead body of Yasir, and the same was referred to the Medical Officer for postmortem examination under the escort of Constable Shah Fahad.

4.Muhammad Shafiq (PW-5) conducted the postmortem examination on the dead body of Habib ur Rehman and found a firearm entry wound measuring 1 x 1 cm on the center of the right eye. In his opinion, the cause of death was firearm injury resulting in severe damage to the vital organs, leading to cardiovascular collapse, while the probable time between injury and death was recorded as 10 to 20 minutes. Similarly, he also conducted the autopsy on the dead body of deceased Yasir and found two firearm entry wounds, one on the interior aspect of the right upper arm and the other on the right side of the chest, about 2 cm lateral to the right nipple. The probable time between injury and death, in the case of deceased Yasir, was recorded as 10 to 30 minutes.

5.Investigation of the case was entrusted to Sher Muhammad Khan, Inspector, who visited the place of occurrence and prepared the site plan Ex.PB on the basis of his own observations. During inspection of the spot, he recovered blood-stained earth from two different places with the help of cotton, sealed the same into separate parcels, and took them into possession vide recovery memo Ex.PW-7/1. He also secured three empties from the spot, sealed them into a parcel, and took the same into possession vide recovery memo Ex.PW- 7/2. He further took into possession a Honda 125 motorcycle left behind by the accused party at the spot, marked as Ex.P-9, vide recovery memo Ex.PW-4/1. Likewise, he took into possession the blood-stained garments of both the deceased vide recovery memos Ex.PW-1/1 and Ex.PW-1/2. On 31.08.2020, the Investigating Officer again visited the place of occurrence and made additions in the site plan at the pointation

of the complainant party. On 02.09.2020, he took into possession an empty shell produced before him by Wajid Ali vide recovery memo Ex.PW-11/1. On 04.09.2020, he took into possession another Honda 125 motorcycle produced by the brother of the complainant vide recovery memo Ex.PW-8/1. The accused/appellants were arrested in the case on 06.09.2020. On the following day, i.e., 07.09.2020, the complainant got his statement recorded under section 164 Cr.P.C., wherein he nominated the accused/appellants. During interrogation, the accused disclosed the name of the bargain/shop from where they had purchased the motorcycle, whereupon the Investigating Officer obtained the purchase receipt from the said bargain/shop, to the same vide recovery memo as Ex.PW-11/3. On 08.09.2020, the Investigating Officer recovered a pistol from the possession of accused Murad Ali and took the same into possession vide recovery memo Ex.PW- 1/1. He also prepared a pointation memo marked as Ex.PW- 11/4. Similarly, on the pointation of accused Raza Khan, a .30 bore pistol was recovered and taken into possession, vide recovery memo Ex.PW-1/2, while its sketch was prepared as Ex.PW-11/5. Since the recovered pistols were unlicensed, section 15-AA of the Arms Ordinance was also added to the case. On 14.09.2020, the Investigating Officer moved an application before the learned Judicial Magistrate for conducting an identification parade of the accused through the complainant, which was allowed. Consequently, on 16.09.2020, the identification parade of both the accused was conducted through the complainant, the proceedings whereof were exhibited as Ex.PW-9/1 and Ex.PW-9/2. The Investigating Officer also sent the blood-stained articles, along with the empties and recovered pistols, to the Forensic Science Laboratory vide applications Ex.PW-11/10 to Ex.PW-11/13, and the reports thereof were received as Ex.PK and Ex.PZ.

6.After completion of the investigation, the accused/appellants were sent to trial before the learned Additional Sessions judge-II, Takht Bai, who, after complying with provisions of section 265-C Cr.P.C, framed charges to which they pleaded not guilty and claimed trial. After commencement of the trial, statements of the prosecution witnesses were recorded. Upon the closure of the evidence of the prosecution, the evidence and the incriminating circumstances which emerged during prosecution evidence were put to the accused as provided under section 342 Cr.P.C, wherein they denied the allegations in toto. The learned trial court, after conclusion of the trial, vide judgment 02.06.2022; the learned trial court convicted and sentenced the appellants, however, they preferred Criminal Appeal No.526-P/2022, while the complainant filed Criminal Revision No.183-P/2022 seeking enhancement of sentence before this court, consequently, the appeal was accepted and the case was remanded to the learned trial Court with directions to re-write the judgment after affording an opportunity of hearing to the parties. After remand of the case, the learned trial court, after hearing the parties, passed the impugned judgment whereby the accused/appellants were convicted and sentenced referred to above. Now the accused/appellants have challenged the legality and validity of their conviction and sentence by filing the instant criminal appeal.

7.Learned counsel for the appellants, during the course of arguments, contended that the complainant was not present at the place of occurrence at the relevant time and was, later on, procured by the prosecution. According to the learned counsel, the occurrence had not taken place in the manner alleged by the prosecution. He further contended that there are not only material contradictions in the testimonies of the prosecution witnesses, but there also exist serious loopholes in the process

of the identification parade as well as in the recovery of the pistols allegedly recovered from the accused/appellants. Therefore, according to him, the prosecution has failed to prove its case against the accused/appellants beyond any reasonable doubt. He argued that the findings recorded by the learned trial Court are the result of misreading and non- appreciation of the evidence available on record; thus, the accused/appellants are entitled to the benefit of doubt and consequent acquittal of the charge.

8.Conversely, learned AAG as well as learned counsel for the complainant contended that the complainant, being an eyewitness of the occurrence, had furnished straightforward, confidence-inspiring, and trustworthy evidence, which was duly corroborated by the circumstantial evidence available on record. They, therefore, fully supported the impugned judgment and the findings recorded by the learned trial Court.

9.Arguments heard and record perused.

10.It appears from the record that the occurrence took place on 29.08.2020 at about 7:15 p.m., whereas the report was lodged on the same day at 8:20 p.m. Aziz ur Rehman (PW-10), claiming himself to be the eyewitness of the occurrence, set the law into motion. The complainant, in his initial report, stated that on the day of occurrence, he along with both the deceased was returning home on a motorcycle when, at the relevant time, two unknown accused persons riding another motorcycle overtook them and started racing with them. After covering some distance, the accused stopped their motorcycle and, during the course of an altercation, started firing at the complainant party, as a result which, his brother, Habib ur Rehman, sustained firearm injuries and died at the spot, whereas the whereabouts of his cousin, Yasir, remained unknown because, due to the firing, the complainant party started running from the place of occurrence. According to the

version furnished in the report, an altercation had taken place between the accused and the complainant party prior to the occurrence over the overtaking of motorcycles. However, despite such altercation and sufficient opportunity of observation, the complainant did not disclose in the FIR any features, description, age, or other identifying particulars of the accused persons. This aspect of the matter creates doubt regarding the presence of the complainant at the place of occurrence at the relevant time. Had he actually been present there, he would naturally have mentioned at least some identifying features of the accused, particularly when the parties had exchanged words before the occurrence and the incident had taken place in the evening hours when visibility was not completely impaired. Ref: Kamal Din alias Kamala vs. The State (2018 SCMR 577).

11.Another damaging aspect of the prosecution case is that, according to the arrest cards, the accused/appellants were arrested on 06.09.2020, after eight days of the occurrence and on the following day, i.e., 07.09.2020, the complainant got his statement recorded under section 164 Cr.P.C., wherein he nominated the accused/appellants; however, he failed to disclose the source of information through which he came to know about their involvement in the commission of the offence. Also, there are material contradictions in the testimonies of the prosecution witnesses. According to the contents of the FIR, the report was recorded at 8:20 p.m., at that time the dead body of deceased Yasir was not recovered. The complainant (PW-10), during cross-examination, stated that the dead body of Yasir was found at about 11:30 p.m and in this respect another report was lodged, however, this statement of the complainant and contents of daily diary No. 09, were belied by Abdur Rehman (PW-2), who stated in his cross-examination that when he reached the hospital, both the dead bodies were lying in the casualty ward

and the relatives and co-villagers of the deceased were present there. He further stated that after sending the Murasila to the police station, he prepared the injury sheets and inquest reports of both the deceased which consumed 15 to 20 minutes and after preparation of the said documents of both the deceased he handed over the dead bodies with the said documents to the doctor. Moreover, the complainant, during cross-examination, stated that the dead bodies of his brother and cousin Yasir were shifted to the hospital by Rescue 1122. He further stated that the officials to whom he reported the occurrence were not in uniform and were wearing plain clothes, while PW-2, in his examination-in-chief, stated that he was on routine patrol duty when he received information regarding the occurrence and, thereafter, proceeded to THQ Hospital, Takht Bhai, thereby indicating that he was in official duty uniform. Likewise, Sher Muhammad Khan, th Investigating Officer (PW-11), during his cross-examination, stated that he received a copy of the FIR at 08:47 p.m. and reached the place of occurrence at 09:10 p.m. However, his statement stands in sharp contradiction to that of Shah Jehan (PW-7), who, being a marginal witness to recovery memos Ex.PW-7/1 and Ex.PW-7/2, also claimed to have witnessed the recovery of blood-stained earth and three empty shells allegedly effected by the I.O (PW-11) at the spot. The said witness (PW-7), in his cross-examination, stated that he was informed about the occurrence by Fazal Rehman and reached the place of occurrence at about 7:00/7:30 p.m., i.e. prior to the registration of the FIR. He further deposed that he remained at the spot for about 10 to 15 minutes and left at about 7:30/7:45 p.m., whereafter he proceeded to the hospital and reached there at about 8:00 p.m. Thus, the versions of PW-11 and PW- 7 are not reconcilable with each other as the FIR was admittedly chalked at 08:50 p.m., whereas PW-11 claims to have received its copy at 08:47 p.m., which is ex facie improbable. Also, PW-7

states that he had already left the place of occurrence much earlier, i.e. at 7:30/7:45 p.m., yet the recovery proceedings are allegedly shown to have been conducted in his presence by the Investigating Officer at the spot. These material inconsistencies render the prosecution version doubtful with regard to the timing of the occurrence, arrival of the Investigating Officer, and the genuineness of the alleged recoveries. In view of the above- mentioned glaring contradictions and inconsistencies, we are of the considered opinion that the presence of the complainant at the spot, at the relevant time, is doubtful as the entire investigation appears to have been conducted by the Investigating Officer (PW-11) prior to the formal registration of the case.

12.So far as the remaining incriminating pieces of evidence against the appellants, in the shape of identification parade, bargain receipt of the motorcycle, recovery of pistols, recovery of 30-bore empties from the spot, and the matching F.S.L. report (Ex.PZ), are concerned, the same are also of no help to the prosecution. The proceedings of an identification parade are not substantive pieces of evidence; rather, they serve only as corroborative evidence in support of the statement made by a witness during trial. In the instant case, as is evident from the record, the appellants were neither previously known to the complainant nor were their physical descriptions or distinguishing features mentioned in the FIR. The august Supreme Court has laid down guidelines regarding identification parades in the case reported as PLD 2019 Supreme Court 488, and also settled in the case of Sabir Ali alias Fauji v. The State (2011 SCMR 563) that an identification parade loses its evidentiary value where the description or identifying features of the accused are not mentioned in the FIR. In such circumstances, the benefit of doubt is to be extended to the accused persons. The said proposition was

further reiterated in Kamal Din alias Kamala v. The State (2018 SCMR 577). Moreover, the appellants were arrested on 06.09.2020 and were produced before the learned Judicial Magistrate on 07.09.2020. On the very same day, the learned Magistrate also recorded the statement of the complainant under Section 164 Cr.P.C. Therefore, it cannot be ruled out that the complainant had the opportunity to see the accused/appellants prior to the holding of the identification parade, particularly when there is nothing available on the record to show that the police had adopted the necessary precautionary measures to conceal the identity of the appellants and to ensure that they were not exposed to the complainant before the identification parade.

13.Likewise, the appellants were arrested on 06.09.2020, while the identification parade was conducted on 16.09.2020, after an unexplained delay of about ten days from their formal arrest. Such delay casts serious doubt upon the fairness and reliability of the identification proceedings. In the case The State through Advocate General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1), the august Supreme Court held that where an identification test is held after ten days, the same becomes doubtful and the evidence flowing therefrom is assailable and unworthy of reliance. Furthermore, the complainant, as evident from the identification parade report, merely identified the appellants without attributing to them the specific roles allegedly played during the occurrence. It is also well settled that where accused persons are picked out in an identification parade without specifying the roles played by them in the commission of the offence, such identification suffers from inherent illegality and infirmity, rendering it wholly unreliable and devoid of evidentiary value. Reliance in this regard may be placed upon Mehmood Ahmed and 3 others v.

The State (1995 SCMR 127) and “Muhammad Ramzan and another vs. The State” [2025 SCMR 1742).

14.Though, during the investigation of the case, a Honda motorcycle was taken into possession vide recovery memo Ex.PW-4/1, allegedly left behind by the accused/appellants after the commission of the offence, and in this regard a bargain receipt Ex.PW-11/3 was also collected, yet the said receipt is merely a photocopy. According to the statement of the Investigating Officer, the same was produced by one Ibrar; however, the said person was not produced by the prosecution before the Court. Thus, the prosecution withheld the best available evidence. It is a settled principle of law that where the best piece of evidence is available with a party, but the said party fails to produce the same before the Court, an adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984, may be drawn to the effect that, had such evidence been produced, it would have gone against the said party. Such a presumption can fairly be drawn in the present case.

15.So far as the recovery of the pistols and their positive matching report with the empties secured from the place of occurrence is concerned, though according to the prosecution version one pistol was recovered from the possession of accused Murad Ali, yet the record reveals that he was arrested on 06.09.2020, whereas the recovery memo was prepared on 08.09.2020, i.e., after a delay of two days. No plausible explanation whatsoever has been furnished by the prosecution for such an inordinate delay. It is a settled principle of law that where any discrepancy appears in the prosecution evidence, or where the same requires clarification or explanation, the prosecution is bound to explain and clarify such discrepancy; failing which, the benefit thereof must go to the accused. Ref: Yar Muhammad vs. the State (1992 SCMR 96). Likewise, the I.O (PW-11) in cross examination stated that he had not

recovered pistol from accused Murad personally rather the same was taken into possession from Moharrir of the police station and he admitted that the said pistol was not recovered by the Moharrir. He further admitted that the said pistol was not in sealed condition. The marginal witness, namely, Ziyarat Gul (APW-1) stated that one 30-bore pistol was recovered from the personal possession of accused Murad Ali, while another 30- bore pistol was recovered from the dwelling house of Raza Khan. However, in his earlier statement recorded as PW-1 on 23.02.2022, this fact was not mentioned. In cross-examination, he stated that the said pistol was produced by Noor Muhammad, SHO, before the Investigating Officer in the presence of accused Murad Ali, and that the said recovery proceedings were conducted inside the SHO’s office. With regard to the second pistol, he stated in cross-examination that the same was recovered from the dwelling house of accused Raza Khan; however, at the relevant time no lady constable was accompanying the raiding party. He further stated that two children were present at the time of recovery and that the rooms of the house were opened. Although, three empties were sent to the FSL vide application Ex.PW-11/10 on 29.08.2020 and the same were dispatched on 02.09.2020, whereas one empty, though shown to have been sent to the FSL, but neither any receipt nor any date is mentioned on application Ex.PW-11/12. The pistols were allegedly sent on 08.09.2020 and, as per FSL report Ex.PZ, were received on 10.09.2020. Further the safe custody of the empties is also doubtful as the I.O stated the empties were lying with Moharrir from 02.09.2020 till 10.09.2020. He further stated that there is no receipt rahdari for sending empties and pistols to FSL on case file nor he recorded statement of the Moharirr regarding sending of these items to the FSL. Even otherwise, it is unsafe to rely upon recovery evidence, which is essentially a corroborative piece of evidence

and becomes relevant only when the primary ocular account inspires confidence, as held by the august Supreme Court in Nasir Javaid and another v. The State (2016 SCMR 1144), Muhammad Nawaz and others v. The State (2016 SCMR 267), and Hayatullah v. The State (2018 SCMR 2092).

16.No doubt, as per medical evidence, both the deceased died due to firearm injuries; however, medical evidence by itself, in the absence of any direct or reliable circumstantial evidence, cannot connect the accused with the commission of the crime. It is well-settled that medical evidence neither pinpoints the accused nor establishes their identity and, at the most, can indicate the seat of injuries, duration, probable kind of weapon used, and cause of death, etc. Thus, it cannot be treated as substantive or corroborative evidence linking the accused with the occurrence; rather, it is only a supporting piece of evidence to the limited extent of confirming the nature of injuries and related medical aspects. Reference may be made to Muhammad Mansha v. The State (2018 SCMR 772).

17.The cumulative effect of what has been discussed above is that although the complainant claimed himself to be an eyewitness of the occurrence, yet in his very first version i.e. the FIR, he had attributed the incident to unknown assailants. Moreover, in view of material contradictions appearing in the testimony of the prosecution witnesses, the same does not inspire confidence so as to sustain the convictions of the appellants, particularly when the identification parade, being a pivotal piece of evidence in the present case, has not been proved in accordance with law. It is a well-settled principle of criminal jurisprudence that the prosecution case is not required to be proved to the hilt by removing all possible doubts; rather, the existence of a single reasonable doubt arising from the prosecution evidence itself, which creates hesitation in the judicial mind, is sufficient to extend the benefit thereof to the

accused. Reference in this regard may be made to the case Muhammad Akram v. The State (2009 SCMR 230), wherein it has been held that if a single circumstance creates reasonable doubt regarding the guilt of the accused, the same is sufficient for their acquittal, as of right and not as a matter of concession and which proposition has also been reiterated in the cases Muhammad Zaman vs the State 2014 SCMR 749 and the State vs Abdul Qadir (2024 SCMR 1146).

18.Accordingly, for the reasons discussed hereinabove, the prosecution has failed to prove its case against the accused/appellants beyond reasonable doubt, therefore, the instant criminal appeal is allowed, consequently, the impugned judgment of the learned trial Court, whereby the appellants were convicted and sentenced, is set aside, resultantly, the appellants Murad Ali and Raza Khan are acquitted of the charges levelled against them. They are directed to be released forthwith, if not required in any other case.

These are the reasons of our short orders of even date. Announced on 22.04.2026 Released on 11.05.2026.

JUDGE

JUDGE

(DB)Hon’ble Mr. Justice Muhammad Naeem Anwar & Hon’ble Mr. Justice Wiqar Ahmad.