Aimal Khan etc. VS The State etc.

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

Crl. Appeal No.52/2023 Aimal Khan and others Versus The State

Jail Appeal No.35/2023 Zabi Ullah Versus The State

Jail Appeal No.36/2023 Aimal Khan Versus The State

Jail Appeal No.37/2023 Zabi Ullah Versus The State

Jail Appeal No.38/2023 Mustafa alias Farid Versus The State

Jail Appeal No.39/2023 Mustafa alias Farid Versus The State

Jail Appeal No.40/2023 Aimal Khan Versus The State

Crl. Appeal No. 52/2023 and connected matters.

Murder Reference No.01/2023

The State Versus Aimel Kham and others

Appellants by : Mr. Muhammad Suleman Advocate.

Victim/Injured : Rana Abid Nazir Khan Advocate.

Person by

State by : Mr. Adnan Ali, Deputy District Public Prosecutor. Mr. Abdul Qadir, SHO/IO, with record.

Date of hearing : 30-9-2026.

SHAHRUKH ARJUMAND, J.- Through the titled three criminal appeals under Section 410 of the Code of Criminal Procedure, 1898 (hereinafter referred to as “Cr.P.C.”), the appellants, Aimal Khan, Zabihullah and Mustafa alias Farid, impugn judgment dated 21.01.2023 (“Impugned Judgment”) passed by the learned Additional Sessions Judge, Islamabad-West (“Trial Court”) whereby they were convicted and sentenced, in the manner reproduced below, in FIR No.85/2020, dated 26.06.2020, registered under Sections 302, 394, 337-F(i), 337-F(ii), 337-F(v) and 412 of the Pakistan Penal Code, 1860 (“PPC”) at Police Station Shamas Colony, Islamabad:- “In sequel of the above discussion, the prosecution remained successful to establish its case beyond shadow of doubt. Consequently, accused Aimal, Zabihullah and Mustafa found guilty and thus convicted and sentenced as under:

(i)Under Section 396 PPC To death with a fine of Rs.200,000 each or, in default thereof, to further suffer simple imprisonment for six months.

(ii)Under Section 302(b) PPC To death with a direction to pay an amount of Rs.500,000 each to the legal heirs of the deceased and, in default of payment of compensation, to undergo simple imprisonment for six months.

(iii)Under Section 337-F(i) PPC, daman of Rs.100,000 one lac rupees each and, in default, to be kept in jail and treated as simple imprisonment until they pay the same.

(iv)Under Section 337-F(ii) PPC, daman of Rs.100,000 one lac rupees each and, in default, to be kept in jail and treated as simple imprisonment until they pay the same.

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(v)Under Section 337-F(v) PPC, daman of Rs.100,000 one lac rupee each and, in default, to be kept in jail and treated as simple imprisonment until they pay the same.

(vi)Under Section 337-A(i) PPC, daman of Rs.50,000 fifty thousand rupees each and, in default, to be kept in jail and treated as simple imprisonment until they pay the same.

(vii)Under Section 412 PPC, to rigorous imprisonment for six years each and to pay a fine of Rs.500,000 (five lac) each and, in default, to serve simple imprisonment for three months.”

Murder Reference No.1 of 2023 has been forwarded by the learned Additional Sessions Judge under section 374 Cr.P.C. for confirmation of the sentence of death awarded to the appellants.

2.Although the case of the prosecution is multi-dimensional, we will start with the version narrated in the FIR. FIR (Exh.PG) stood registered on the complaint (Exh.PG) of Atesham Ullah, LHC/7988 (PW-17). He alleged that he was serving in the ICT Police as LHC, posted at Police Station Shahzad Town. On 26.02.2020, when he was returning on foot after meeting his friend, Sher Shah, LHC/3675, MT Headquarters, he was proceeding towards Kashmir Highway at about 7:24 p.m. When he was about 50 to 60 steps away from the Kashmir Highway signal, he saw a dark grey Suzuki Alto, bearing registration No.FZ-503, coming from the side of Sabzi Mandi. It was intercepted by a white Honda vehicle, having tinted windows, whose registration number was not visible. Three persons alighted therefrom and started firing, upon which Traffic Inspector Muhammad Aslam, in order to foil their attempt, fired two shots. One of the assailants, having a fair complexion and a strong build, whom the complainant could identify, fired at Inspector Muhammad Aslam, causing him injuries. The other injured persons also came out of the Alto car. The accused persons took the vehicle and fled along Kashmir Highway. The injured were shifted to PIMS Hospital in an official vehicle. The complainant alleged that he could identify all the accused persons. In the FIR, the complainant stated that the unknown assailants have committed murder of the deceased whereas injured the other persons. Upon receipt of information regarding the commission of the offence, Sohail Nasir, S.I. (PW-13), reached the emergency department of PIMS Hospital along with Jaffar Anjum (PW-30)) and Muhammad Asif (given up). Injury statement of the injured was prepared and handed over to CMO, PIMS. The injured was unable to record their statements. In the meanwhile, officials of SHIU reached the hospital. The complainant’s verbal statement was reduced into writing, and

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the complaint was transmitted to the police station through Jaffar Anjum (PW-30) for registration of the case.

3.Charge against the appellants was initially framed on 01.06.2021. It was amended on 27.09.2022 and again on 21.01.2023. The prosecution examined total 30 witnesses and produced documentary evidence to prove its case, the gist whereof is as follows.-  PW-1, Farasat Faheem, HC/7345, deposed that on 26.06.2022, he was posted as Moharrar. On the same day, the investigating officer handed over to him one sealed parcel, said to contain blood-stained cotton, for placement in the malkhana. On 30.06.2022, he handed over the said parcel to the investigating officer for onward transmission to PFSA, Lahore.

 PW-2, Mehmood Khan, S.I., deposed that he was in charge of the arms store at Police Lines Headquarters and had issued one official pistol, 30 bore, bearing No.18014291, along with 10 live bullets, to the deceased.

 PW-3, Naeem ul Hasnain, ASI, deposed that on 17.10.2024, he was posted as Moharrar, CIA, when Abdul Qadir, S.I. (PW), handed over to him two parcels. One parcel was said to contain the weapon of offence, a pistol 30 bore, recovered from appellant Aimel Khan, and the other parcel was said to contain a 9 mm pistol recovered from appellant Mustafa. He further added that on 26.10.2022, the referred parcels were handed over to Sajjad Ahmed, C/7045 (PW-23), for onward transmission to NFSA. During cross-examination, he admitted that the parcels remained in his custody for nine days and that the delay was attributable to the investigating officer.

 PW-4, Ghulam Mustafa, C/4507, stated that on 14.09.2020, on the direction of Iqbal, S.I., he collected a certified copy of the identification from the court of the Assistant Commissioner.

 PW-5, Shafqat Hussain, C/8440, deposed that on 26.06.2022, he was posted at MT Headquarters, Islamabad, as a driver. By chance, at about 7:35 p.m., he was proceeding from Police Lines to G-10 in an official Mazda truck, bearing registration No.GV-221. When he reached the H-11 signal, he saw Muhammad Aslam Gul, Sub- Inspector, severely injured and in a critical condition, along with other injured private persons. The private injured persons were taken in a private car, while he, along with other police officials, placed Muhammad Aslam Gul, Sub-Inspector, in the official Mazda vehicle, bearing registration No.GV-221. He accompanied him while taking him to the hospital. During cross-examination, he reiterated that he was driving the vehicle bearing registration No.GV-221 and that the private injured persons were taken to the hospital in a private vehicle.

 PW-6, Dr. Farrukh Kamal, MLO, PIMS, Islamabad, deposed that he was on duty on 26.06.2026, when he conducted an autopsy on the dead body of the deceased, Aslam Gul. This witness mentioned the time of conducting the postmortem as 10:00 p.m. on the said date. The symptoms observed before death were: “Brought in gasping

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condition. Resuscitation was done but he could [not] revive.” The details of the injuries sustained by the deceased were as follows:

(i)Entry wound, 1 × 1 cm, circular inverted margins, blood-stained, 17 cm from the armpit, 31 cm from above and 27 cm from the midline, on the right lateral aspect of the chest.

(ii)Exit wound, 1.5 × 1.5 cm, irregular inverted margins, blood-stained, 32 cm from the mid line, 28 cm from above and 11 cm from the armpit, on the left lateral aspect of the chest.

In the opinion of this witness, the deceased died due to a firearm injury, which caused rupture and damage to the left lung and liver, resulting in haemothrax. Two to three litres of blood drained caused death. All injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The probable time between injury and death was mentioned as approximately 1⁄2 to 01 hour, and between death and postmortem as approximately two to three hours. This witness prepared the postmortem report (Exh.PA).

Apart from the autopsy, this witness examined Yusuf, the injured, who sustained the following injuries:

(i)Entry wound, 1 × 1 cm, circular, inverted margins, blood-stained, on the posterior aspect of the left thigh. No exit wound could be seen on X-rays.

(ii)Grazed wound, 4 × 2 cm, on the left side of the abdomen, below the lower border of the chest, in mid clavicular line.

The injuries were classified as “badia” and “damia” and were concluded to have been caused by a firearm. In respect of this injured, MLR No.221 (Exh.PC) was tendered in evidence.

This witness also examined the injured, Saif ur Rehman, who sustained Shuja-e-Khafifa He also examined the injured, Humayun, who sustained the following injuries:

(i)Entry wound, 1 × 1 cm, circular inverted margins, blood-stained, on the lateral aspect of the left thigh.

(ii)Exit wound, 1.5 × 1.5 cm, irregular inverted margins, blood-stained, on the medial aspect of the left thigh, with fracture of the femur bone.

(iii)Entry wound, 1 × 1 cm, circular inverted margins, blood-stained, on the medial aspect of the upper part of the right arm.

(iv)Entry wound, 1.5 × 1.5 cm, irregular inverted margins, blood- stained, on the lateral aspect of the right arm.

(v)Grazed wound, 2 × 1 cm, on the lateral aspect of the chest, first caused graze wound on the chest.

(vi)Wrist drop of the right hand.

As per this witness, injuries Nos.1 and 2 were classified as “Hashima”, injury No.5 as “damia”, and injuries Nos.3, 4 and 6 as “Itelafe Uzu”.

During cross-examination, this witness stated that the deceased was brought to the hospital at 7:40 and was in a gasping condition. In such a condition, the injured person is unable to speak. He further stated that a person who receives a bullet injury to the chest would be unable to speak.

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 PW-7, Muhammad Yusuf, ASI, deposed that on 26.06.2020, after receiving information regarding the commission of the offence, he, along with Akhtar Hussain, C/6657, reached the place of occurrence and secured it. Ashiq Shah, Inspector (PW-28), collected blood through cotton from the place of occurrence, which was taken into possession through recovery memo (Exh.PD). He further stated that Ashiq Shah, Inspector, also collected five empties of a .30 bore pistol (Exh.P1 to Exh.P5) and three empties of a 9 mm pistol, which were sealed and taken into possession through recovery memos (Exh.BE and Exh.BF), respectively.

During cross-examination, he admitted that the place of occurrence was two kilometers away from the place where the team was deputed for patrolling. He further admitted that he did not see the deceased or the injured persons at the place of occurrence. He disclosed that the empties were scattered at the place of occurrence. The empties of the .30 bore pistol were lying at one place, while those of the 9 mm pistol were lying at another place. The distance between the empties of the .30 bore pistol and those of the 9 mm pistol was four to five feet.

 PW-8, Muhammad Akbar, ASI, deposed that on 26.06.2021, he was posted at the AVLC. On the same day, he, along with Gulzar Ahmed, ASI, and Muhammad Ramzan, HC/6714, went for personal work to G-10 Markaz in a Honda City vehicle bearing registration No.5687. On their return, when they reached the Police Lines signal at about 7:24 p.m., they heard firing. They saw four young persons, three of whom were present in court, aged about 45 to 35 years firing. During the occurrence, one of the four persons, wearing a whitish shirt, fired directly at the traffic sergeant, namely Muhammad Aslam Gul, deceased, hitting him in the chest. The assailants made the passengers alight from the Suzuki Alto and fled after snatching the vehicle. On 11.10.2024, during the identification parade, he identified the appellants. He, for the first time, assigned the role of firing directly at the deceased to Aimel Khan, appellant, due to which the deceased died.

During cross-examination, he disclosed that he went to G-10 Markaz to have the bumper of his personal Honda City vehicle repaired. He stated that he was posted at the Anti-Vehicle Lifting Cell but had not produced any duty attendance register before the investigating officer. He further took a conscious stance that, although he was on leave on the day of the occurrence, he had marked his attendance in the duty roster. He admitted that he did not mention the presence of Ahtisham-PW at the place of occurrence in his statement under Section 161 Cr.P.C. He further admitted that the occurrence took place at a distance of 50 paces from where he was standing. He showed ignorance as to whether the appellants had raised any objection before him regarding their photographs or videos having been shown to the witnesses before the identification parade. He further admitted that he, along with Gulzar, ASI, and Ramzan, HC, remained at the place of occurrence and did not accompany the injured to the hospital.

 PW-9, Gulzar Muhammad ASI, deposed that on 26-06-2021, he, along with Muhammad Akbar, proceeded to G-10 Markaz in a Honda City vehicle. On their return, they witnessed the occurrence. He also testified that Aimel Khan was the first person who fired the fatal shot at the deceased, who succumbed to his injuries. He further testified that on 11.09.2024, he correctly identified the appellants during the identification parade.

During cross-examination, he disclosed that they left AVLC for G-10 Markaz at about 5:00 p.m., contrary to the statement of Muhammad Akbar-PW, who

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stated that they left AVLC at 4:00 p.m. He further stated that they left G-10 Markaz at about 7:10 p.m.

 PW-10, Muhammad Ramzan, was the witness who, along with Muhammad Akbar, ASI, and Gulzar, ASI, visited G-10 Markaz for personal work and witnessed the occurrence. He also testified regarding the identification parade, during which he identified the appellants. During cross-examination, he stated that he was present at a distance of 25 paces from the place of occurrence, on the parallel road.

 PW-11, Muhammad Akram, ASI, deposed that on 26.06.2020, he registered the FIR on the complaint brought by Jafar Ahmed-PW.

 PW-12, Aamir Shahzad, deposed that on 27.06.2020, he visited the crime scene and, on the pointation of Ahtesham Ullah Saleem (PW), took photographs and prepared the scaled site plan (Exh.PH). During cross-examination, he admitted that the presence of the Honda car was not mentioned at Point No.12 of the scaled site plan. He further admitted that he did not mention the distance between Points Nos.2 and 6 and could not tell the exact distance between the two points.

 PW-13, Sohail Nasir, Sub-Inspector, deposed that on 26.06.2020, he was posted as Duty Officer at Police Station Shams Colony, Islamabad. After receiving information regarding the commission of the offence at about 7:30 p.m., he proceeded to PIMS Hospital along with Jafar Ahmed, LHC/PW, and Muhammad Asif, where they found the dead body of the deceased. Three injured persons were also present there. He prepared the injury statement of injured Muhammad Yusuf (Exh.PK) and submitted an application for recording his statement (Exh.PL). He prepared the injury statement of Saqib ur Rehman (Exh.PM) and submitted an application for recording his statement (Exh.PN). He also prepared the injury statement of injured Humayun (Exh.PO) and submitted an application for recording his statement. He further deposed that the doctor declared the injured persons unfit for recording their statements. In the meanwhile, the verbal statement regarding the occurrence of Ahtesham Ullah Saleem, LHC/7908 (PW-17), was reduced into writing as a complaint (Exh.PQ) and forwarded through Jafar Ahmed, LHC/402, to the police station for registration of the FIR. He took into possession the official .30 bore pistol of the deceased (Exh.P2), along with four live bullets, through recovery memo (Exh.PS). He received information that the Suzuki Alto, which had been snatched from the injured, had been abandoned on Peshawar Road near the NHA office. Upon this information, Ashiq, Sub-Inspector, arrived at Peshawar Road near the NHA office. They examined the CCTV footage of NHA, wherein the accused persons were seen alighting from the Alto car and one person from the Honda car. They shifted a bag from the Alto car into the Honda car and fled, leaving the Alto car unattended. They collected the CCTV footage from the NHA office in a USB (Exh.P12).

 PW-14, Humayun was injured in the incident and was one of the passengers of the Alto car. He deposed that on 26.06.2020, at about 12:30 p.m., he, along with three other persons, left Mingora city and reached Mall Plaza Rawalpindi at about 4:30 to 5:05 p.m. They were carrying Saudi Riyals 808,350 and 14,500 Riyals (Amanat). They handed over the 14,500 Riyals (Amanat) to a person in the Mall Plaza. Out of the remaining amount, 4,080 Saudi Riyals were given to Federal Money Exchange, and approximately 300,000 Saudi Riyals were given to Universal Money Exchange and

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converted into Pakistani currency. Two of their companions, Yusuf Ali and Ahmed Khan, went to Federal Money Exchange on a motorcycle. Thereafter, they exchanged 50,000 Saudi Riyals and 30,000 dirhams in Raja Bazaar into Pakistani currency. They proceeded towards Kashmir Highway. The assailants snatched Rs.37,000,000/- and fled, by firing at the injured and the deceased. On 02.10.2020, he participated in identification proceedings.

During cross-examination, a discrepancy was pointed out between the amount stated in his testimony, Rs.37,000,000/-, and the amount mentioned in the complaint application, Rs.38,000,000/-. He had filed a complaint before the Ex-Officio Justice of the Peace, upon which an order was passed permitting him to be treated as complainant of the case. During cross-examination, this witness admitted that no bullet entered his body. He further stated that the appellant fired upon them while they were inside the care.

 PW-15, Yousaf Ali, entered the witness box and deposed almost the same facts as narrated by PW-14. He added that the accused persons who was near Humayun opened the door of his side and asked him to deboard the vehicle, upon which Humayun inquired from him the reason, the accused on it opened fire upon him and this witness.

 PW-16, Saif ur Rehman testified that one of the accused, who fired the shot, was not present in court. After receiving the injury, he sat down on the ground. He did not know which persons had started firing and only heard the sound of firing.

 PW-17, Ahtisham Ullah Saleem, on whose complaint the FIR was registered, narrated in his examination-in-chief almost the same facts as those incorporated in the FIR. He also identified the dead body of the deceased. He further testified that on 11.09.2020, he participated in the identification parade and correctly identified the appellants, assigning the specific role of firing the fatal shot at the deceased to Aimel Khan. He stated that accused Mustafa had fired shots at the persons present in the motorcar bearing registration No. FZ-503. During cross-examination, he disclosed that the other eyewitnesses, Akbar ASI, Muhammad Ramzan HC and Gulzar Ahmed ASI, were also present at the place of occurrence.

 PW-18, Muhammad Akhtar, HC/412, deposed that on 10.07.2020, while posted as Muharrar Malkhana, SIU Industrial Area, Farasat Fahim, HC/7345, on the instructions of Ashiq Hussain Inspector, handed over to him a sealed parcel, said to contain five empties of a .30 bore pistol and three empties of a 9 mm pistol, for onward transmission to NFSA. He delivered the parcel on the same day. He further deposed that on 12.07.2020, in his presence, Muhammad Yusuf-PW handed over one voucher (Exh.P-14) to Ashiq Shah Inspector, which was taken into possession through recovery memo Exh.PY. Ahmed Khan also handed over two vouchers to Ashiq Shah Inspector, which were taken into possession through recovery memo Exh.EC. Humayun handed over one voucher to Ashiq Shah Inspector, which was taken into possession through recovery memo Exh.K.

 PW-19, Muhammad Asad Hussain Chauhan, deposed that on 26.06.2020, after receiving information about the occurrence, he went to PIMS Hospital and identified the dead body of the deceased. During cross-examination, he disclosed that Ahtisham Ullah Saleem, LHC/7988 (PW-17) the complainant, is his real cousin and that the deceased, Aslam Gul SI, was the maternal uncle of PW-17. This portion of his

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testimony contains a significant disclosure, as throughout the proceedings, including the initial complaint, Ahtisham Ullah Saleem-PW concealed his relationship with the deceased and presented himself as a chance witness.

 PW-20, Riaz Ahmed, HC/2672, deposed that, during the relevant days, the deceased’s duty hours were from 3:00 p.m. to 11:00 p.m. at Police Lines, Kashmir Highway.

 PW-21, Mukhtar Ahmed, C/4492, deposed that on 17.10.2020, he was associated with the investigation of the instant case. During interrogation, Aimel Khan disclosed that he could recover a pistol allegedly hidden in the house of his brother-in-law, Zabihullah-accused. Thereupon, all three accused persons, Zabihullah, Mustafa and Aimel Khan, were brought to the police station and confined in the judicial lockup. Aimel Khan, while handcuffed, led the police party to the recovery of a .30-bore pistol (Exh.P-25) from beneath the bedding and handed it over to the investigating officer. Upon unloading the pistol, no cartridge was found in its magazine. He further deposed that, on the same day, accused Aimel Khan led to the recovery of Rs.7,000,000, out of which Rs.630,000 was allegedly his share of the amount looted in the instant case. On 19.10.2022, accused Ghulam Mustafa disclosed that he had purchased two vehicles from his share of the looted amount and could lead to their recovery from an under construction Plaza, I-8 Markaz. Pursuant to his disclosure, a white Honda Civic and a Suzuki Wagon R were taken into possession from the said place. On the same day, accused Zabihullah disclosed that he could lead to the recovery of a vehicle purchased from his share of the looted amount from the parking area of Abbasi Market, I-9/4. Pursuant to his disclosure, the said vehicle was taken into possession from the said place. During cross-examination, this witness admitted that the house from which the recovery was effected at the instance of accused Aimel Khan was not owned by him but belonged to accused Mustafa. He further admitted that, despite knowing that the house belonged to one of the accused, namely Mustafa, they did not search the entire house.

 PW-22, Amir Zaman, C/7229, deposed that on 17.10.2020, accused Ghulam Mustafa alias Fareed led the police party to the house of Muhammad Farooq (since proclaimed offender), and got recovered a 9 mm pistol and Rs.1,500,000. Upon completion of the recovery proceedings, the accused was returned to the lockup. On the same day, accused Zabihullah also led the police party to the house of Muhammad Farooq and got recovered Rs.820,000 and a 9 mm pistol. During cross-examination, this witness admitted that the house raided for the recovery of the incriminating material belonged to co-accused Farooq, since proclaimed offender.

 PW-23, Sajjad Ahmed, C/7445, deposed that on 07.10.2020, he collected copies of the identification parade proceedings from the office of the Assistant Commissioner. He was also a member of the police party and a witness to the recovery of the crime weapons and cash amounts at the instance of accused Aimel and Ghulam Mustafa. He further deposed that on 26.10.2020, he deposited two sealed parcels, said to contain 30 pistol and a 9 mm pistol, with NFSA. He also witnessed the recovery, at the instance of the accused, of a vehicle allegedly purchased from the proceeds of the crime.

 PW-24, Sidra Anwar, Assistant Commissioner, Shalimar, deposed that on 01.10.2020, she received an application for conducting an identification parade, which was accordingly scheduled for 02.10.2020. Under her supervision, witnesses Humayun, Saifur Rahman and Yusuf Ali identified the appellants.

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During cross-examination, she admitted that the handwriting on the identification memo was that of her reader. She further admitted that, before conducting the identification parade, she had no idea about the physical appearance, complexion, height or age of the accused persons. Accused Aimel had objected during the identification parade that the witness had already seen him at the C.I.A. staff premises and that his head and beard had been shaved. Despite this objection, she proceeded with the identification parade. She also admitted that the same set of dummies was reshuffled during the identification parades of the accused persons. She further admitted that witness Humayun had stated before her that two accused persons were armed with pistols and two with Kalashnikovs. She also admitted that the witness-Saif ur Rehman had stated before her that he had received a blow from the butt of a pistol, as a result of which he got fainted.

 PW-25, Abdul Qadir, Inspector, C.I.A., narrated in his examination-in-chief the proceedings conducted during the investigation, including the recovery of incriminating material, cash and vehicles allegedly purchased from the proceeds of the crime. During cross-examination, he admitted that the witnesses had described the offence as having been committed by four accused persons, whereas, according to his investigation, five persons had committed it. He further admitted that none of the witnesses had mentioned a fifth accused person. He was confronted with photographs (Exh.P-35/4) showing no bullet marks on the windscreen of Suzuki Alto bearing registration No. FZ-503.

 PW-26, Muhammad Abdullah Mahmood, Assistant Commissioner, deposed that on 26.08.2020, he was posted as Assistant Commissioner, Rural, Islamabad. He stated that on 11.09.2020, an identification parade was conducted under his supervision within the premises of Central Jail, Rawalpindi, wherein witnesses Muhammad Akbar, Muhammad Ramzan, Gulzar Ahmed and Ahtesham Ullah identified the accused persons.

During cross-examination, he admitted that eight dummies participated in the identification parade. The entries on the first and second pages of the identification memo were filled in by his Naib Court, Tahseen Ullah. He further admitted that the dummies were neither replaced nor reshuffled during the identification parades of the remaining accused persons, nor were their positions changed within their respective rows. He also admitted that the accused persons had objected that the witnesses had seen them at the police station and had taken their photographs and videos. He further admitted that Muhammad Ramzan had stated that four accused persons were present at the spot, whereas Ahtesham Ullah had attributed roles to three accused persons.

 PW-27, Muhammad Iqbal, SI, C.I.A., deposed that on 20.08.2020, the appellants, Aimel Khan, Zabihullah and Mustafa alias Farid, were produced before the Area Magistrate, for an identification parade at Adiala Jail, Rawalpindi. On 26.08.2020, the application for the identification parade was got marked by the ADCG, Islamabad, and sent to Adiala Jail. On 11.09.2020, witnesses Akbar ASI, Gulzar ASI, Constable Ehtisham and Constable Ramzan identified the appellants during the identification parade. During cross-examination, he disclosed that the faces of the accused persons were covered with cloth when they were produced before the Magistrate.

 PW-28, Ashiq Shah Inspector, deposed that on the day of occurrence, he was posted at Police Station Sabzi Mandi. Upon receiving information about the occurrence, he

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reached the hospital and took over the investigation from Sohail Nasir SI. He prepared an application for conducting the postmortem examination of the deceased, applications for recording the statements of the injured persons, and their injury statements. He also received 30 bore pistol from Sohail Nasir (PW-13). The dead body of the deceased was identified by his nephew, Asad, to whom it was subsequently handed over for funeral purposes. He proceeded with the complainant, Ahtesham, collected the empties, and then went to 26 Number Chungi, where the snatched motor vehicle was parked. The vehicle was taken into possession. He examined CCTV footage, which showed two persons transferring a cloth bag from the motor vehicle to another vehicle Honda City. He collected the footage on a USB. On 27.06.2020, he called the draftsman to prepare the site plan. He received the postmortem report of the deceased on 29.06.2020. He also visited Lahore to deposit the seized parcels, said to contain bloodstained cotton, with PFSL, Lahore. He received the medico-legal certificates of the injured persons and, on 10.07.2020, handed over the parcels containing empties of 9 mm and .30-bore pistols to Muhammad Akhtar HC for deposit with NFSA.

During cross examination this witness admitted that there were bullet marks on the wind screen of Alto vehicle. He also admitted that the MLC of injured-Saif ur Rehman is not in the prescribed proforma. He admitted the CCTV footage was not downloaded from the computer i.e. the original storage, rather the same was recorded through mobile phone from the screen of the computer and the said mobile phone was not taken into possession nor recorded statement of the person who recorded the footage. He also admitted as correct the statement that the physical features of persons were not visible in the recovered footage.

 PW-29, Muhammad Asghar, deposed that on 13.10.2021, accused Farooq and Zabeeh Ullah made disclosures regarding the recovery of the snatched amount. He witnessed the recovery of Rs.1,000,000 at the instance of accused Zabeeh Ullah and Rs.1,000,000 at the instance of accused Mustafa. Significantly, his examination-in-chief disclosed that, after the recovery at the instance of accused Zabeeh Ullah, the latter was taken to the vehicle, whereafter accused Mustafa was taken to the same house.

 PW-30, Jafer Anjum, LHC/402, deposed regarding the transmission of the complaint for registration of the FIR. He also witnessed the taking into possession of the vehicle through Exh.5 and the recovery of CCTV footage from the NHA office.

The prosecution gave up the witnesses Muhammad Asif, Akhtar Hussain and Hassan Ahmed as unnecessary witnesses and tendered the Firearm Reports Exh.PUUU/1-2, Exh.PVVV, and report of Forensic DNA and Serology Analysis as Exh.PWWW.

4.The appellants’ statements under Section 342 Cr.P.C. were recorded on 14.12.2022. The appellants neither opted to record statement under section 340(2) Cr.P.C. nor led defence evidence. Another statement of the appellants under Section 342 Cr.P.C. was recorded on 21.11.2023. They were all put a common question: “Why this case and why

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have the PWs deposed against you?” All the appellants responded as follows:

“I am innocent and have been falsely involved in this case. The instant case posed a serious challenge to the district administration of Islamabad, and they were facing criticism in the media. Therefore, the police were hunting for some suitable person so as to come out of the challenge. More than a month after the occurrence, I was picked up by the police in a desperate manner, whereafter I was confined and shifted from one place to another before my alleged date of arrest. The police tortured me and forced me to make a confession, which I refused straight away. I have nothing to do with this occurrence. I raised hue and cry, but no one gave ear to my voice. During the long period of illegal confinement, I was shown to the witnesses, and my photographs were also taken. The investigating officer, acting with mala fide and in connivance with other witnesses of the case, then introduced different pieces of evidence against me. From my alleged date of arrest until my shifting to jail for the purpose of the so-called identification parade, my identity was also exposed. Even inside the jail, no special measures were taken to keep me separately in any specific cell. The identification proceedings in this case were not conducted by any of the Magistrates personally, but by the clerical staff. I protested, but no one heard me. I also raised objections that I had been shown to the witnesses repeatedly, but my objections were not taken seriously. I am a law-abiding citizen and have no previous record of involvement or conviction in any other case. I have been made a scapegoat in this case.”

5.Learned counsel for the appellants and victim/injured person and the learned Prosecutor for the State have been heard at length and record perused with their able assistance.

6.The prosecution’s case is multi-dimensional. It begins with the registration of the FIR at 09:45 p.m. on 26.06.2020 regarding an occurrence that took place at 07:24 p.m. on the said date. The FIR was registered on the verbal statement of Ahtisham Ullah Salim, LHC/7988 (PW-17), who presented himself as an eyewitness, although his presence at the place of occurrence was by chance. In his statement/complaint (Exh.PQ), he did not name any other eyewitness but narrated the entire occurrence, stating that Muhammad Aslam Gul, Sub-Inspector (deceased), deputed at the H-11 signal, along with the passengers of an Alto car, had been shot by the appellants. Significantly, he stated in the complaint that Muhammad Aslam Gul, SI, had succumbed to his injuries. The complaint was transmitted to the police station through Jaffar Anjum, LHC/402 (PW-30), where Muhammad Akram, ASI, recorded the FIR. During cross-examination, PW-30-Jaffar Anjum stated that Sohail Nasir, SI, had handed over the complaint to him at about 8:50 p.m. for onward transmission to the police station. Sohail Nasir (PW-13), during cross- examination, admitted that he reached the hospital at 07:50 p.m., along with Jaffar Ajmal, LHC (PW-30). According to the medical evidence, Dr. Farooq Kamal (PW-6) stated that

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the deceased was brought to the hospital at 07:40 p.m. in a gasping condition. He estimated the probable interval between injury and death to be approximately half an hour to one hour. The testimony of Ahtisham Ullah Saleem, LHC (PW-17) is rendered doubtful, as his complaint neither mentioned that other eyewitnesses were present and had witnessed the occurrence nor disclosed that the deceased was alive when brought to the hospital. Instead, he stated directly in his complaint that the deceased had died. This gives the impression that, Ahtisham Ullah Salim, LHC (PW-17) reached the hospital, when the deceased was no longer alive. He also concealed his relationship with the deceased throughout his statements. It was revealed for the first time in the testimony of Muhammad Asad Hussain Chauhan (PW-19) that the deceased was maternal uncle of Ahtisham Ullah Salim-PW-17.

7.The second dimension of the instant criminal case is the entry of three other chance witnesses, namely Muhammad Akbar, ASI (PW-8), Gulzar Ahmed, ASI (PW-9), and Muhammad Ramzan, HC (PW-10). According to their testimony, they had gone to G-10 Markaz to have a Honda car repaired and, on their return, witnessed the occurrence near the H-11 signal. These witnesses were subsequently adopted by Ahtisham Ullah Salim, LHC (PW-17), who improved his version by stating that he had also seen these three witnesses at the place of occurrence. They subsequently supported one another’s versions by recording corroborative statements. Thus, the prosecution case was first viewed from the standpoint of Ahtisham Ullah Salim alone and then from that of these three witnesses, who were travelling together and were, by chance, present at the place of occurrence. These witnesses, except their oral testimony, did not produce any other witness or documentary i.e. invoice of the workshop, to prove their presence at the place of occurrence.

8.The Hon’ble Supreme Court in the case of “Mst. Sughra Begum and another v. Qaiser Pervez and others” (2015 SCMR 1142) has observed that a chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless

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justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.

9.Before relying upon the testimony of a chance witness, the Court must carefully scrutinize his explanation for being present at the place and time of occurrence, its support from available independent evidence, his actual opportunity to observe the occurrence, and the consistency of his account with his earlier statements and the surrounding circumstances. Here in this case, Ahtesham Ullah Saleem-PW firstly concealed his relationship with the deceased throughout his statements, his presence at the crime scene at the time of occurrence is further made doubtful, firstly due to mentioning of the deceased as “died” in the initial complaint and secondly due to delay in registration of the FIR and thirdly in order pose him as a true chance witness, he concealed his relationship with the deceased and showed his presence as a common police official at the crime scene by chance.

10.The other three witnesses Muhammad Akbar, ASI (PW-8), Gulzar Ahmed, ASI (PW-9), and Muhammad Ramzan, HC (PW-10) have also to be dealt with alike with Ahtesham Ullah Saleem-PW as they in their statements owned his version by recording corroborative statements. They in the first place failed to adduce any evidence supporting their stance of taking their vehicle to the repair shop at G-10 Markaz. Their version is destroyed by the initial statement/complaint of Ahtisham Ullah Saleem (PW-17) who did not mention any of them to be present at the crime scene.

11.According to the prosecution version, Ahtisham Ullah Salim, LHC (PW-17), was present at the place of occurrence and accompanied the deceased to the hospital. The police party, consisting of Sohail and Jaffar, also reached the hospital immediately at 7:50 p.m. Yet, no explanation was offered as to why the criminal case was registered with a delay of more than two hours. The unexplained delay in the registration of the FIR, coupled with the inconsistent status of Ahtisham Ullah Salim in the instant criminal case,

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raises doubts about the authenticity of his testimony. The Hon’ble Supreme Court in the case of “Mahmood Ahmed and others v. The State and another” (1995 SCMR 127) has observed the although in some circumstances the delay of two hours in registration of the FIR may not be of much importance, but in the referred case it was held to be of great significance, which as per the said judgment was attributable to consultation, taking instructions and calculatedly preparing report keeping names of accused open for such persons whom ultimately prosecution may wish to implicate. Here in this case, the presence of the Ahtisham Ullah Saleem is highly doubt due to his conducted noted above.

12.The third dimension of the case is from the standpoint of the injured witnesses/passengers of the Alto car, who gave a different account of the facts. On the day of the occurrence they proceeded from Mingora city to Islamabad. They were in possession of Rs.37 million, which the accused robbed after firing upon them and also snatched their vehicle. Humayun (PW-14) was one of the injured witnesses and passengers of the Alto car. During cross-examination, he stated that he had moved an application under Section 22-A Cr.P.C., upon which the court ordered that he be treated as the complainant in the case. He admitted that neither in his statement before the investigating officer nor in his examination-in-chief had he mentioned that the deceased was murdered after receiving bullet injuries. As regards his own account, he stated that he fell to the ground and heard the sound of firing but did not know who had received the gunshot. He further stated that he was not an eyewitness to Aslam/deceased receiving a bullet injury during the occurrence. He also stated that no bullet hit the vehicle. This portion of his statement is contradictory to statement of Ashiq Shah, PW-28 who stated that there were bullet marks on the front wind screen of Alto vehicle. The other injured witness in this group, Yusuf Ali, also narrated the fact of the robbery. He denied having seen the deceased being murdered during the occurrence. He also specifically denied being able to say whether Ahtisham Ullah, Constable, Akbar, ASI, Gulzar, ASI, and Ramzan, HC, were present at the crime scene. Saifur Rahman was also one of the injured witnesses and passengers of the Alto car. During cross-examination, he admitted that, owing to the pain caused by his injury, he could not regain consciousness to observe his surroundings. Despite their inability to observe things properly, these witnesses correctly identified the appellants during the identification parade.

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13.The FIR was registered against unknown accused persons. The prosecution’s evidence is silent as to how the appellants were implicated in this case as admittedly, the CCTV footage in which they were allegedly seen for the first time was not of such a quality so as to give clear identification of the appellants. The appellants were subjected to identification parade twice, firstly on 02.10.2020 when witnesses-injured persons Humayun-PW, Saif Ur Rehman-PW and Yousafi Ali-PW identified them and secondly on 11.09.2020 when Ahtisham Ullah Saleem-PW, Muhammad Akbar-PW, Muhammad Ramzan-PW and Gulzar Ahmed-PW identified the appellants.

14.The guidelines and safeguards prescribed by the Hon’ble Supreme Court in the case of “Kanwar Anwaar Ali, Special Magistrate: In matter of Crl. Misc. Application No.183/2019” (PLD 2019 SC 488), inter alia, require that the Magistrate supervising the identification parade verify the period, if any, for which the accused persons remained in police custody after their arrest and before the test identification parade, and incorporate this fact in his report of the proceedings; to guard against the possibility of a witness identifying an accused person by chance, the number of persons, or dummies, intermingled with the accused persons should be as large as possible with ratio between an accused person and the dummies should be 1:9 or 1:10 and this ratio is to be followed unless special, justifiable circumstances warrant a deviation from the procedure; where more than one accused person is to be subjected to test identification, the rule is that a separate identification parade ordinarily be held for each accused person. It has further been held that the Magistrate conducting the proceedings must take an intelligent interest in them and must not remain a silent spectator, bearing in mind at all times that someone’s life and liberty depend upon his vigilance and caution.

15.When examined against the safeguards prescribed in Kanwar Anwaar Ali’s case, supra, the identification parade held on 11.09.2020 suffers from material defects. Muhammad Abdullah Mehmood, Assistant Commissioner (PW-26), admitted that all the accused persons were seated simultaneously in different rows, departing from the requirement that a separate identification parade ordinarily be held for each accused person. Only eight dummies participated, falling below the prescribed ratio of one accused person to nine or ten dummies, without any special justification being disclosed. The positions of the accused persons and the dummies remained unchanged throughout

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the proceedings, and the dummies were neither shuffled nor replaced, which compromised the independence of successive identifications. Their ages and complexions were also not recorded, preventing verification of their resemblance to the accused persons. Furthermore, only Muhammad Akbar described the roles of the persons he identified, whereas the remaining witnesses identified the appellants without describing their respective roles. PW-26 also failed to record the row in which Aimel was seated when identified by Muhammad Ramzan. These defects, considered cumulatively, undermine the reliability of the identification proceedings and render it unsafe to rely upon them as corroboration of the prosecution’s ocular account.

16.Likewise, in the first identification parade conducted on 02.10.2020 under supervision of Sidra Anwar, Assistant Commissioner (PW-24) she admitted that neither she read the statements under section 161 Cr.P.C. of witnesses Saif ur Rehman and Yousaf nor had any idea of the physical appearance i.e. complexion, height and age of the accused persons before conducting identification parade. She also did not mention the ages, CNIC numbers and other details of the dummies. She admitted that the accused persons had raised objection that their photos/videos were shown to the witnesses before the identification parade. She admitted as correct the statement that accused Humayun had mentioned that the two accused persons were armed with pistol whereas two with Kalashnikov.

17.In addition to above, the recovery of incriminating material has been affected in the instant case in abnormal manner. The recovery of pistol 9mm at the pointation of the accused-Zabihullah was made from the house of Farooq-accused (since P.O.), whereas, he got recovered the cash amount of Rs.870,000/- from the house of co-accused Mustafa. Likewise, the accused Aimel Khan led to recovery of 30 bore pistol and Rs.700,000/- from the house of co-accused Zabihullah. Ghulam Mustafa accused also led to recovery of crime weapon and the cash amount from the house of Farooq-accused (since P.O.). All the recoveries were affected separately from the said house. It is difficult to reconcile that as to why the accused persons led to recovery of incriminating material from locations which were in control of co-accused. It is also beyond comprehension as to why the police party did not conduct search of the entire house of Farooq-co-accused (since P.O.) at once. Furthermore, the two accused persons led to recovery of vehicles said to have

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been purchased out of the crime proceeds. But the prosecution failed to bring on record the evidence of sale/purchase of the said vehicles and the documents relating their title/ownership so as to use the said articles to collect the accused persons with the commission of offence.

18.The impugned judgment contains two legal infirmities. Firstly, the trial court applied the principle “sifting the grain from the chaff” while convicting the appellants and secondly it awarded simultaneous convictions under section 302(b) PPC alongside section 396 PPC for the same alleged murder. Insofar as the first principle is concerned, the Hon’ble Supreme Court in the case of “Notice in pursuance of the order passed by this Court on 13.02.2019 in Criminal Appeal No.238-L of 2013 to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement made before the trial court in a criminal case”, reported as (PLD 2019 SC 527), has categorically declared that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit, which discontinued application of the principle “sifting the grain from the chaff”. Whereas, in the context of simultaneous convictions under section 396 PPC and 302(b) PPC for the same alleged murder, the Hon’ble Supreme Court in the case of Muhammad Ali and others v. The State (2022 SCMR 2024), has explained that Section 396 PPC is a self-contained provision imposing joint and co-extensive liability upon persons conjointly committing dacoity. Where five or more persons conjointly commit dacoity and any one of them commits murder during its commission, every participant becomes liable under Section 396 PPC, irrespective of who inflicted the fatal injury. The prosecution must establish each accused’s participation in the dacoity, but need not prove a separate overt act of murder or an intention or knowledge on the part of every participant that murder would be committed. Significantly, the High Court in that case maintained the conviction under Section 396 PPC while setting aside the separate conviction and sentence under Section 302(b) PPC, and the Hon’ble Supreme Court upheld that judgment. Applying the same approach, read with Section 71 PPC, where the same murder constitutes an integral part of the composite offence of dacoity with murder, the conviction and punishment should be governed by Section 396 PPC. Consequently, the separate conviction and sentence recorded by the learned trial court under Section 302(b) PPC was not warranted.

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19.The recovery of the crime weapons and their forensic comparison with the empties, notwithstanding its evidentiary significance, cannot by itself displace the material doubts arising from the ocular, medical and documentary evidence. The Hon’ble Supreme Court in the case titled “Naveed Asghar and two others v. State” (PLD 2021 SC 600) has highlighted the significance and evidentiary value of recovery of weapon and empties as under.-

“Even otherwise, recovery of weapon of offence is only a corroborative piece of evidence; and in absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case. That two out of three circumstances had not been proved while the third, namely, recovery of the blood stained handle of hatchet, that had been alleged to be weapon of offence, was insufficient to form the basis of a conviction.”

20.The Hon’ble Supreme Court in the case titled as "Muhammad Akram v. The State" (2009 SCMR 230), wherein it was held as follows:-

“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.”

21.In the case of "Muhammad Akram v. The State" (2009 SCMR 230), it was held as follows:-

“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”

22.Viewed cumulatively, it is concluded that, out of the four chance witnesses, three, namely Muhammad Akbar, ASI (PW-8), Gulzar Ahmed, ASI (PW-9), and Muhammad Ramzan, HC (PW-10), failed to establish their presence at the crime scene through reliable evidence. The presence of the first chance witness, Ahtisham Ullah Salim (PW- 17), also becomes doubtful owing to the delayed registration of the FIR, his failure to mention the presence of the other three chance witnesses, his omission to describe the

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condition of the deceased when brought to the hospital in his initial version and his failure to disclose his relationship with the deceased. The identification parades were conducted in violation of the safeguards laid down in Kanwar Anwaar Ali (supra). The original CCTV footage was not produced before the Court; the mobile phone on which the footage was captured was not taken into possession by the investigating agency; and the footage was not subjected to forensic examination to establish its authenticity. The recoveries attributed to one accused were effected from premises under the control of another co-accused. The prosecution case thus suffers from material infirmities. In the facts and circumstances of the instant case, it is unsafe to rely upon the prosecution evidence to maintain the convictions. The appellants are, therefore, entitled to the benefit of doubt as a matter of right.

23.For what has been discussed above, the titled appeals are ALLOWED and the Impugned Judgment dated 21.01.2023 passed by the learned trial court is hereby set aside. Consequently, the appellants are acquitted of the charge by extending them the benefit of doubt. They be released forthwith if not required to be incarcerated in any other case. The Murder Reference is accordingly answered in negative.

(INAAM AMEEN MINHAS) (SHAHRUKH ARJUMAND)

JUDGE JUDGE

Announced in the open Court on 12th day of October, 2026.

JUDGE JUDGE

Approved for reporting.

Tanveer Ahmed/*