Mushtaq Ali Vs The State

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Cr.A.No.439-P/2025

Mushtaq Ali ...............................Appellant Vs The State and another .. ...............Respondents Present: Mr. Shabbir Hussain Gigyani, Advocate, for the appellant.

Mr. Mushtaq Rahim, AAG, for the State.

Mian Arshad Jan, Advocate, for the respondent / complainant.

Date of hearing: 04.02.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Appellant namely, Mushtaq Ali son of Ziarat Gul has called in question the order/judgment of his conviction passed by the learned Additional Sessions Judge- VI, Nowshera dated 21.04.2025, vide which the appellant was convicted and sentenced as follows:- “The accused is hereby convicted under Section 302(b) PPC and sentenced to rigorous imprisonment for life. The convict shall also pay compensation of Rs. 700,000/- (Seven Hundred Thousand Rupees) to the legal heirs of the deceased, in

accordance with Section 544-A of the Cr.P.C. In the event of default in the payment of compensation, the convict shall undergo an additional Six (06) months of simple imprisonment. The said amount shall be recoverable as arrears of land revenue under Section 544-A (2) Cr.P.C. The benefit of Section 382-B Cr.P.C is extended to the convict, and the period of his detention already undergone during investigation and trial shall be counted towards his sentence. Warrant of committal be issued to the Jail Authorities concerned”.

2.After registration of the case, a full-fledged investigation was carried out and then challan against the accused was put in Court where formal charge was framed on 05.06.2024 and served upon him, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as ten (10) witnesses and thereafter statement of the accused was recorded under section 342 Cr.P.C. On conclusion of proceedings in trial, accused/appellant was convicted and sentenced vide the impugned order/judgment dated 21.04.2025 by the learned Additional Sessions Judge-VI, Nowshera, as stated hereinabove. The

appellant has now challenged the aforesaid order/judgment by filing the instant appeal before this Court.

3.Arguments heard and record perused.

4.It is the case of prosecution as set by the complainant namely, Ali Khan (PW-7) in the Murasila (Ex PA/1) which he lodged with the ASI namely, Mukhtiar Ali (PW-6) in the DHQ Hospital, Nowshera Cantt. to the effect that the deceased namely, Mst. Rubina and her husband namely, Mushtaq Ali (appellant herein) had a prolonged family domestic dispute and were having a strained relationship and on the date and time of the incident, the present accused-appellant namely, Mushtaq Ali opened fire on his daughter namely, Mst. Rubina resulting into her death. The motive behind the occurrence was stated to be their strained relationship and the incident was stated to be witnessed by the minor grandson namely, Abubakar son of Mushtaq Ali, aged approximately 06/07 years, which report was reduced into Murasila (Ex.PA/1) and later on duly thumb impressed by the complainant namely, Ali Khan (PW-7) and verified by one Noor

Muhammad and was sent to the Police Station for the registration of an FIR. The inquest report (Ex.PW 6/1) and injury sheet (Ex.PW 6/2) of the deceased namely, Mst. Rubina were duly prepared.

Consequently, the instant FIR was lodged.

5.In order to bring home the charge against the present appellant, the prosecution has relied on the statement of complainant namely, Ali Khan who appeared as PW-7 and minor Abubakar, aged about 06/07 years, who appeared as PW-5, therefore, this Court would now proceed to first analyze their evidence.

6.It is part of the record that the deceased namely, Mst. Rubina had earlier married to one Adalat Khan and after getting separation from the said Adalat Khan, she had married to the present appellant namely, Mushtaq Ali, however, it is also part of the record that when she had got separation from the present appellant, she was residing in a rented house where the instant occurrence has taken place. It is also an admitted fact that from the previous husband of the deceased namely, Adalat Khan, she had given birth to two sons namely, Hamza and Abu Bakar (PW-5), whereas

from the present appellant, she had given birth to two daughters namely, Haleema Bibi and Samina Bibi. It is also an admitted fact on record that after separation, the two minor daughters are living with the present appellant, whereas it is the case of prosecution that PW-5 namely, Abubakar who is son of Adalat Khan from the deceased namely, Mst. Rubina is residing with his mother at the house where the occurrence has taken place. It is also an admitted fact that as per the record, the crime house is situated at Mohallah Qamar Khel Dairy Katy Khel, whereas the present appellant as well as the ex-husband of the victim namely, Adalat Khan are residing in Village Pir Sabaq and thus Dairy Katy Khel and Pir Sabaq are two different villages / places and as such in the given facts and circumstances, now this Court would analyze the ocular account furnished by the prosecution to the effect that as to whether the same is sufficient to maintain the impugned conviction or not?.

7.As far the statement of complainant namely, Ali Khan who appeared as PW-7 is concerned, it is an admitted fact that he is not an eye witness of the

occurrence as he has stated that he was informed about the instant incident by his son namely, Said Rehman who was by then at Rawalpindi. He has also admitted that the dead body was shifted to the Hospital by the local police and it was thereafter when he lodged the instant report in DHQ Hospital, Nowshera, therefore, his evidence being not an eye-witness of the occurrence could not be sufficient to maintain the impugned conviction.

8.As far as the evidence of the sole eye- witness as produced by the prosecution namely, Abubakar (PW-5) is concerned, his statement too is not sufficient to maintain the impugned conviction as;

i. firstly that by then he was 06/07 years of age and when he appeared in the Court as PW-5, he has stated that his father namely, Mushtaq Ali, i.e. the present appellant has murdered his mother namely, Mst. Rubina in the house situated at Pir Sabaq. It may be clarified that Pir Sabaq is a distinct village from the area namely, Dairy Katy Khel where the instant incident has taken place;

ii. secondly that it is part of the record that the said Abubakar (PW-5) is not the son of appellant namely, Mushtaq Ali rather he is the son of one Adalat Khan i.e. the previous husband of the victim and it is part of the record that after separation of the deceased namely, Mst. Rubina from her ex-husband namely, Adalat Khan, the two sons namely, Hamza and Abubakar (PW-5) are residing with their father at Pir Sabaq;

iii. thirdly that even if this stance of the prosecution is admitted that PW-5 namely, Abubakar, the minor son was residing with his deceased mother namely, Mst. Rubina in the house where the incident has taken place, then his presence on the date and time of occurrence, has also not been established by the prosecution as when he (PW-5) appeared in the witness box, he has stated that he used to go to school at 07.30 a.m. and during the papers period, he used to come back at 11.30 a.m. and in case of no paper then he used to come at 2.00 p.m., whereas the instant incident has taken place

at 09.00 a.m., therefore, in either of the eventuality, the presence of PW-5 namely, Abubakar has not been established;

iv. fourthly that since the said PW-5 namely, Abubakar was 06/07 years of age, therefore, the element and factum that he has been tutored by the complainant party before recording of his statement is spelling out from the record as during the course of his cross examination, a specific question was put to him that as to whether you have come to the Court few days before, his reply was in affirmative by further explaining that he came alongwith his maternal grandfather (PW-7 namely, Ali Khan) to the Court who told him about the Judge, Court and Wakeel which hectic exercise by the complainant party strongly establish that the said witness has been tutored in considerable detail in a parrot like manner;

v. fifthly that though P.W-5 namely, Abubakar has stated that after the occurrence the landlord of the deceased namely, Shamos

Khan came to the crime house and after getting necessary information, the said Shamos Khan informed the local police, who came and shifted the dead body to the hospital where the instant report was lodged, however, the prosecution has neither produced the said Shamos Khan nor that person(s) of police force who had shifted the dead body from the spot to the hospital as scriber of the Murasila (Ex.PA/1) namely, Mukhtiar Ali, ASI (PW-

6)has stated that when he was in village Badrashi, he got information of the occurrence and then local S.H.O instructed him to go to the hospital instead of the spot and as such he thereafter rushed to the hospital where the instant report was lodged and thus prosecution has not brought on record an iota of evidence that as to who and as to how the dead body of the deceased was shifted from the spot to the hospital which aspect the case too casts a serious doubt on the stance of P.W-5

namely, Abubakar, qua the post-events of the occurrence; and

vi. sixthly that presence of PW-5 namely, Abubakar on the date & time and at the place of occurrence has also not been established as his maternal grandfather namely, Ali Khan (PW-7) has admitted that PW-5 namely, Abubakar and his other brother namely, Hamza are residing with their father namely, Adalat Khan at Pir Sabaq and it is also an admitted fact that the crime village namely, Mohallah Qamar Khel Dairy Katy Khel and Pir Sabaq are two different villages. Furthermore, this PW-5 namely, Abubakar was a school going boy and who as per his own

statement used to be in school from 7:30 a.m. to 2:00 p.m., whereas the time of occurrence is shown as 9:00 a.m.

therefore, in the given facts and circumstances, the evidence of the said sole PW, being of very minor age of 06/07 years, being unnatural witness and his presence at the relevant time being doubtful, therefore, the same could not be relied upon. It is

settled law that the prosecution is bound to prove the presence of the eyewitness and they have also to prove the mode and manner of the occurrence and thus even if the presence of the eyewitness is established but it is found that they have not been able to prove the mode and manner of the occurrence or they have suppressed the same or they have twisted the facts as happened at the time of occurrence then their statement could not be relied upon. In a case1, the Hon’ble Apex Court has held that all the circumstances highlighted above lead us to a definite conclusion that presence of eye-witnesses at the place of occurrence at the relevant time is not free from doubts and the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Similarly, in another case2 the Hon’ble Apex Court has observed the same view that all the circumstances highlighted above lead us to a definite conclusion that presence of eye-witnesses at the place of occurrence at the relevant time is not above board and prosecution has failed to Liaqat Ali and another v/s The State and others reported as 2021 SCMR 780 Khalid Mehmood and another v/s The State and others reported as 2021

SCMR 810,

prove its case against the petitioner beyond reasonable doubt.

9.It is also part of the record that the instant incident has taken place in the house of the deceased namely, Mst. Rubina where she was residing as tenant on rent as the said house was the ownership of one Shamos Khan, however, the prosecution has not produced the said Shamos Khan in order to establish the aforesaid factum of residence of the deceased in his house. The non- production of the said Shamos Khan (landlord of the deceased) gain more significance when it is seen that the sole minor eye-witness namely, Abubakar (PW-5) has stated in examination-in- chief that after the occurrence, the said Shamos Khan came to our house and who inquired about the reason behind firing and then he (Shamos Khan) also called to the local police and who then came to the spot and shifted the dead body to the Hospital, therefore, the said Shamos Khan was one of the most important witness of the prosecution, who could have produced a direct evidence of post events of death of the deceased but astonishingly he was not produced and thus this aspect of the

case too has caused a serious dent in the prosecution case.

10.Another damaging aspect of this case for the prosecution is that though it is the case of the prosecution as set by the complainant namely, Ali Khan, the father of the victim who has appeared as PW-7 that the appellant was having a strained relation with the deceased-wife, however, such factum of inimical relationship has not been established by the prosecution as it is part of the record that like the deceased namely, Mst. Rubina, the marriage of the present appellant with the deceased was his second and as such it is part of the record that due to pressure from his sons and other family member, the appellant had part ways with the deceased through a court process in a peaceful manner and after the separation, he has also taken the two minor daughters namely, Haleema Bibi and Samina Bibi with himself and who are admittedly residing with the appellant, therefore, in the given facts and circumstances, when the appellant had peacefully part ways with the deceased as he had another wife and is having grown up children from her and when he had

peacefully taken the two minor daughters with himself then it does not appeal to sanity that as to why he would opt to kill his divorced wife i.e. the deceased namely, Mst. Rubina. The aforesaid unproved motive as against the present appellant gain more significance when it is seen that before marriage with the appellant, the deceased had married to Adalat Khan and after getting separation from the said Adalat Khan, she had married to the present appellant then in such state of affairs, her ex-husband namely, Adalat Khan would be an aggrieved and annoyed person rather than the present appellant, however, the Investigating Officer has not even investigated the instant case on the said line, therefore, when the prosecution has not been able to prove the very motive then it has to suffer for the same. It may be reiterated that prosecution is not bound to set a motive for an offence, however, if it once set a motive then it has to prove the same or else the same would go in favour of the accused. The Supreme Court of Pakistan in a case3 has also held that it is now well established that if a Sarfraz and another vs The State (2023 SCMR 670)

specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence. Otherwise, the same would go in favour of the accused.

11.The record would further show that though it is the case of prosecution that it was all alone the present appellant who had made firing upon the victim, however, as per record, two empties were recovered from the scene of occurrence and a pistol was also shown recovered from the appellant, however, when the said empties alongwith the pistol were sent to the FSL, the report thereof would show that they were not fired from the said pistol, therefore, on this score too, the prosecution has not been able to prove its case beyond any shadow of doubt and thus on this score too, the prosecution has not been able to bring home charge against the appellant namely, Mushtaq Ali as its case is doubtful all around and thus the present appellant is entitled for its benefit.

12.It is settled since long that for giving benefit to an accused, it is not essential that there should be many grounds for the same, even a single doubt

is sufficient to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In a recent case4 the Supreme Court has held that it is a well settled principle of law that for the accused to be afforded the right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner. The Supreme Court of Pakistan in another case5, has held that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right.

The conviction must be based on unimpeachable;

trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond Saghir Ahmad vs The State and others (2023 SCMR 241) Bashir Muhammad Khan v. The State (2022 SCMR 986)

reasonable shadow of doubt. Similarly, in a case6 the Supreme Court has reiterated the same rational by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant.

It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. In another case7 the Supreme Court has held that it is settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of Khalid Mehmood alias Khaloo v. The State (2022 SCMR 1148) Kashif Ali alias Kalu v. The State and another (2022 SCMR 1515)

the accused. Reliance in this behalf can be made upon the following cases:-

i)Tariq Pervez v. The State (1995

SCMR 1345),

ii)Ghulam Qadir and 2 others v. The State (2008 SCMR 1221),

iii)Muhammad Akram v. The State

(2009 SCMR 230),

iv)Muhammad Zaman v. The State (2014 SCMR 749) and

v)Muhammad Mansha v The State”

(2018 SCMR 772).

13.For what has been discussed above, this Court is of the firm view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt, therefore, his conviction cannot be maintained. Resultantly, while extending him the benefit of the doubt, this appeal is allowed and the impugned order/judgment of conviction and sentence dated 21.04.2025 recorded by the learned trial Court is set aside and consequently the appellant is acquitted of the charges levelled against him. He be released forthwith from the Jail, if not required in any other case.

14.These are reasons for our short order of even date.

Announced 04.02.2026 Sd/-

JUDGE

Sd/-

JUDGE

(D.B) Hon’ble Mr. Justice Sahibzada Asadullah Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah