Mashal Vs The State

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Cr.Appeal No. 225-A/2025

JUDGMENT

Date of hearing...................06.10.2026...........................

Appellant (Mashal) By M/s Fazal e Haq Abbasi and Muhammad Arshad Awan, Advocates.

Respondent. (State) By Sardar Basharat, Additional Advocate General and (Complainant) By Mr. Muhammad Saeed Awan, Advocate.

ABDUL FAYAZ, J.- Through this single

judgment we propose to decide this (Cr.Appeal No. 225-A/2025) and the connected Cr.Appeal No. 241-A/2025 as well as Criminal Revision No. 61-A/2025 as these appeals as well as the criminal revision have arisen out of a common FIR bearing No. 201 dated 02.04.2023 registered under Sections 302/34 PPC, at Police Station Oghi, District Mansehra. The appellant namely Mashal along with his co-accused Hamza, Waleed and Imtiaz were tried by the learned trial court and vide impugned judgment dated 29.10.2025, after finding the appellant Mashal guilty for committing murder of deceased Muhammad Ali, convicted him under Section 302 (b) PPC and sentenced to life imprisonment with a fine of Rs.20,00,000/-, in default whereof, the appellant has to further

undergo six months simple imprisonment, with benefit of Section 382-B Cr.P.C. while co-accused Hamza, Waleed and Imtiaz were acquitted of the charges levelled against them, by extending them the benefit of doubt. The acquittal of the said accused has been questioned through connected criminal appeal bearing No. 241-A/2025 whereas criminal revision No. 61-A/2025 has been brought with the prayer of enhancement of sentence of the appellant Mashal.

2.Precisely, the prosecution case originated from the report made by complainant Sagheer Ahmed in the Emergency Ward of Civil Hospital, Oghi, on 02.04.2023. He stated that at about 3:00 p.m., while present in Oghi Bazaar, he received information that Mishal Khan and Waleed had entered into an altercation with his brother Muhammad Ali; that Waleed caught hold of Muhammad Ali and Mishal Khan fired upon him, causing his death. He further alleged that near Katla Hotel, Imtiaz quarrelled with his nephew Osama, Hamza caught hold of Osama, and Imtiaz fired upon him, resulting in his death. Towards the concluding portion of the report, the complainant claimed to have witnessed the occurrence along with Saqib and Ihsanullah as well as other persons

present in the bazaar. Domestic differences were stated to be the motive behind the occurrence.

3.Following registration of the case, investigation was undertaken, the places of occurrence were inspected, site plans were prepared, blood and crime empties were collected, and the dead bodies were subjected to postmortem examination. The prosecution also relied upon the recovery of a .32-bore pistol at the instance of Mishal Khan and a .30-bore pistol at the instance of Imtiaz. Upon completion of investigation, the accused were sent up for trial. After compliance with section 265-C Cr.P.C., a charge under sections 302/34 PPC was framed, to which they pleaded not guilty and claimed trial.

4.The prosecution examined sixteen witnesses. The material evidence comprised the testimony of complainant Sagheer Ahmed as PW- 7, Saqib Khan as PW-8, Ihsanullah as PW-9, Muhammad Ishaq as PW-13, Atif Khan as PW-14 and Murad Khan as PW-16, besides the medical, investigative and recovery evidence. Upon conclusion of the prosecution evidence, the accused were examined under section 342 Cr.P.C., wherein they denied the allegations and pleaded innocence. They neither appeared on oath under

section 340(2) Cr.P.C. nor produced defence evidence. After hearing the parties, the learned trial Court convicted Mishal Khan and acquitted the remaining accused in the terms already mentioned.

5.We have heard learned counsel for the parties and the learned Additional Advocate General and have examined the available record with their assistance.

6.The homicidal deaths of Muhammad Ali and Osama are established by the medical evidence. The question requiring determination, however, is whether the prosecution proved, beyond reasonable doubt, the participation and respective criminal responsibility of the persons charged. Proof that an offence occurred must be distinguished from proof that a particular accused committed it. The gravity of the occurrence cannot relieve the prosecution of its obligation to establish the latter through reliable evidence.

7.The earliest account furnished by the complainant requires careful examination. Its opening portion proceeds upon information received by him concerning the quarrel and firing, whereas its concluding portion presents him as an eyewitness of the occurrence. These positions

could conceivably be reconciled if the complainant had explained that, after receiving information about an ongoing confrontation, he reached the scene and personally observed a subsequent material act. His testimony before the Court, however, does not provide that explanation.

8.While appearing as PW-7, the

complainant stated that Muhammad Ishaq informed him on his mobile phone that Mishal Khan had fired upon Muhammad Ali and Imtiaz had fired upon Osama. He thereafter reached the scene, where Saqib and Ihsanullah informed him about the occurrence. His account thus places both the firing and the communication of its consequences before his arrival. He did not establish that he personally observed either fatal act. The learned trial Court itself recognized that the complainant was not an eyewitness.

Consequently, his testimony regarding the identity of the assailants and the manner of firing could not be treated as direct ocular evidence.

9.This infirmity does not mean that an FIR lodged by a person who did not witness the occurrence is legally ineffective. Such a report may properly set the criminal law in motion. Its evidentiary significance must nevertheless be

assessed according to the informant’s actual knowledge. Here, the inconsistent assertion of direct observation assumes significance because the prosecution relied upon the prompt report as an assurance of the truth of the subsequent ocular account. A report founded upon information received from others cannot provide independent eyewitness corroboration of those very informants.

The evidence of Muhammad Ishaq, PW-13, further exposes the uncertainty concerning the source and extent of the complainant’s initial information. Ishaq stated that he saw Mishal, Imtiaz, Waleed and Hamza beating Muhammad Ali and informed the complainant about the quarrel. The complainant, on the other hand, attributed to that telephone communication information about both fatal shootings and the particular person who fired upon each deceased.

Ishaq’s account of the communication does not furnish corresponding support for those particulars. The distinction is material;

information about a quarrel is not equivalent to an eyewitness account of two completed homicides.

10.The principal evidence against Mishal Khan therefore rests upon Saqib and Ihsanullah.

Their statements must be assessed on their own

merits. Their relationship with the complainant or the deceased does not, by itself, render them incompetent or unworthy of belief. Equally, the absence of a demonstrated motive to falsely implicate the appellant cannot substitute for affirmative proof that they were present and reliably observed the occurrence. Both witnesses placed themselves near Ali Medical Store.

Ihsanullah explained that Saqib was purchasing medicine for his son. The learned trial Court accepted this explanation primarily because Oghi Bazaar is a public commercial centre ordinarily frequented by inhabitants of nearby villages.

While that circumstance makes their presence possible, it does not conclusively establish their presence at the particular time and place. Their explanation must be considered together with their account of what followed, their interaction with the complainant, and the consistency of the events narrated by them.

11.In this respect, Saqib stated during cross- examination that he had not informed the complainant or the legal heirs of the deceased about the occurrence. He further stated that the police reached the hospital, whereafter the complainant arrived and reported the matter, and

that he informed the complainant about the occurrence in the hospital. Ihsanullah, however, stated that he informed the complainant at the scene and that the complainant was present there when the police arrived. The complainant likewise maintained that both witnesses informed him at the scene. The accounts thus differ on whether the complainant received the eyewitness version at the place of occurrence or only after reaching the hospital. This divergence is not merely an error concerning an incidental detail. It concerns the formation of the prosecution’s earliest narrative that who supplied the information, where it was supplied, and whether the complainant accompanied the witnesses through the immediate aftermath of the occurrence. Saqib’s account cannot readily be reconciled with the assertion that he and Ihsanullah jointly briefed the complainant at the scene. The witnesses also stated that the police removed the bodies from the scene.

According to the complainant, the police arrived after approximately twenty to twenty-five minutes, whereas Saqib gave an interval of ten to fifteen minutes. Human recollection of elapsed time following a violent incident is seldom exact. Their significance arises from the surrounding account

that several close relatives were present, yet the victims remained at the scene until the police removed them, and the alleged eyewitnesses neither reported the matter to the police nor supplied a consistent account of the complainant’s arrival.

12.Another important aspect of the case is that admittedly the parties as well as the alleged eyewitnesses were closely related to each other but even then, the alleged eyewitnesses never tried to de-escalate the quarrel nor made any attempt to separate the accused or the victim, rather remained at the spot as silent spectators. Even after the occurrence, they remained at the spot and waited for the arrival of the police and none of them had tried to shift the victims to hospital. Neither the complainant nor the alleged eyewitnesses sustained any injury, nor their hands or clothes sustained any stain of blood. If the alleged eyewitnesses and the complainant were present at the scene of occurrence, in a natural course, they must have tried to shift the victims to hospital as soon as possible in order to make an attempt to save lives of the deceased, but none has even touched the deceased, which

creates serious doubt in their presence at the spot. In the case of “Muhammad Akhtar and others Vs. The State and others” reported as 2025 SCMR 45, the apex Court was pleased to hold that;

“Non-receiving of any firearm injury by PW.14 during the occurrence and his accurate attribution of each injury of the deceased and injured to each accused specifically with specific firearms casts serious doubt about his presence at the place of occurrence and his plantation as an eyewitness of the occurrence due to previous enmity with the nominated accused cannot be ruled out of consideration particularly when his testimony is lacking independent corroboration in material aspects.”

Reference may also be made to the case of “Riasat Ali and another Vs. The State and another” (2024 SCMR 1224), “Mst. Rukhsana Begum and others Vs. Sajjad and others” (2017 SCMR 596), “Zahir Rehman Vs. Saeed Ali Raza Shah and another” (2018 YLR 1900), “Malik Aamir Sultan and 2 others Vs. The State and another” (2018 MLD 1635), and “Muhammad

Noor Vs. Riaz Shah and another” (2016 MLD

13.Another circumstance which creates serious doubt about the presence of the complainant as well as the alleged eyewitness at the spot is the manner of reporting the matter. Admittedly, as per narration of the complainant he got knowledge about the occurrence from Saqib and Ihsanullah, therefore, Saqib and Ihsanullah were having first hand information regarding the occurrence. They are also close relatives of the complainant, but none of them reported the matter to the local police. As per evidence of PW-8, the complainant reached the hospital after 10 minutes of arrival of the police at the hospital. PW-8 further admitted that he informed the complainant about the occurrence in the hospital. PW-9 on the other hand states that he informed the complainant about the occurrence at the spot. He further stated that he himself went to hospital through bike while Saqib went to hospital through other means.

He was unaware about the time when the

complainant made report. The glaring inconsistencies in the evidence of these particular witnesses create serious doubt in their presence and further weakens their credibility as an eyewitness. PW-8 and PW-9, though claimed to be present at the time when the report was lodged by the complainant, but none of them has endorsed the report lodged by the complainant.

14.The prosecution alleged motive to be the family differences, however, not an iota of evidence could be brought on record in this respect. Thus, in such a scenario we feel no hesitation to hold that the prosecution has miserably failed to prove the motive through cogent and confidence inspiring evidence.

Reliance in this respect may here be placed on the judgment delivered by Hon’ble Supreme Court of Pakistan in the case of “Muhammad Hassan & another Vs. The State & another” reported as 2024 SCMR 1427 where it was held: - "“Motive was a double edged weapon, which could be used either way and by either side i.e for real or false involvement. So, the motive asserted by the

prosecution indicated that there was an enmity of murder between the parties and the said motive, being double edge could be the reason for the false implication of the petitioner.”

15.The appellant, Mashal, was aged about 72/73 years, while co-accused Waleed was his son. According to the prosecution, Waleed caught hold of the deceased, Muhammad Ali, while Mashal fired at him. This account raises doubt as to its plausibility, as it appears unnatural that an elderly father, in the presence of his young son, would himself fire at a person being held by that son, thereby exposing his own son to the risk of a firearm injury in the event of even a slight error in aim.

16.In the totality of these circumstances, the prosecution case is riddled with material contradictions, unexplained inconsistencies, and serious doubts regarding the presence of complainant as well as eyewitnesses at the spot and the mode and manner of the alleged occurrence. It is a settled principle of criminal jurisprudence that the prosecution is bound to prove its case beyond reasonable doubt, and if

any reasonable doubt arises from the evidence on record, the accused is entitled to the benefit thereof as a matter of right.

17.When the ocular account produced by the prosecution was not worth credence, then the remaining circumstantial evidence i.e. the medico- legal reports and incriminating recoveries would not be sufficient to record findings of conviction against the accused.

18 . From the above discussed evidence, it has become clearer than crystal that case of the prosecution is full of doubts and while acquitting an accused even a single reasonable doubt is sufficient. Reliance in this respect may be placed on the judgment delivered by Hon’ble Supreme Court of Pakistan in the case of “Muhammad Akram Vs. The State” reported as 2009 SCMR 230 where it has been held;

“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts.

If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”

Further reliance in this respect may be placed on the judgments delivered by the Hon’ble Supreme Court of Pakistan in the cases of “Chetan Vs. The State” (2025 SCMR 944), “Muhammad Nawaz Vs. The State” (2025 SCMR 1053), “Muhammad Ashraf Vs. The State” (2025 SCMR 1082) and “Imtiaz Hussain Shah alias Tajjay Shah and another Vs. The State and others” (2025 SCMR 1110).

19.In view of what has been discussed above, it has been established that the prosecution has miserably failed to prove its case against the accused including appellant beyond any shadow of doubt, therefore, the learned trial has not attended to material glaring contradictions in the statements of prosecution witnesses, thus, while extending the benefit of doubt to the appellant as well we feel no hesitation to hold that the prosecution has failed to prove its case against him. Resultantly, we, while allowing the instant appeal, set aside his convictions and sentences recorded by learned

trial court and acquit him of the charges levelled against him (Appellant Mashal). He be set at liberty forthwith, if not required in any other case.

20.So far as connected Criminal Appeal bearing No. 241-A/2025 and Cr.Revision No. 61- A/2025 filed by Muhammad Zaheer Hamid are concerned, as we have disbelieved the prosecution evidence against the accused, hence, the criminal appeal as well as criminal revision, having become infructuous, are hereby dismissed.

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

Announced:

JUDGE

JUDGE

Hon’ble Mr. Justice Abdul Fayaz Hon’ble Mr. Justice Syed Mudasser Ameer /*Tufail.*/