Hussain Gul Vs The State

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) J. Cr.A No. 327-M/2025 Hussain Gul son of Lajbar (Appellant) Versus State through A.A.G.

(Respondent)

Present:- Muhammad Ikram Khan, ASC, for appellant/ convict.

Mr. Naeem Khan, Astt: A.G, for State, along with the complainant/brother namely Malezar, who did not want to engage a counsel of his choice and would rely on the arguments of learned State counsel.

Dates of hearing: 01.4.2026

JUDGMENT

SALAH-UD-DIN, J.- Appellant namely Hussain Gul has called in question the order/judgment of his conviction and sentence dated 20.10.2025, passed by the learned Additional Sessions Judge/I.Z.Q, Khwaza Khela, Swat, rendered in case FIR No. 122 dated 11.3.2022, registered U/S 302 PPC at P.S Fatehpur, District Swat, whereby upon conclusion of a full-fledged trial bearing No. 11/7 of 2022, he was convicted and sentenced as follows: -

19.In the backdrop of above discussion, it is held that prosecution has proved the charge against the accused beyond shadow of doubt on strength of confidence inspiring evidence; therefore, it is held that accused has intentionally hit his wife Mst. Naseema (deceased) with blow of axe on apprehension Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

that her photos had gone viral on social media and committed her murder on pretext of honor; therefore, I convict Hussain Gul son of Lajbar under sections 302 read with section 311 PPC and sentence him to undergo rigorous imprisonment for life under section 302 (b) PPC for brutal murder of Mst. Naseema. He is further sentenced to pay compensation of Rs. 500,000/- (five lac) to the legal heirs of deceased. In case of default of payment of the compensation, the convict shall under simple imprisonment for a term of six (06) months.

20.Benefit of section 382-B CrPC is extended to convict. The amount of compensation shall be recoverable as arrears of land revenue from the person and estate of the convict, which will be paid to legal heirs of the deceased as per their legal and Shari shares.

2.Arguments of learned counsel for appellant, as well as learned Astt: A.G for State were heard and requestioned record gone through with their valuable assistance.

3.According to the prosecution case, the complainant, namely Malezar, who is the brother of the deceased, Mst. Nasima, reported the occurrence to the local police at the Casualty Ward of Khwaza Khela Hospital. He stated that on the fateful day he was present in his house when, upon hearing the hue and cry of women and children, he came outside and saw his brother-in-law, namely Hussain Gul (the present appellant), running away with a bag slung over his shoulder. The people of the locality simultaneously raised cries that Hussain Gul had Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

murdered his wife and was fleeing from the scene.

Thereupon, the complainant apprehended the appellant and immediately entered the house of his sister, where he found her lying dead in a pool of blood. An axe, allegedly used in the commission of the offence, was also found lying near the dead body. The injured was immediately shifted to the hospital for medical treatment; however, she succumbed to her injuries. Meanwhile, the appellant, along with the weapon of offence, was handed over to the police for necessary legal action. The complainant further stated that the occurrence might have been witnessed by some persons present in the vicinity. The motive behind the occurrence was disclosed to be the appellant's suspicion arising from the publication and circulation of photographs of the deceased on social media through a mobile phone.

On the basis of the statement of the complainant, a Murasila (Ex. PA/1) was prepared, which culminated in the registration of the instant FIR (Ex.

PA) against the appellant, who is the husband of the deceased, at the police station concerned.

Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

4.Without any exaggeration, it is an admitted fact on both ends that we have a single accused in our sight i.e. the present appellant namely Hussain Gul, who has specifically been charged for the unnatural death of his own wife Mst. Nasima, in the background of shocking and unbelievable motive, which was stated to be that some photographs of the deceased lady got viral on social media.

5.No doubt, subject occurrence is unseen and un-witnessed event and till so far nobody has come forward as an eyewitness of the occurrence, however, since the alleged occurrence of murder of the deceased lady has taken place inside the premises of house of the appellant, therefore, under Article 122 of Qanun-e-Shahadat Order, 1984, it was for him to have come forward with a reasonable explanation about the death of his wife, who was supposed to be a vulnerable member of the society.

Admittedly, the deceased has met an unnatural death in the house of appellant/husband, but he had failed to offer any plausible explanation regarding same.

He has not even made any effort to explain the Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

situation during the course of investigation or trial in the instant case. Prosecution has been able to discharge the initial burden and shifting of onus to the appellant for explaining the circumstances surrounded unnatural death of the deceased and his failure in said respect justifies raising of a presumption against him under Article 122 of Qanun-e-Shahadat Order, 1984. Said Article being relevant for the present controversy, is reproduced hereunder for ready reference:-

122.Burden of proving fact especially within knowledge: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him Illustrations;

(a)When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b)A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

The Hon’ble apex Court in its recent

judgment rendered in the case of Waris Masih v/s State, rendered in Jail Petition No. 787 of 2018 decided on 21.01.2026, in respect of applicability of Article 122 of Qanun-e-Shahadat Order, 1984, had expounded the following proposition of law, more particularly, when an offence of murder of a wife has Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

allegedly been committed by a husband/accused inside the premises of his own house:-

“5. In instances of domestic violence, particularly in the event of homicidal death of a wife in the home of her husband, the latter is significantly responsible for providing a satisfactory explanation of the circumstances that led to the tragedy within the scope of Article 122 of the Qanun-e-Shahadat Order, 1984 (“the Order”). The conduct of an accused before, during and after a crime is also relevant under Article 22 of the Order. In the same vein, Article 129 of the Order authorizes the Court to infer adverse inferences from failure of party to submit evidence that it is capable of submitting. It is stated that the Court may assume that evidence that could be produced but is not would be unfavorable to the individual who withholds it if it were produced. The principle concerning facts peculiarly within knowledge of accused is not unique to our jurisdiction rather it is followed universally. As-per well recognized legal encyclopedia of American law i.e. Corpus Juris Secundum, § 571, Volume 224A, the accused has the burden of proof as to a negative averment in the indictment, or a fact relied on as justification or excuse, where the subject matter thereof lies peculiarly within his knowledge. Similarly, section 106 of the Indian Evidence Act, 1872 contains similar provisions.

6.We are conscious of the settled principle of criminal jurisprudence 6. that the burden of proving the commission of an offence rests squarely upon the prosecution, which must establish the guilt of the accused beyond reasonable doubt. In this regard Article 117 of the Order embodies the settled rule. Consequently, in cases of homicide, it is the sole responsibility of the prosecution to prove not only that a murder has been committed but also who committed the said offence, through legally admissible and credible evidence. Where the prosecution fails to discharge this burden, the benefit of such doubt must, as a matter of right, be extended to the accused being a cornerstone of criminal justice and a fundamental safeguard against wrongful conviction.

7.It is worth mentioning that where a wife is found dead inside the 7. matrimonial home, the first and foundational question for determination is the nature of the death, namely, whether it was natural or unnatural. Once the prosecution succeeds in establishing that the death was unnatural, the next question is whether the death was the result of suicide or homicide. Upon a finding that the death was homicide in nature, the focus of investigation necessarily turns to the circumstances surrounding the occurrence, particularly the place of occurrence. At this juncture, it becomes necessary to distinguish between the concepts of burden of proof and Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

onus of proof, which though related, operate in distinct legal spheres. The burden of proof refers to the obligation to establish the entire case and the guilt of the accused beyond reasonable doubt, a burden which, in criminal proceedings, always rests upon the prosecution and never shifts. The onus of proof, on the other hand, pertains to the responsibility of proving a particular fact or issue, which may, depending upon the circumstances of the case, shift during the course of trial.”

Further ahead, in the ibid judgment, it

was also held by their Lordships with a high degree of confidence that in eventuality when a death of wife occurs in the residential premises of an accused person, then he was duty-bound to offer some explanation about the injuries or other form of violence sustained by a deceased/wife. Relevant part of observations of august Court is reproduced hereunder for ready reference:-

10.In the event of a homicidal death of a wife within the residence, and the victim was the accused’s wife who resided with him, the accused was obligated to provide an explanation for the injuries that the deceased sustained while residing in the same domicile house with him, as the deceased was discovered with multiple injuries and the cause of death was physical assault. The legal repercussions of this omission served as an additional link in the chain of circumstances in the absence of such an explanation.

11.The rationale for treating the husband as a primary suspect in cases where a wife suffers a homicidal death within the matrimonial home is not only rooted in presumption of guilt, but also in the social, legal and moral position traditionally ascribed to the cement within the family unit. The family has long been recognized across civilization and legal systems as the basic unit of society, and within this unit, the husband has historically been regarded as the head, manager and protector of the household. Classical legal and moral traditions, both religious and secular, have consistently placed upon the male head of the family a heightened duty of care, supervision, and protection towards his spouse and Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

dependents. The Islamic jurisprudence articulates this responsibility with particular clarity. Verse 34 of Surah An-Nisa of the Holy Qur’an states that, “Men are caretakers of women.” The term qawwam in Arabic denotes one who bears responsibility, manages affairs and ensures protection and maintenance. In this sense, the husband is not merely a spouse, but a guardian of the family structure, entrusted with safeguarding its member.

Likewise, the Hon’ble Supreme Court

of Pakistan in its earlier judgment, delivered in the case of Raja Khurram Ali has held that Article 122 came into play only when the prosecution had discharged its legal burden to prove guilt of an accused by producing sufficient evidence, except the facts, which were especially in the knowledge of nominated accused, leading to inescapable conclusion that the offence was committed by him.

Thereafter, evidential burden was upon the accused to produce enough evidence to create doubt in case of the prosecution [1]. Similarly, in the case of Muhammad Hanif Abbasi, same ratio-decidendi was earlier followed by Hon’ble apex Cour in terms that the Article 122 of Qanun-e-Shahadat, 1984, envisages that if a particular fact was especially within the knowledge of any person the burden of “Raja Khurram Ali & 02 other v/s TAYYABA BIBI and another” reported as PLD 2020 S.C Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

proving that fact was upon him [2]. Said proposition of law was further clarified by Hon’ble apex Court in its celebrated verdict, rendered in the case of Saeed Ahmad to the effect that with regard to vulnerable members of society, such as children, women and infirm, who were living with the accused or were last seen in his company the accused ought to offer some explanation of what happened to them.

If instead he remains silent or offers a false explanation he casts a shadow upon himself. Article 122 of Qanun-e-Shahadat Order too stipulates that if a particular fact is especially within the knowledge of any person the burden of proving that fact is upon him [3]. A similar view has also been expressed by Hon’ble apex Court in case titled “Abdul Majeed v/s State” reported as 2011 SCMR 941.

6.In context of the case in hand, it was the complainant namely Malezar who was examined in Court as PW-1. In his examination-in-chief, he almost reiterated the same facts as was part & parcel of his initial report in respect of apprehending of the “Muhammad Hanif Abbasi v/s Jehangir Khan Tareen & others” reported as PLD 2018 S.C “Saeed Ahmad v/s State” reported as 2015 SCMR 710.

Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

appellant near the crime venue, along with the alleged weapon of the offence i.e. the axe. In his cross-examination, he fairly conceded this fact that he is not an eyewitness of the occurrence, however, his familiarity with the appellant in no way could be doubted, nor the motive so alleged by him, could be viewed with a suspicion. The complainant's testimony unequivocally establishes that the deceased was assaulted by the appellant with an axe inside the house. According to the complainant, upon hearing the commotion of women and children, he immediately rushed out of his house and saw the appellant running away from the scene. He succeeded in apprehending the appellant shortly thereafter. The testimony of the complainant, when examined in-juxtaposition with the site plan, fully corroborates his ocular account. This close proximity lends substantial assurance to the prosecution's version that the appellant was apprehended immediately after the commission of the offence while attempting to flee from the place of occurrence. The prosecution case further reveals that the appellant had remained abroad for the preceding Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

three to four years and had returned to his native village on the very day of the occurrence. This circumstance assumes considerable significance in view of the judicial confession made by the appellant, which will be discussed later on, wherein he disclosed that, while residing abroad, he had contacted the deceased over the telephone and confronted her regarding the allegation that her photographs had been circulated on social media.

The confessional statement is free from any procedural irregularity or legal infirmity affecting its admissibility or evidentiary value. The contents of the confession further demonstrate that, immediately after returning home, the appellant sent his children to the house of his relatives, initiated an altercation with the deceased over the alleged motive, and thereafter committed her murder with an axe. These admitted facts unmistakably indicate that the appellant's return from abroad was neither casual nor spontaneous but was preceded by deliberation and a preconceived intention to eliminate the deceased.

The sequence of events, therefore, unmistakably points towards premeditation rather than a sudden or Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

impulsive act. The testimony of Muhammad Dawood (PW-5) furnishes further corroboration to the prosecution case. He deposed that, about ten to fifteen days prior to the subject occurrence, the appellant had contacted him from abroad and informed him that the photographs of the deceased had allegedly gone viral on social media. The appellant requested PW-5 to verify the said information. This evidence substantially reinforces the prosecution's motive and clearly indicates that the appellant had conceived the intention to commit the offence even before his return to the motherland Pakistan. The fact that he was apprehended while attempting to flee from the scene with a bag slung over his shoulder constitutes an additional incriminating circumstance, lending further assurance to the prosecution case.

7.The medical evidence also lends full corroboration to the prosecution case. Dr. Palwasha (PW-10), who conducted the post-mortem examination of the deceased, deposed in accordance with her post-mortem report (Ex. PW-10/1) that the deceased had sustained grievous injuries involving Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

the sternocleidomastoid muscle and the internal carotid artery, besides a fracture of the cervical vertebra. According to the medical opinion, the probable interval between the infliction of the injuries and the death of the deceased was approximately one or two minutes. This medical opinion is in complete harmony with the ocular account and the prosecution's version regarding the manner and immediacy of the occurrence. The testimony of PW-10 remained unshaken during cross-examination, and nothing could be elicited to cast any doubt upon the correctness of her medical opinion. Rather, the medical evidence fully corroborates the ocular account as well as the other circumstantial evidence brought on record by the prosecution. In the presence of such cogent and confidence-inspiring medical evidence, the prosecution has successfully established that it was the appellant, being the husband of the deceased, who was responsible for causing her homicidal death. Same was the case with other circumstantial evidence produced in the case in hand in terms of blood-stained earth collected from the crime venue Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

i.e. the house of the spouses, blood-stained garments of the deceased and above all the weapon of offence i.e. the axe used in the commission of the offence.

8.Last but not the least, there was

confessional statement of the appellant, placed on file as Ex. PW-2/4, wherein he duly affirmed the motive part of the case i.e. the alleged photographs of the deceased lady, which have allegedly been uploaded on social medica. He also admitted as correct that on the very day of his arrival to his native country Pakistan from Malaysia he started altercation with his wife over an issue of photographs and in a sheer state of anger and desperation he inflicted fatal axe blows upon vital parts of her body. The judicial Magistrate namely Imran Akbar Khan was examined in Court as PW-2, in support of the confessional statement of the appellant. The confessional statement is prima facie in line with the story of the prosecution qua the brutal murder of the deceased at the hands of none else but her husband, therefore, the same has rightly been made basis by the learned trial Court for conviction of the appellant. Thus, keeping in Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

juxtaposition position the unnatural conduct of present appellant, with the ratio-decidendi expounded by Hon’ble apex Court in its recent judgment rendered in the case of Waris Masih Supra, the appellant has neither offered any logical explanation about the unnatural death of his wife inside the premises of his house, nor he had put- forward any justification about the marks of violence or torture being present on the back of body of the deceased.

9.During course of arguments, learned counsel representing the appellant argued that on all counts the subject occurrence of murder of deceased is an unseen incident because nobody was cited as an eyewitness of the occurrence. He also argued that the complainant/brother did not disclose the source of his information nor satisfaction qua implication of the appellant in the case in hand, except mere mentioning of the motive part. In respect of non- applicability of Article 122 of Qanun-e-Shahadat Order, 1984, to the case in question, the learned counsel for appellant made reference to the case of Nazeer Ahmad, wherein a slight different view was Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

put-forward by Hon’ble Supreme Court of Pakistan in terms that when a vulnerable dependent was done to death inside the confines of a house, particularly during night time, some part of the onus laid on the close relatives of the deceased to explain as to how their near one had met an unnatural death and wherein prosecution utterly failed to prove its own case against any relative/accused, there the accused could not be convicted on the sole basis of his failure to explain the death of his love one[4]. However, in the ibid judgment, Hon’ble apex Court had not only doubted presence of the eyewitnesses on the spot but there was a specific motive in field, wherein spouses had contracted marriage against the whims & wishes of the complainant-party and above all, the august Court had not revisited the view earlier expounded in the cases of Arshad Mehmood, Saeed Ahmad and Abdul Majeed. As an exception, there is another judgment in sight, rendered in the case of Nasr Ullah alias Nasro, wherein Hon’ble apex Court had raised an element of doubt about the death of deceased as to whether the subject incident was a “Nazeer Ahmad v/s State” reported as 2016 SCMR 1628 Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

suicide or homicide. In the latter judgment too, Hon’ble apex Court had not revisited the view expressed in the cases of Arshad Mehmood and Saeed Ahmad Supra [5]. Being pertaining to different facts and circumstances altogether, both the aforesaid judgments, are different and distinguishable, hence, of no help to the learned counsel for the appellant.

10.During the course of arguments, learned counsel for appellant also laid much stress on the point that there were material contradictions in the statements of PWs, in particular official PWs , in respect of arrival of police party to the spot, delay occurred in lodging of report and non-mentioning of the names of other inmates of the house, particularly children, however, it is equally important to note that these PWs have been examined in Court after more than six months of the tragic incident of murder of deceased lady and occurring of such minor contradictions as mentioned earlier were quite natural and appealable to sanity. When witnesses were examined after more than six (06) months of the occurrence a photographic narration of the occurrence cannot be expected from them. Reference can be made to the case of “Khadim “Nasrullah alias Nasro v/s State” reported as 2017 SCMR 724.

Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

Hussain v/s State”, wherein the aforesaid rational of law has explicitly been explained qua creeping of minor contradiction with passage of time [6]. Reliance can also be placed on the case of “Muhammad Ilyas v/s State” whereby it was held by apex Court that “contradictions which are not grave in nature can be ignored safely as minor contradictions creep in with passage of time” [7].

11.In criminal cases, “crime scene” is always considered to be of paramount importance in terms of its location and availability of eyewitnesses, if any, or as to whether it is a residential house or an abandoned vicinity. In context of the present case, as evident from contents of the ‘Murasila’ followed by ibid FIR, the venue of crime is the house of appellant as well as that of deceased lady. As per contents of FIR, it was present appellant who had committed the murder of his own wife inside the premises of his own house, in the background of cited motive, therefore, in view of the peculiar facts and circumstances of the subject event, the prosecution “Khadim Hussain v/s State” reported as PLD 2010 Supreme Court 669.

“Muhammad Ilyas v/s State” reported as 2011 SCMR 460.

Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

has been able to prove the spot occurrence i.e. the house of the appellant.

12.Prosecution has proved its case against the appellant beyond shadow of doubt through trustworthy, confidence inspiring, corroboratory and circumstantial evidence, which have properly been appreciated by the learned trial Court, hence, conviction of appellant for the murder of his own wife namely Mst. Nasima, is not open to any exception.

13.There is no doubt about the fact that the initial burden of proof always lies on the prosecution, and it cannot be absolved of its responsibility, but when the prosecution has proved that the deceased was living with the appellant being his wife and she has met an unnatural death inside the premises of his house, then the presence of the appellant has stood established inside the house beyond any shadow of doubt. Failure to offer any such explanation would directly attract applicability of ratio of the Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din

judgments of Waris Masih, Arshad Mehmood, Saeed Ahmad and Abdul Majeed Supra.

14.In view of what has been discussed above, the instant criminal appeal being bereft of any merits stands dismissed and as a natural corollary the impugned conviction and sentence of the appellant recorded by learned trial Court through impugned judgment dated 20.10.2025, is upheld and maintained.

Announced Dt.01.4.2026 -Sd-

JUDGE

-Sd-

JUDGE

Nawabwab (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Salah-ud-Din