Amjid Hussain Vs The State & another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 446-P/2025

Amjid Hussain Vs The State & another

JUDGMENT

Date of hearing: 13.01.2026

Appellant by: Mr. Muhammad Irfan Khattak, Advocate.

The State by: Mr. Abdur Rauf Afridi, AAG.

Respondent / Complainant by Mr. Muhammad Asif, Advocate.

SAHIBZADA ASADULLAH, J.- Through this criminal appeal, appellant Amjid Hussain has questioned the judgment of the learned Additional Sessions Judge-II, Kohat dated 28.03.2025 rendered in case FIR No. 219 dated 27.08.2021 under sections 302/324 PPC registered at Police Station Shakardara, District Kohat whereby, the appellant was convicted and sentenced as under: -

“Under section 302(b) PPC to rigorous imprisonment for life as Tazir for committing the murder of deceased Saif-ud-Din and to pay compensation of Rs.5,00,000/- (rupees five lac) to the legal heirs of the deceased within the meaning of section 544-A CrPC recoverable as arrears of land revenue and in default whereof, to further undergo simple imprisonment for six months.

Under section 324 PPC to rigorous imprisonment for five years for attempting at the life of the complainant Zakir-ud-Din and to pay a fine of Rs.20,000/- (rupees twenty thousand) and in default whereof, to further undergo simple imprisonment for three months.

All the sentences shall run concurrently. Benefit of section 382-B Cr.P.C is extended in favour of the appellant.

2.According to the prosecution story, as borne out from the FIR, are that on 27.08.2021, complainant Zakir-ud-Din reported

the matter in Civil Hospital Shakardara to the effect that he alongwith his deceased brother Safi-ud-Din was present at graveyard Mir Ali Shah and were feeding pheasant chicks, when in the meanwhile, accused Amjid Hussain son of Pai Khan came duly armed with Kalashnikov and started firing at them as a result of which his brother Safi-ud-Din was hit and died on the spot whereas, he luckily escaped unhurt; that the complainant is unaware of the motive behind the occurrence; that the accused was charged for the commission of offence, hence, the present FIR.

3.Complete challan was submitted to the court. Provisions of section 265-C CrPC were complied with and the appellant was charge sheeted, to which he pleaded not guilty and claimed trial. In order to prove its claim, the prosecution produced and examined as many as 10 witnesses. After closure of prosecution evidence, statement of the appellant was recorded under section 342 CrPC, wherein he posed innocence, however, neither he wished to be examined on Oath as required under section 340 (2) Cr.PC, nor wanted to produce evidence

in defence. The learned trial Court, after full- fledged trial convicted and sentenced the appellant vide the impugned judgment hence, the instant appeal.

4.Arguments heard and record

scanned through with valuable assistance of the learned counsel.

5.The deceased succumbed to the

firearm injuries sustained by him. His dead body was promptly shifted to the hospital, where the matter was reported by the complainant to the police. The injury sheet and inquest report were duly prepared, and thereafter, the dead body was dispatched for post-mortem examination. After receive copy of the FIR, the Investigating Officer proceeded to the place of occurrence and, on the pointation of the complainant, prepared the site plan. During spot inspection, blood-stained earth was collected from the place of the deceased and 10 empties of 7.62 bore, found scattered at the scene, were also taken into possession. On the very next day of the occurrence, the accused was apprehended while in possession of a Kalashnikov rifle. Consequent

upon the said recovery, a separate FIR was registered. The recovered weapon, alongwith the collected empties, was forwarded to the firearms expert, who, through a positive report, opined that the empties had been fired from the recovered weapon. Upon conclusion of the trial, the accused was convicted and sentenced vide the impugned judgment.

6.The learned Trial Court, after

appreciating the evidence brought on record, found the appellant guilty and awarded the aforementioned sentence. This Court is now required to examine whether the learned Trial Court was justified in arriving at such conclusion and whether the prosecution succeeded in producing credible, reliable, and confidence-inspiring evidence in support of its case. Although the prosecution case rests against a single accused, such circumstance by itself, neither relieves the prosecution of its burden to prove the charge beyond reasonable doubt nor absolves the Trial Court of its obligation to critically evaluate the evidence produced before it. It is true that in cases involving a solitary

accused, substitution is comparatively rare;

however, it is equally settled that the burden of proof never shifts and remains squarely upon the prosecution. Even in such situations, the prosecution is under a heightened duty to establish, through unimpeachable evidence that it was the accused alone, who committed the offence and that the chain of evidence conclusively connects him with the crime. In order to determine whether the conclusion drawn by the learned Trial Court is sustainable in law and on facts, it is deemed necessary to minutely examine the record and to reassess the statements of the prosecution witnesses, so as to ensure that no miscarriage of justice is occasioned.

7.The points requiring determination by this Court are; whether the occurrence took place in the manner and at the time alleged by the prosecution; whether the complainant was present at the spot in the company of the deceased at the relevant time; whether it was in fact the complainant who promptly reported the matter to the police; whether the medical

evidence lends corroboration to the prosecution version and, whether the prosecution has succeeded in establishing the guilt of the appellant beyond reasonable doubt.

8.In order to appreciate the peculiar circumstances of the case and to examine the alleged nexus of the appellant with the commission of the offence, it is imperative to evaluate the attending circumstances and, in particular, the claimed presence of the complainant at the place of occurrence. It is not disputed that the prosecution case is directed against a single accused. It is, however, equally undisputed that the place of occurrence is situated at a considerable distance from the residence of the deceased and is located within a graveyard, and that the alleged time of occurrence is between 3:00 p.m. and 3:30 p.m., that too during the peak of the hottest season of the year. This Court is therefore, required to examine whether the explanation furnished by the prosecution regarding the presence of the deceased and the complainant at such an unusual place and time is natural, plausible, and

confidence-inspiring. For this purpose, it is necessary to take into consideration the social and occupational status of both the complainant and the deceased, and to assess whether, in the normal course of human conduct, they could reasonably be expected to be present at the graveyard at the stated time. According to the version of the complainant, he is the owner of a tyre puncture shop situated in Shakardara Bazaar. He stated that he opens his shop at about 6:00 a.m., closes it for a break at 1:00 p.m., reopens it at about 4:00 p.m., and finally winds up his business at around 7:00 p.m. He further stated that the deceased was working as a daily wager, who used to leave home between 6:30 a.m. and 7:00 a.m. and ordinarily returned at about 3:00 p.m. When the daily routine of both individuals is examined, serious doubts arise regarding the plausibility of their presence at the place of occurrence. On one hand, the complainant claims that after closing his shop at 1:00 p.m., he returned home to take rest and meals before reopening his shop at 4:00 p.m while on the other hand, instead of utilizing

this limited interval for rest and refreshment, he allegedly accompanied the deceased to a graveyard, an act which does not appear to be consistent with ordinary human conduct, particularly during the hottest part of the day.

Similarly, as per the statement of complainant, the deceased used to return home at around 3:00 p.m. after performing his daily work. If that be so, it is difficult to comprehend why, immediately upon reaching home, instead of resting or taking meals after a day’s labour, he would choose to proceed to a distant graveyard for the purpose of feeding partridges. Such conduct appears unnatural and improbable, especially keeping in view that both the complainant and the deceased were daily wage earners with routine working schedules and modest means, and were not shown to be engaged in leisure activities of this nature.

Furthermore, if the alleged activity was merely to feed birds, the same could conveniently have been done at or near the house, without undertaking the effort of travelling to a graveyard in extreme heat. The purpose of their

presence, as disclosed by the prosecution, thus fails to appeal to reason and does not inspire confidence. These circumstances create a serious dent in the prosecution version and disturb the judicial conscience of this Court.

When the alleged time of return of the deceased at about 3:00 p.m. is juxtaposed with the time of occurrence, which is stated to be merely 30 minutes thereafter, it becomes highly doubtful that sufficient time was available for the deceased to reach home, rest, take meals, accompany the complainant, travel to the graveyard, and thereafter be present at the scene of occurrence. In view of the foregoing discussion, the alleged presence of the complainant with the deceased at the stated time and place appears to be highly questionable and calls for strict judicial scrutiny. This Court cannot remain oblivious to the fact that when the Investigating Officer visited the place of occurrence, the site plan was prepared solely on the pointation of the complainant. However, neither during the preparation of the site plan nor at any subsequent stage were the alleged

partridges shown, nor was any cage taken into possession. The Investigating Officer admitted that he neither found any cage lying at the spot nor collected any feed allegedly used for feeding the partridges. Even the complainant, in his statement before the Court, failed to furnish any plausible explanation regarding the absence of the cage and the birds. His explanation that the cage was open, the partridges had flown away, and the cage might have been taken away by someone remains speculative and unconvincing.

When the sole justification for the presence of the complainant and the deceased at the graveyard was the alleged activity of feeding partridges, it was incumbent upon the complainant to satisfactorily establish the credibility of such explanation. His failure in this regard must necessarily go to the benefit of the appellant. Reliance in this respect is placed on the judgment of Apex Court titled “Tariq Mehmood vs The State” (2025 SCMR 780), wherein, it has been held as under:

“We are of the considered view that this approach of the learned

appellate court is a complete departure from the principles settled for the administration of justice in criminal cases.

According to these principles, once a single loophole/ lacuna is observed in a case presented by the prosecution, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused.

9.It is further an admitted position that the deceased succumbed to the firearm injuries at the spot and his death was instantaneous. Despite this admitted fact, the dead body was not shifted to the police station, but was instead taken directly to the hospital.

According to the complainant, the dead body remained lying at the spot for about 25 minutes, whereafter, upon his telephonic call, his uncle Sikandar Shah arranged a vehicle and shifted the body to the hospital. This conduct assumes importance, as it demonstrates that the complainant was fully aware that the deceased had expired at the spot, a fact which was also subsequently confirmed by the medical officer.

In such circumstances, the natural and expected course of conduct would have been to take the dead body to the police station for legal formalities, rather than transporting it to the hospital. Although Sikandar Zaman was examined as PW-10 and stated that he verified the version of the complainant at the hospital, but he failed to explain the circumstances under which he was informed, how he arranged the vehicle, whether he reached the place of occurrence, and in what manner the dead body was lifted and transported. Had he actually gone to the spot and witnessed the dead body lying there, he would have been in a position to narrate these material facts. His silence in this regard creates a serious doubt and gives rise to the possibility that the dead body may have been shifted to the hospital even prior to the arrival of the complainant. It is also an admitted position that Sikandar Shah is not an eyewitness to the occurrence. Furthermore, the complainant himself stated that he was called by the Investigating Officer for pointation at about 3:45 p.m. At that time, the dead body was

admittedly lying at the hospital and the post- mortem examination had not yet been conducted. This conduct further weakens the prosecution case, as it suggests that the complainant was not continuously present at the place of occurrence in the manner alleged.

Rather, the sequence of events indicates that the dead body was first shifted to the hospital and the formal reporting of the matter followed thereafter. Although the FIR was lodged without undue delay, this fact alone is not sufficient to dispel the doubts arising from the unexplained conduct of the complainant, particularly when the distance between the hospital and the police station was such that the matter could conveniently have been reported first before shifting the body. The complainant, examined as PW-3, attempted to justify his presence and that of the deceased at the relevant time and place;

however, the explanation regarding their activity of feeding partridges and the circumstances leading them to the graveyard remains implausible and does not inspire confidence.

These circumstances, when viewed

cumulatively, are insufficient to firmly establish his presence at the spot at the time of occurrence. There is no dispute that the deceased was murdered at the graveyard and that blood-stained earth and empties were recovered from the place of occurrence.

However, these facts alone do not, by themselves, establish the guilt of the appellant.

The primary question that first requires determination is whether the complainant was actually present at the scene and witnessed the occurrence. Once this Court reaches the conclusion, as the circumstances strongly suggest, that the presence of the complainant is doubtful, the entire prosecution case is rendered fragile. Reliance is placed on the judgment of apex court titled “Abid Hussain and another versus The state and others” 2024 SCMR 1608, wherein, it has been held as under:

“The manner in which the complainant and PW-7 narrated the story does not appear to be trustworthy. In the facts and circumstances of the case, their presence at the place of the

occurrence at the relevant time is not established, therefore, we have no doubt in our mind that the prosecution case against the appellant is doubtful. The Courts below has not appreciated the evidence and the material available on the record in perspective and have come to a wrong conclusion. Under such circumstances, conviction and sentence awarded to the appellant Abid Hussain are unjustified hence, the impugned judgment to his extent is not sustainable.”

10.The next question that arises is whether the arrest of the accused, the alleged recovery of weapon, and the proximity of the place of occurrence to his house are, by themselves, sufficient to sustain the conviction.

It is a settled principle that the burden of proof always rests upon the prosecution and never shifts, except in circumstances specifically recognized by law. Even where a defence plea is raised, the primary obligation to establish guilt beyond reasonable doubt continues to rest upon the prosecution. The learned counsel for the

parties invited the attention of this Court to the alleged motive attributed to the accused, based upon a statement recorded under Section 161 CrPC. It is well-settled that such a statement has no evidentiary value and cannot be used as substantive evidence. Even if considered for a limited purpose, it merely gives rise to conjectures and suppositions, which cannot substitute proof. Presumptions, however strong, cannot take the place of legal evidence. At best, the material on record may suggest some proximity between the accused and the deceased and the fact that the place of occurrence was located near the house of the accused, however, this is insufficient to establish culpability. On the contrary, the possibility cannot be ruled out that the deceased may have gone alone to the place of occurrence for reasons not fully brought on record, which subsequently led to the unfortunate incident. In the absence of cogent, reliable, and confidence-inspiring evidence directly connecting the appellant with the commission of the offence, the prosecution has

failed to discharge the heavy burden cast upon it by law.

11.The medical evidence does not lend support to the prosecution version. The complainant, while appearing before the Court, categorically stated that at the time of occurrence the back of the deceased was towards the accused and that the firearm shots were allegedly fired from behind. However, when the medical evidence is examined, it reveals that none of the five firearm injuries were sustained exclusively on the back of the deceased. Rather, the injury pattern indicates that the shots were fired from different directions. This material inconsistency between the ocular account and the medical evidence creates a serious dent in the prosecution case. It is true that medical evidence is ordinarily corroborative in nature and by itself does not determine the culpability of an accused.

However, it is equally settled that where the medical evidence contradicts the ocular version on material particulars and renders the prosecution story improbable, such

inconsistency cannot be brushed aside lightly and must be extended in favour of the accused.

In the present case, the conflict between the medical evidence and the version of the complainant creates further dents in the case of prosecution. Reliance is placed on the judgment of the apex court titled “Muhammad Nawaz Versus The State” (2025 SCMR 1053), wherein, it has been held as under:

“The abovementioned conflict between the ocular account and the medical evidence shows that in-fact the prosecution eye- witnesses were not present at the spot at the relevant time because, had they been present at the time of occurrence then they should have given the correct number of injuries sustained by Mst. Azran Bibi (deceased).”

12.Another material question requiring determination is whether the accused was arrested in the manner alleged and whether the weapon of offence was actually recovered from his personal possession. The record indicates, and the prosecution witnesses have stated, that

the accused was apprehended and that a Kalashnikov rifle was recovered from his possession. The arresting officer further stated that he himself had no prior knowledge as to whether the recovered weapon had been used in the commission of the offence, and that it was the accused, who allegedly disclosed this fact, whereafter the weapon was taken into possession and a separate FIR was registered in respect thereof. This Court is required to examine whether the arrest and recovery were effected on the day of occurrence or on the following day, particularly in view of the apparent overwriting and corrections made in the arrest memo, where the date was initially recorded as “27th August, 2021” and subsequently altered to “28th August, 2021”.

This unexplained alteration casts serious doubt on the authenticity of the recovery proceedings.

In order to examine this aspect, the relevant record was scrutinized, particularly the application submitted for sending the case property to the forensic laboratory and the extract obtained from Register No. 19. The

extract reveals that on the first day, three parcels were deposited at the police station whereas, Parcel No. 4, which allegedly contained the Kalashnikov rifle, is also shown as having been deposited on the same day. This circumstance creates further inconsistency, as the prosecution simultaneously claims that the weapon was recovered on the following day. Such contradictory entries regarding the date and time of recovery seriously weaken the credibility of the prosecution version. Although, at first glance, these discrepancies may appear to be minor in nature, they assume decisive importance in the present case, as the prosecution relies heavily upon the alleged recovery to establish the nexus between the accused and the crime. The unexplained overwriting in the arrest memo, the contradictory entries in Register No. 19, and the inconsistent timing of the recovery proceedings collectively indicate procedural irregularities which cannot be ignored. In these circumstances, this Court is persuaded to hold that the alleged recovery, though claimed to

have been effected from the personal possession of the accused, does not inspire confidence. The manner in which the prosecution has attempted to reconcile and adjust the recovery record has substantially eroded the evidentiary value of this piece of evidence. Even otherwise, assuming for the sake of argument that the recovered weapon was in fact used in the commission of the offence and, that it was recovered from the possession of the accused, the question still remains whether this circumstance alone is sufficient to sustain the conviction. In the absence of a reliable and confidence-inspiring ocular account, and when the presence of the complainant at the place of occurrence has already been found to be doubtful, this solitary circumstance cannot, by itself, form a safe basis for holding the accused guilty. Accordingly, in the considered view of this Court, the alleged recovery, standing alone and unsupported by trustworthy direct evidence, is insufficient to establish the guilt of the accused beyond reasonable doubt.

13.The alleged murder is entirely devoid of motive. Even the complainant admitted that he had no knowledge as to why the deceased was killed. No relationship, prior enmity, or history of ill-will between the deceased and the accused was brought on record. In the absence of any established motive, this Court is constrained to examine the surrounding circumstances, including the time and place of occurrence, the nature of employment of the deceased, the routine activities of the complainant, and the unexplained presence of the deceased at a graveyard during the hottest part of the day in peak summer. These factors, when taken cumulatively, strongly suggest that the deceased was present alone at the place of occurrence and had deliberately gone there for reasons not disclosed by the prosecution. Although reference was made to a statement of the accused recorded under Section 161 CrPC suggesting a possible cause of animosity, such a statement carries no evidentiary value and cannot be treated as substantive proof.

Moreover, the complainant assumed the burden of establishing his presence at the scene as an eyewitness, which he has failed to discharge.

This failure has further weakened the prosecution case. It is settled law that while absence of motive may not, by itself, be fatal in every case, where the prosecution version is otherwise doubtful and unsupported by reliable ocular or circumstantial evidence, the absence of motive assumes decisive significance and must go to the benefit of the accused. In the present case, the prosecution has failed to establish a coherent chain of circumstances linking the appellant with the commission of the offence.

14.The cumulative effect of the

deficiencies discussed hereinabove leads this Court to an inescapable conclusion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. The impugned judgment is vitiated by material misreading and non-appreciation of evidence, and the learned Trial Court fell into grave error in returning a finding of guilt. Consequently, the instant criminal appeal is allowed. The

impugned judgment of conviction and sentence is set aside. The appellant is acquitted of the charge and shall be released forthwith, if not required to be detained in any other case.

Above are the detailed reasons of short order of even date.

Announced

JUDGE

JUDGE

*Muhammad Fiaz* *D.B* Hon’ble Mr. Justice Sahibzada Asadullah, J Hon’ble Mr., Justice Mr. Muhammad Ijaz Khan, J