Yaseen Khan Vs The State & 02 others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Cr.A No. 258-M/2020

Yaseen Khan Versus The State and 02 others

Present:

Mr. Fayaz Muhammad Qazi, Advocate for appellant.

Mr. Imran Khan, Assistant A.G. for State.

Mr. Sabir Shah, ASC for accused/respondents.

Date of hearing: 28.07.2026

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- Through the instant criminal appeal under section 417, Cr.P.C., appellant/ complainant Yaseen Khan has assailed the judgment dated 15.09.2020, handed down by the learned Additional Sessions Judge/Model Criminal Trial Court, Malakand at Batkhela, whereby respondents No.2 and 3, namely Nawab Ali and Mst.

Shehnaz Bibi, were acquitted of the charges in FIR No.534 dated 11.11.2019, registered under sections 302/34 PPC, at Levies Post Dargai, District Malakand.

2.Precisely stated, the prosecution case emanates from the afore-mentioned FIR registered on the report of appellant/complainant Yaseen Khan. The occurrence allegedly took place on the 11.11.2019 at about 13:15 hours, whereas the report was lodged at about 14:00 hours. The deceased was Yousaf Khan son of Rahim Gul, father of complainant Yaseen Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Khan. According to the prosecution, the appellant/complainant, was present at his home while his father had gone to village Warter. At 13:10 hours he returned back on his motorcycle and went to the upper room. In the meanwhile at 13:15 hours, he heard a fire shot and proceeded to the said room and found his father seriously injured, who was shifted to hospital with the help of neighbors. He initially charged unknown accused for the murder of his father, however, later on attributed the murder to respondents No.2 and 3, Nawab Ali and Mst.

Shehnaz Bibi, alleging their joint involvement in the occurrence.

3.During investigation, the Investigating Officer inspected the spot and collected various articles from the place of occurrence, including blood through cotton, blood-stained garments and crime empties, and prepared the relevant recovery memos and site plan. The dead body was subjected to post-mortem examination and the recovered articles were subsequently sent to the Forensic Science Laboratory. The prosecution further relied upon the alleged recovery of a pistol- like gun (Mark-4) of 303 bore on pointation of accused Nawab Ali and mobile phones, besides the call data record (CDR), in an attempt to connect the respondents with the commission of the offence. Upon completion of investigation, respondents No.2 and 3 were sent up to face trial for the murder of the deceased.

Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

4.At the trial, the prosecution examined seven witnesses (PW-1 to PW-7) and produced the documentary and material evidence collected during investigation. After closure of the prosecution evidence, the respondents were examined under section 342, Cr.P.C., wherein they denied the prosecution allegations and professed innocence. Upon appraisal of the evidence, the learned trial Court, vide judgment dated 15.09.2020, found the prosecution unable to establish the charge beyond reasonable doubt and consequently acquitted both respondents. Aggrieved therefrom, complainant Yaseen Khan has preferred the instant appeal against acquittal.

5.We have heard learned counsel for the

appellant/complainant as well as the learned Assistant A.G.

appearing on behalf of State and have gone through the record with their able assistance. It may be observed at the outset that the present appeal was admitted to regular hearing primarily on the submission of learned counsel for the appellant that the ocular account furnished by the child witness, Ammas Khan (PW-5), when read in conjunction with the CDR, constituted overwhelming evidence connecting the accused-respondents with the murder of deceased Yousaf Khan, but the learned trial Court discarded the same without any justifiable basis. The contention undoubtedly called for closer examination of the record; nevertheless, admission of an appeal against acquittal on a particular submission does not dilute the settled Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

parameters governing interference with an acquittal. The respondents, having earned acquittal after a full-fledged trial, carry a double presumption of innocence, and the judgment can be displaced only where the conclusions of the trial Court are demonstrated to be perverse, arbitrary, wholly unreasonable or the result of material misreading/non-reading of evidence. A merely possible alternative view is not sufficient. This principle has recently been reiterated by the Supreme Court in Raja Khurram Ali Khan and 2 others v. Tayyaba Bibi and another1.

6.The prosecution, in order to connect the accused- respondents with the murder, mainly relied upon the testimony of child witness Ammas Khan (PW-5); the CDR; recovery of a .303 bore pistol-like firearm (Mark-4) allegedly on the pointation of accused Nawab Ali; the crime empties and forensic material; and the other circumstances collected during investigation. The medical evidence was furnished by Dr. Fazli Ahad (PW-2), Medical Officer, THQ Hospital Dargai, who examined deceased Yousaf son of Rahim Gul, aged about 53 years, on 11.11.2019 at 13:52 hours. He observed a circular firearm wound measuring about 0.5 cm on the middle of the right cheek with charring around it and attributed the death to brain injury. He proved the injury sheet as Ex.PW-2/1 and the pictorial diagrams as Ex.PW-2/2 and Ex.PW-2/3. Thus, the unnatural death of Yousaf as result of firing was hardly in

PLD 2020 SC 146

Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

controversy; the real question before the trial Court was the identity of the perpetrator(s).

7.Before adverting to the evidence of Ammas Khan (PW-5), the relationship amongst the principal characters is of considerable significance. Ammas is the real son of deceased Yousaf Khan and, at the same time, of accused Mst. Shehnaz Bibi. In other words, the prosecution seeks to rely upon a child who attributes participation in the murder of his father to, amongst others, his own mother. This circumstance cuts both ways. Ordinarily, a child would have no natural reason to falsely implicate his own mother in the murder of his father and, had his account emerged spontaneously at the earliest opportunity and remained consistent throughout, such relationship could lend assurance rather than detract from his testimony. At the same time, because of his tender age and the extraordinary domestic situation created by the death of one parent and accusation against the other, the possibility of influence or tutoring could not be brushed aside; it was incumbent upon the prosecution to demonstrate through the sequence of events that his accusation was spontaneous, consistent and free from intervening influence.

8.It is in the above context that the very genesis of the prosecution case assumes importance. The occurrence took place on 11.11.2019 at about 13:15 hours. The complainant Yaseen Khan, son of the deceased, admittedly did not witness Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

the firing. According to him, his father had returned from village Warter at about 13:10 hours on his motorcycle and proceeded to the upper room; approximately five minutes later, the complainant heard a gunshot, rushed there and found him seriously injured. Most significantly, notwithstanding the presence of Ammas in the house where the occurrence took place, the crime was initially reported at about 14:00 hours against unknown accused. The respondents were implicated subsequently. This feature assumes considerable importance because, if Ammas had actually witnessed the respondents, particularly his own mother, committing or participating in the murder, the prosecution was required to satisfactorily explain when he first narrated that fact, to whom he narrated it and why such a vital disclosure did not find its way into the earliest version of the occurrence.

9.Ammas Khan appeared as PW-5. The record shows that, before recording his substantive testimony, the learned trial Judge put preliminary questions to him to ascertain whether, despite his tender years, he was capable of understanding questions and furnishing rational answers. This was in consonance with Article 3 of the Qanun-e-Shahadat Order, 1984. The legal competency of PW-5, therefore, is not by itself the difficulty. The real issue is whether his substantive account possessed the degree of reliability required for Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

fastening criminal liability for a capital offence upon the respondents.

10.The distinction is important because competency and credibility operate in different fields. In State through Advocate-General, Sindh v. Farman Hussain and others2, the Supreme Court, while construing Article 3 of the Qanun-e- Shahadat Order, 1984, recognized that a child possessing sufficient understanding is competent to testify, but held that the evidence of a child is a delicate matter which calls for care and caution and, as a rule of prudence, corroboration, with particular vigilance against the element of coaching.

Interestingly, that judgment itself notices Abdullah Shah v. The State3, where the solitary testimony of a seven/eight-year-old daughter against her father for murdering her mother was accepted because the child was found competent, was a natural witness and her account was corroborated by medical evidence and other circumstances. Thus, relationship with the accused is neither a rule of rejection nor of automatic acceptance;

reliability ultimately depends upon the intrinsic worth of the child's account and the surrounding corroborative material.

11.Similarly, Muhammad Ismail and another v. The State4 recognizes that evidence of a child possessing sufficient understanding can sustain conviction where it inspires

PLD 1995 SC 1

1968 SCMR 852

1995 SCMR 1615

Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

confidence and receives support from dependable circumstances. Conversely, Raja Khurram Ali Khan (supra) emphasizes that a distinction has to be maintained between a child who witnesses an offence committed against somebody else and a child who is himself/herself the victim. Ammas falls in the former category. His power of observation, ability to reproduce the occurrence, consistency of narration and freedom from subsequent influence, therefore, required vigilant judicial scrutiny.

12.Examined from this perspective, the difficulty confronting the prosecution is not the tender age of PW-5 in isolation, nor merely his relationship with the parties, but the absence of sufficiently needed independent circumstances capable of removing the doubt generated by the initial report against unknown assailants and the subsequent emergence of his accusation. The circumstance that the accused woman is his own mother undoubtedly makes a false accusation against her unusual; it cannot, however, substitute the prosecution's obligation under Article 117 of the Qanun-e-Shahadat Order, 1984 to establish guilt beyond reasonable doubt. The trial Court was, therefore, justified in searching for independent assurance before acting upon his testimony.

13.The CDR was mainly pressed into service for that purpose. However, the evidentiary value of such material is limited by what it actually proves. The mere fact that one Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

mobile number communicated with another establishes, at the highest, electronic contact between the two numbers; it does not establish the contents of the conversation, the person actually operating either handset at the relevant time, or the criminal object of the communication. The prosecution was thus required not merely to produce call data but to prove the attribution of the relevant SIMs/phones and some incriminating significance of the calls relied upon.

14.The matter is directly governed by Mian Khalid Perviz v. The State through Special Prosecutor ANF and another5, wherein the Supreme Court, while considering Articles 46-A, 78-A and 164 of the Qanun-e-Shahadat Order, 1984, held that electronically generated evidence is admissible but, when disputed, must be proved in accordance with law.

More importantly, mere production of CDR without transcripts of calls or end-to-end audio recording cannot be treated as evidence worthy of reliance; it must additionally be established that the callers at both ends were the very persons whose call data is sought to be used in evidence.

15.Tested against the above principle, the CDR in the present case did not supply the missing corroboration. No transcript or audio recording of any incriminating conversation was produced. Consequently, even if the relevant calls are accepted as having taken place, their contents remain unknown.

2021 SCMR 522

Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

The prosecution sought to move from the existence of telephonic contact to an inference of participation in murder without proving the intermediate facts necessary for that inference. Such electronic contact, therefore, could not transform an otherwise doubtful circumstance into substantive corroboration of PW-5. Thus, the learned trial Court has rightly brushed aside this piece of evidence.

16.The prosecution further relied upon recovery of the pistol-like firearm of .303 bore (Mark-4), allegedly effected on the pointation of accused Nawab Ali. Unlike an inconclusive recovery, the forensic material in the present case lends support to this circumstance, inasmuch as the FSL report Ex.PW-7/27 reflects a matching analysis between the crime empty recovered from the place of occurrence and the aforesaid recovered weapon. This circumstance though cannot be brushed aside as devoid of evidentiary value and constitutes corroborative material against accused Nawab Ali.

Nevertheless, being a piece of circumstantial evidence, its ultimate probative worth has to be assessed together with the manner and circumstances of recovery, the ocular account of PW-5 Ammas Khan and the remaining prosecution evidence, particularly because the present proceedings arise out of an acquittal and conviction cannot rest upon an isolated incriminating circumstance unless the prosecution evidence, taken as a whole, establishes guilt beyond reasonable doubt.

Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

17.Although the unnatural death stands established in light of medical evidence and the FSL report Ex.PW-7/27 furnishes a forensic nexus between the crime empty and the .303 bore pistol-like firearm (Mark-4) allegedly recovered on the pointation of Nawab Ali. This is undoubtedly an incriminating circumstance against him, however, the question remains whether the prosecution has satisfactorily established the recovery itself and whether this circumstance, when read with the testimony of PW-5 Ammas Khan, the CDR and the remaining evidence, completes an unbroken chain sufficient to overturn the acquittal. The answer to this question is simple “no” for the reason that no independent witness was associated with the process of the alleged recovery in terms of Section 130, Cr.P.C. nor any plausible explanation has been offered for this omission. Secondly, it is settled law that circumstantial evidence cannot overweigh the direct ocular account especially when the status of such recovery is not free from doubt. Thus, the said recovery is of no avail to prosecution and the conclusion drawn by the trial Court is unexceptional.

18.The prosecution case, therefore, substantially becomes one of a child witness sought to be fortified by circumstantial evidence. The rule governing such evidence is stringent. In Naveed Asghar and 2 others v. The State6, the Supreme Court held that every incriminating circumstance

PLD 2021 SC 600

Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

must first be firmly established and all the circumstances must constitute a well-knit and unbroken chain, one end touching the dead body and the other the neck of the accused. A missing material link breaks the chain, and circumstances capable of reconciliation with a reasonable hypothesis of innocence cannot sustain conviction. Such a complete chain is conspicuously absent here. The unnatural death stands established, but that is only the starting point. The initial accusation was against unknown persons; the incriminating account of PW-5 surfaced thereafter; the CDR does not disclose any incriminating conversation; and the alleged firearm recovery does not, on the material available, provide the requisite scientific nexus with the fatal shot. These circumstances do not converge upon the respondents to the exclusion of every reasonable hypothesis consistent with their innocence. The prosecution cannot make good one deficient link by placing it alongside another equally inconclusive circumstance.

19.There are also material incongruities in the prosecution evidence which reinforce the view taken by the learned trial Court. The complainant was not an eyewitness to the actual firing and his first version did not identify the assailants. The case thereafter acquired an ocular dimension through PW-5. The prosecution was consequently required to establish with clarity the circumstances in which the child first Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

disclosed the identity of the assailants and the interval between the occurrence and such disclosure. This was particularly necessary because he was a child placed in an exceptionally traumatic family situation: his father had just been killed and his real mother was subsequently accused of participating in that killing. In such circumstances, the possibility of influence could not simply be presumed either way; what mattered was whether the prosecution evidence itself excluded it. The trial Court found the evidence insufficient for that purpose, and we have not been persuaded that such conclusion was unreasonable or contrary to the record.

20.At the same time, we would not subscribe to any proposition that PW-5 was to be disbelieved simply because he was a child or because one of the accused was his mother. Such an approach would run contrary to Article 3 of the Qanun-e- Shahadat Order, 1984 and the law declared by the Supreme Court. Indeed, an accusation by a child against his own mother for the murder of his father is a circumstance demanding serious consideration. But the gravity and unusual nature of the accusation cannot lower the standard of criminal proof. The question is not whether the account is possible; it is whether, after the closest scrutiny and in the light of the entire record, it is sufficiently safe to reverse an acquittal and record a conviction for qatl-i-amd. On that test, we find the corroborative material wanting.

Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

21.The submission made at the time of admission of this appeal that the ocular account of PW-5, when corroborated by the CDR, constituted overwhelming evidence, thus does not withstand closer evidentiary scrutiny. The evidence of PW-5 was certainly relevant and legally admissible, but required cautious appraisal; whereas the CDR, for the reasons already discussed, did not constitute the independent substantive corroboration attributed to it. The two pieces of evidence could not be made mutually corroborative merely by placing them together when the essential incriminating content of the latter had not been proved.

22.As discussed earlier, there is yet another restraint upon interference. This is an appeal against acquittal. In Raja Khurram Ali Khan (supra), the Supreme Court reiterated that after acquittal an accused enjoys a double presumption of innocence, and an appellate Court may not disturb the acquittal merely because another view of the evidence is possible.

Interference is justified where the trial Court's appraisal is perverse, arbitrary or wholly unreasonable, or proceeds upon material misreading/non-reading resulting in failure of justice.

The same cautious approach to an acquittal, and the necessity of cogent reasons before substituting the trial Court's assessment of witnesses with that of the appellate Court, finds support in. Farman Hussain (supra).

Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

23.We have examined the impugned judgment against that exacting standard. The learned trial Court did not discard the prosecution case on an artificial or fanciful consideration;

rather, it evaluated the child witness, CDR, recoveries and other circumstances and found that they did not furnish a safe and complete basis for conviction. Even if some individual circumstance is capable of another interpretation, the view ultimately taken by the trial Court remains a reasonably possible view of the evidence. It cannot, therefore, be displaced in an appeal against acquittal.

24.Criminal liability cannot rest upon conjectures, probabilities or suspicion, however strong. Where the prosecution relies upon a combination of direct and circumstantial evidence, each material component must possess sufficient probative worth and the evidence as a whole must establish guilt beyond reasonable doubt. The principle is all the more important where the prosecution seeks reversal of an acquittal. In the present case, the doubts noticed above touch the identity and participation of the respondents, the very core of the charge, and not some peripheral detail. The respondents were consequently entitled to their benefit.

25.For the foregoing reasons, we find no legal or factual ground to interfere with the judgment dated 15.09.2020 passed by the learned trial Court. The appeal is, accordingly, Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah

dismissed and the acquittal of the accused-respondents is maintained.

Announced Dt: 28.07.2026 -Sd-

JUDGE

-Sd-

JUDGE

Tajamul/CS* | DB: Hon’ble Mr. Justice Salah Ud Din Hon’ble Mr. Justice Qazi Jawad Ehsanullah