Muhammad Ali Vs The State & another

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Cr. A No. 356-P/2025

Muhammad Ali Vs The State & another

JUDGMENT

Date of hearing: 27.01.2026

Appellant by: M/s. Hussain Ali & Shabbir Hussain Gigyani, Advocates.

The State by: Mr. Abdur Rauf Afridi, Addl. AG.

Complainant by: - Mr. Waqar Ahmad Khan, Advocate.

SAHIBZADA ASADULLAH, J.- Through this single judgment, this court is intending to decide the instant appeal as well as connected Criminal Revision No. 73-P/2025 titled “Ibrahim vs The State & another” as both the matters are arising out of one and the same judgment dated 20.03.2025 passed by the learned Additional Sessions Judge-II, Shabqadar, District Charsadda delivered in case FIR No. 535 dated 28.11.2010 under

sections 302/324/34 PPC at police station Battagram, District Charsadda, whereby, the appellant was convicted and sentenced as under:

“Under section 302(b) PPC to rigorous imprisonment for life as Tazir for committing murder of deceased Niaz Ali and to pay a fine of Rs.10,00,000/- (rupees ten lac) to the legal heirs of the deceased within the meaning of section 544-A CrPC and in default whereof, to further undergo simple imprisonment for six months.

Under section 302(b) PPC to rigorous imprisonment for life as Tazir for committing murder of deceased Kashif and to pay a fine of Rs.10,00,000/- (rupees ten lac) to the legal heirs of the deceased within the meaning of section 544-A CrPC and in default whereof, to further undergo simple imprisonment for six months.

Under section 324 PPC to rigorous imprisonment for three years and to pay a fine of

Rs.50,000/- (rupees fifty thousand) for attempting at the lives of complainant Ibrahim and eye witness Zainullah ineffectively 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 case, as borne out from the murasila, on 28.11.2010, complainant Ibrahim reported the matter at Civil Hospital, Shabqadar to the effect that he alongwith Zainullah, Niaz Ali, and Kashif, was present at the blocks stock situated at Ashara Koroona (Battagram) near the house of accused Ali Khan; that accused Ali Khan s/o Alam Khan, Akbar Ali and Muhammad Ali sons of Ali Khan, all armed with deadly weapons, came out from their house and accused Ali Khan entered into an altercation with deceased Niaz Ali, whereupon all the accused, being annoyed, started firing at them,

as a result of which, Niaz Ali sustained firearm injuries and died on the spot, while Kashif received injuries, whereas, complainant Ibrahim and Zainullah escaped unhurt; that after the occurrence, accused fled away from the scene; that motive behind the occurrence was that deceased Niaz Ali had friendship with one Noor Zaman, which was resented by the accused party; that the accused were charged for the commission of offence, hence, the present FIR. It is pertinent to mention that later the injured Kashif also succumbed to his injuries.

3.It is pertinent to mention that soon after the occurrence, the accused went into hiding and proceedings under section 512 CrPC were completed against them. However, it was upon arrest of the appellant Muhammad Ali on 01.04.2023 that his supplementary 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 15 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) CrPC, nor wanted to produce evidence in defence. The learned trial Court, after full-fledged trial, convicted the appellant vide the impugned judgment hence, the instant appeal.

4.Arguments heard and record

scanned through.

5.The unfortunate incident resulted in the death of one person at the spot, while another sustained firearm injuries. Both the deceased and the injured were immediately shifted to the hospital, where the death of the first victim was declared. The injury sheets were prepared and the FIR was promptly registered. The dead body was dispatched for post-mortem examination, whereas the injured was examined and his medico-legal certificate was prepared. After being provided initial

medical assistance, the injured Kashif was referred to Lady Reading Hospital, Peshawar for specialized treatment; however, he succumbed to his injuries on the following day.

After receiving copy of the FIR, the Investigating Officer visited the place of occurrence and, at the pointation of the complainant and eye witness, prepared the site plan. During spot inspection, blood through cotton was collected from the respective places of the deceased. The Investigating Officer further recovered 17 empties of 7.62 bore from point “A” attributed to accused Ali Khan, 09 empties of 7.62 bore from point “B” attributed to accused Akbar Ali and 13 empties of 7.62 bore from Point “C” attributed to the appellant Muhammad Ali. All recovered empties were sealed and forwarded to the firearms expert.

The forensic report confirmed that the empties had been fired from different weapons. The appellant initially absconded however, upon his arrest, he was committed to trial and, after conclusion of the proceedings, was convicted and sentenced vide the impugned judgment.

6.The learned trial court, after appreciating the material available on record, held the appellant responsible for the commission of the offence. This Court is now required to examine whether the learned trial court was justified in reaching such conclusion and whether the evidence was properly appreciated. There is no dispute that the appellant, alongwith other co-accused including a father and his two sons, has been directly charged with the commission of the offence however, the mere fact of nomination in the FIR and the tragic nature of the incident cannot, by itself, determine criminal liability.

The prosecution remains under a strict obligation to establish the guilt of each accused individually through independent, reliable, and confidence-inspiring evidence. Undoubtedly, the incident claimed the lives of two persons, rendering the matter grave and emotionally charged. Nevertheless, it is not the number of casualties, but the quality and credibility of the evidence that must guide judicial determination. This Court must also remain

vigilant to examine whether any possibility of substitution exists or whether the number of accused has been exaggerated. In order to appreciate the true contours of the case and to prevent any miscarriage of justice, this Court deems it necessary to reappraise the evidence on record and to re-evaluate the statements of the prosecution witnesses.

7.The points arising for

determination before this Court are whether the incident occurred in the mode, manner and at the time alleged by the prosecution; whether the complainant and the prosecution witnesses actually witnessed the occurrence and promptly reported the matter; whether the prosecution has successfully connected the appellant with the commission of the offence;

whether the medical and forensic evidence supports the ocular account; and whether the prosecution has succeeded in proving the charge against the appellant beyond reasonable doubt.

8.In order to properly appreciate the attending circumstances of the present case, it

is imperative to examine the manner in which the unfortunate incident occurred, the timing of the occurrence, the inter-se relationship of the parties, and the motive alleged by the prosecution which prompted the accused to commit the offence. There is no dispute that all the accused are closely related to each other, one being the father, the other a son, and the present appellant being the second son therefore, it becomes necessary for this Court to examine whether all the accused shared a common interest to commit the crime and, if so, what was the compelling factor that brought them together at the time of occurrence. It is of particular importance that at the time of the alleged incident, the appellant was only about sixteen and a half years of age.

This Court is thus under a legal obligation to assess whether the appellant possessed sufficient maturity of understanding to consciously participate in the commission of the offence and whether he had any independent motive or interest to join the absconding co-accused in perpetrating such a

grave act. It is true that the prosecution has produced ocular evidence and that the matter was promptly reported, but it is equally true that the peculiar circumstances of this case, especially the age of the appellant and the alleged absence of any prior enmity on his part, demand closer judicial examination. This Court is required to examine how the incident originated, what transpired immediately before the occurrence, and in what manner the complainant claims to have witnessed the episode. The careful reading of the FIR and the statement of the complainant reveals that an altercation took place between the deceased and the absconding co-accused, who happens to be the father of the appellant. The prosecution has not alleged any pre-existing blood feud or longstanding hostility between the appellant and the deceased. In the absence of such background hatred, it becomes difficult to comprehend as to what prompted a minor of tender age to arrive at the spot duly armed and to actively participate in the occurrence. It is not the prosecution case that, after the

altercation, the accused went inside their house, procured weapons, and thereafter returned to the spot to execute the crime, rather the prosecution version suggests a sudden quarrel followed by firing. In such circumstances, the presence of the appellant at the scene, armed with a firearm and sharing a common intention with the principal accused, becomes highly doubtful. Had there been an established history of blood feud between the parties, the presence of all accused at the spot, duly armed, could have been a natural and probable consequence however, when no such allegation has been brought on record, and when the appellant admittedly was a juvenile of about sixteen years at the relevant time, the prosecution was under an enhanced burden to establish his conscious participation and specific role in the commission of the offence.

The record further does not show any independent motive attributable to the appellant. In the absence of proof regarding his interest in the alleged motive, his alleged presence, duly armed, and firing at the

deceased cannot be accepted merely on the basis of generalized allegations. The mere fact that the complainant has nominated a father and two real sons does not, by itself, establish collective culpability unless supported by convincing, independent, and consistent evidence. Where material facts appear to have been withheld or suppressed and where the prosecution version does not satisfactorily explain the role, conduct, and participation of a juvenile accused, this Court is duty-bound to exercise heightened caution while assessing criminal liability. In such circumstances, the benefit of doubt, if reasonably arising from the record, must necessarily go to the accused.

9.The Investigating Officer visited the place of occurrence and, on the pointation of the complainant and eye witness, prepared the site plan. During spot inspection, empties were initially collected from three different locations attributed to the respective accused.

However, surprisingly, all such empties were forwarded to the firearms expert collectively, resulting in a single composite report.

Consequently, no separate forensic opinion was obtained with regard to empties allegedly recovered from the specific points attributed to individual accused persons. The combined ballistic report merely indicates that the empties were fired from different weapons, and such a report may establish that more than one firearm was used in the occurrence, but it fails to connect any specific weapon or empty with any particular accused. The Investigating Officer could not offer any plausible explanation as to why the empties, despite being recovered from distinct locations, were merged and dispatched as a single lot. This lapse weakens the prosecution case, particularly in relation to the appellant, whose alleged role of firing remains uncorroborated by independent forensic linkage. It is settled law that although expert opinion carries evidentiary value, but it cannot, by itself, be made the sole basis for fixing criminal liability, especially where multiple accused are involved and the forensic process suffers from procedural deficiencies. In the present case, the

manner in which ballistic evidence was handled, the same excludes the possibility of conclusively establishing that three separate weapons were independently used by three distinct accused. The site plan further depicts that the place of the complainant situated adjacent to the house of the accused. The complainant and his witnesses stated that at the time of occurrence they were engaged in routine activities at their business premises. In such circumstances, the possibility cannot be ruled out that the absconding accused emerged from the nearby house, an altercation ensued between him and the deceased, and the unfortunate incident followed. The record remains silent as to the immediate cause of the altercation. Although the complainant mentioned that a quarrel had taken place, but he failed to explain what triggered the dispute, what provoked the absconding accused, or what specific motive prompted the firing. It is only after a considerable lapse of time that one witness, namely Sarfaraz, surfaced and recorded his statement under Section 161

CrPC, wherein he introduced a new dimension of alleged animosity based on personal relationship and suspicion thereof. According to this belated version, the absconding accused allegedly suspected the complainant of facilitating the deceased in a family-related dispute. The delayed appearance of this witness seriously dents the credibility of this alleged motive. Had such motive genuinely existed, it would have naturally surfaced either at the time of FIR registration or soon thereafter. The unexplained delay in recording this statement renders it unsafe to rely upon without independent corroboration.

10.In the present case, motive bears particular importance because the appellant was admittedly a minor of about sixteen years at the time of the occurrence. Where involvement of a juvenile is alleged in a grave offence, the prosecution is under an obligation to establish not only presence but also conscious participation, shared intention, and personal interest in the alleged motive. The prosecution has failed to show that the

appellant had any independent grievance against the deceased or that he shared the alleged motive attributed to the absconding co- accused, namely his father. The version of the complainant suggests that the altercation, if any, took place between the deceased and the father of the appellant. There is no convincing material on record to establish that the appellant was annoyed, provoked, or driven by the same motive, so as to actively participate in the commission of the offence. In view of these attending circumstances, this Court is constrained to examine with greater caution whether the appellant can legitimately be connected with the alleged motive and whether the prosecution has succeeded in proving that he shared the same criminal intent as the principal accused. True that absence of motive, by itself, is not always fatal to the prosecution case but equally true that where motive is alleged as the sole cause of the occurrence, its benefit, if found doubtful, would ordinarily extend to all accused persons alike. However, the present case carries peculiar features which

necessitate an individualized examination of motive, particularly with regard to the role attributed to the present appellant. In the instant matter, the prosecution was required not only to establish the alleged motive but also to show its nexus with the appellant, keeping in view his age and status at the time of occurrence. It is not disputed that the appellant was approximately sixteen years of age at the relevant time and thus a juvenile. The question which therefore, arises is whether a minor of such tender age, possessed the requisite maturity of understanding and independent interest to consciously participate in the commission of such a grave offence. The motive advanced by the prosecution is attributed to the absconding co-accused, namely the father of the appellant. According to the version of the complainant, the occurrence was preceded by a sudden altercation between the deceased and the said absconding co-accused. This factual position excludes the existence of any pre-existing blood feud between the parties. Had there been

a longstanding hostility or premeditated design, the natural course would have been that all accused would have appeared at the spot duly armed and prepared. The prosecution record, however, does not support such a scenario. The site plan further reveals that the place of complainant and the deceased was situated in close proximity to the house of the accused. If the motive later introduced through the belated statement of Sarfaraz were genuine, the deceased would have been exposed to repeated opportunities of attack prior to the day of occurrence however, no such prior incident was ever alleged. This further reinforces the inference that the occurrence was not the result of any preplanned collective action, rather stemmed from a sudden quarrel between the deceased and the absconding co-accused. In such circumstances, the presence of the appellant at the spot, duly armed and sharing a common intention, becomes highly doubtful.

The record does not show that the appellant had any prior knowledge that such an altercation would occur or that he had procured

any weapon in anticipation thereof. The prosecution has also failed to establish any independent motive attributable to the appellant which could have driven him to participate in the offence. When these material circumstances are cumulatively examined, they substantially exclude the possibility of the involvement of the appellant in the commission of offence. The prosecution has not been able to link the appellant with the alleged motive, nor has it been able to show that he shared the same intent as the principal accused, rather, it appears that the appellant has been implicated on account of his relationship with the absconding co-accused.

Moreover, the juvenility of the appellant carries decisive importance. His age, coupled with the absence of independent motive and lack of evidence regarding premeditation or preparation on his part, creates a serious doubt about his conscious participation in the occurrence. In such a situation, it would be unsafe to attribute criminal liability to him on the basis of generalized allegations. A similar

question came up for consideration before the Hon’ble Supreme Court of India in case titled “Raju & Anr. v. State of Haryana (2010) 3 SCC 235, wherein the Court examined the applicability of common intention and motive of adult co-accused to a juvenile. The Supreme Court underscored that, in such cases, due regard must be had to the age, mental maturity, and level of understanding of the juvenile at the time of the occurrence. In the said case, the Court observed that Appellant No.1, Raju, was a juvenile and was below 17 years of age on the date of the incident; therefore, his case was required to be dealt with strictly in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.

Although it was contended by the prosecution that the appellants were aware that the adult co-accused were armed with deadly weapons, the Court found that the evidence on record did not substantiate such an assertion. The role attributed to the juvenile, namely chasing and holding the victim, was held to be more in the nature of a spontaneous reaction rather than

participation in any pre-conceived or premeditated plan. The Supreme Court ultimately held that, in the absence of cogent evidence establishing common intention, the conviction of the juvenile under Section 302 IPC read with Section 34 IPC could not be sustained. The judgment clearly lays down that the motive or common intention of adult co- accused cannot be mechanically imputed to a juvenile, and that the juvenile’s conduct must be independently assessed in light of his age, mental maturity, and capacity to form the requisite intention. Applying the above principle to the present case, the accused herein, being a minor at the relevant time, lacked the requisite maturity and independent intention to share the alleged motive of the adult co-accused. Consequently, no criminal liability under the same penal provision applicable to adults can lawfully be fastened upon him.

11.In view of the foregoing

discussion, this Court is persuaded to hold that the charge against the appellant has not been

proved beyond reasonable doubt. The prosecution has failed to substantiate his involvement through reliable and independent evidence. The combined effect of his age, the absence of any established motive attributable to him, and the sudden nature of the incident disentitles the prosecution from securing a conviction against the appellant. Accordingly, this Court finds that the circumstances, the manner of occurrence, and the overall prosecution narrative do not support the alleged participation of the appellant in the tragic incident. It was argued that once this Court arrives at the conclusion regarding the innocence of an accused, the benefit thereof should be extended in absolute terms and that if the testimony of prosecution witnesses is found to be false on one aspect, the entire testimony should be discarded by applying the maxim falsus in uno, falsus in omnibus. We are not persuaded by this contention. It is well settled that the doctrine of falsus in uno, falsus in omnibus is not a rule of universal application in our criminal jurisprudence. The

Court is not bound to reject the entire prosecution case merely because a part of the evidence is found to be unreliable, rather the settled approach is to separate the sifting of grain out of chaff and to accept that portion of the evidence, which inspires confidence, while discarding the unreliable part. In the present case, the presence of the prosecution witnesses at the scene of occurrence cannot be lightly doubted, nor is this Court inclined to undertake a sweeping assessment of their credibility, particularly where such an exercise may prejudice the case against the co-accused whose trials or proceedings stand on a different footing. The determination before this Court is confined to the individual liability of the present appellant. The peculiar circumstances surrounding the appellant, particularly his juvenility at the time of occurrence, his level of maturity, the absence of an established independent motive, and the fact that the incident appears to have emanated from a sudden altercation between the deceased and the absconding co-accused, are the decisive

factors which weigh with this Court. Once it is admitted on record that the appellant was approximately sixteen years of age at the relevant time and was legally a juvenile, this Court is under an obligation to assess his role, participation, and involvement independently, and not to mechanically extend collective liability. The benefit extended to the appellant, therefore, is not at the cost of demolishing the entire prosecution story, but is founded upon his distinct legal status and the peculiar factual substance applicable to him alone. This Court is thus, persuaded to hold that the prosecution has failed to prove the charge against the appellant beyond reasonable doubt. Neither has the alleged motive been successfully connected with him, nor does the evidence establish that he possessed the requisite maturity, intent, or conscious participation to be held criminally liable for the offence.

12.It is true that the appellant

remained absconding for a considerable period.

However, abscondence, by itself, is not conclusive proof of guilt. In the peculiar facts

of the present case, where the appellant was of tender age and was admittedly facing a grave accusation, his conduct of remaining away cannot be treated as a determinative circumstance to fasten criminal liability, particularly when the substantive evidence fails to establish his involvement. Reliance can be placed on the judgment of the Apex Court titled “Fateh Khan Versus The State and others” (2025 SCMR 1408), which reads as follows: -

“Abscondence per se is not a proof of the guilt of an accused person but it can be taken as corroborative piece of evidence. In absence of trustworthy and confidence inspiring substantive incriminating evidence, conviction cannot be solely based upon abscondence of an accused. Since the ocular testimony of the complainant Khalid Mehmood and PWs Tanveer Aslam and Muhammad Sajid Akhtar has been disbelieved by this Court in the instant appeals therefore, in view of the above principles, the

conviction of the appellants cannot be based on abscondence alone.”

13.The cumulative effect of the

attending circumstances leads us to the irresistible conclusion that the prosecution has not succeeded in proving its case against the appellant. The learned trial court fell into error in holding the appellant guilty without adequately addressing the crucial aspects relating to his age, motive, and individualized role. The impugned judgment, to the extent of the appellant, therefore, suffers from legal and factual infirmities and calls for interference.

Consequently, the instant criminal appeal is allowed. The impugned judgment, to the extent of the appellant, is set aside. The appellant is acquitted of the charge and shall be released forthwith, if not required to be detained in any other criminal case.

14.Now diverting to the Criminal

Revision No. 73-P/2025 titled “Ibrahim vs The State & another”, which has been filed by the complainant for enhancement of the

awarded sentence, as the accused succeeded in earning acquittal and the impugned judgement is set aside, so the instant criminal revision has lost its utility, the same is dismissed as such.

Announced

JUDGE

JUDGE

*Muhammad Fiaz* *D.B* Hon’ble Mr. Justice Sahibzada Asadullah, J Hon’ble Mr. Justice Dr. Khurshid Iqbal, J