Mst. Raya Bibi VS The State etc

Form No: HCJD/C-121

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

Criminal Appeal No.95 of 2024 Muhammad Naveed Vs The State & another

Jail Appeal No.113 of 2024 Muhammad Naveed Vs The State

Jail Appeal No.72 of 2024 Mst. Raya Bibi Vs The State

Appellants by : M/s Muhammad Ali, Abdul Qadir, Ali Raza and Malik M. Fiaz Kandwal, Advocates for appellant in Crl Appeal No.95/2024 and Jail Appeal No.113/2024, Advocates.

Mr. Abid Ali, Advocate for appellant in Jail Appeal No.72/2024.

Respondents by : M/s Barrister Adil Aziz Qazi, Barrister Malik Talha Ahmed, Muhammad Yaseen, and Danish Mumtaz, Advocates for respondent/complainant.

Mr. Adnan Ali, DDPP.

Mr. Tariq Mahmood, SI, P.S Kirpa, Islamabad.

Date of Hearing : 12.10.2026

SHAHRUKH ARJUMAND, J.-

1.These connected proceedings concern the convictions arising out of FIR No.08 dated 23.08.2022, offence under Sections 302, 436, 201 and 34

Crl. Appeal No.95/2024, Jail Appeal Nos.113

PPC, registered at Police Station Kirpa, Islamabad (“FIR”) relating to the death of minor Maira Bibi. Mst. Raya Bibi has challenged her conviction through Jail Appeal No.72/2024. Muhammad Naveed has challenged his conviction through Jail Appeal No.113/2024 and Criminal Appeal No.95/2024. The two proceedings instituted by Muhammad Naveed concern the same conviction and require a single determination of its legality. The prosecution evidence relied upon by the trial Court against both appellants concerns the same occurrence and is appraised together. The sufficiency of that evidence to establish the participation of each appellant is nevertheless considered individually.

2.By their respective judgments dated 29.01.2024, the appellants were convicted under section 302(b) PPC for the murder of Maira Bibi in furtherance of their common intention. Each was sentenced to imprisonment for life as ta’zir and directed to pay compensation of Rs.500,000 under section 544-A Cr.P.C. to the legal heirs of the deceased, with six months’ simple imprisonment in default. The benefit of section 382-B Cr.P.C. was extended to each appellant. The charges under sections 201 and 436 PPC were held unproved. In Raya’s case, the trial Court referred to her juvenility, the circumstantial evidence and absence of motive when deciding the sentence.

3.The prosecution case originated in the complaint of Ali Rehman, father of the deceased. According to the initial account, on 22.08.2022 his wife, mother and minor daughter attended a Quran-recitation gathering at the house of Arif, subsequently described as Muhammad Areeq alias Arif, at about 02:00 p.m. The child went upstairs. On noticing smoke and the smell of burning, the complainant’s wife went to the roof, where a cot and bedding were on fire. The child was not there. Mst. Raya was allegedly seen coming from the adjoining house under construction towards the road, where an unidentified boy was present. The child’s burnt body was subsequently stated to have been found in water in a kachcha hauz, an unfinished water receptacle inside that adjoining house under construction. The initial account concerns that receptacle; it does not describe a swimming pool or a rooftop tank.

4.The complaint resulted in registration of the FIR at 12:45 a.m. on 23.08.2022. During investigation the unidentified boy was alleged to be

Crl. Appeal No.95/2024, Jail Appeal Nos.113

Muhammad Naveed. The prosecution subsequently attributed an illicit relationship to the appellants and alleged that the child had seen them together, whereupon they killed her and attempted to conceal the occurrence. No witness professed to have seen the act of killing.

5.The investigation included collection of nail swabs, cigarette butts, a matchbox and ash; examination of the body; preparation of site plans; collection of telephone data; and procurement of forensic reports. The appellants denied the allegations. Their denials and explanations must be considered with the prosecution evidence, without shifting the burden of establishing guilt to either appellant.

6.Learned counsel for the appellants jointly contend that the impugned convictions are the result of misreading and non-reading of material evidence. They submit that the occurrence was unseen and that the prosecution failed to establish an unbroken chain of circumstances connecting either appellant with the killing. In particular, they rely upon the material contradictions concerning the date, time and place of collection of the nail swabs, their authentication through Ex.PB, the seal descriptions and the documentary trail of custody. They further submit that the mother did not see either appellant with the deceased on the roof; Muhammad Naveed was not named in the initial report and his subsequent identification was not satisfactorily established; and the alleged illicit relationship and rooftop encounter rest upon unproved information. Learned counsel also question the reporting delay, the uncertain account of extraction and handling of the body, the discrepancy between the tank-recovery account and the medical observations, and the trial Court’s treatment of the forensic conclusions. They argue that the presence of Naveed’s DNA on ordinary articles does not establish the time of their use or his participation in the killing, while the nail-swab mixture was overstated and its collection remained unreliable. They add that the trial Court supplied missing links by conjecture and that rejection of a defence explanation cannot discharge the prosecution’s burden. They accordingly pray that the appeals be allowed, the convictions and consequential sentences be set aside, and both appellants be acquitted by extending them the benefit of doubt.

Crl. Appeal No.95/2024, Jail Appeal Nos.113

7.Learned counsel for the complainant supports the conviction. It is submitted that the mother was naturally present, had no reason to substitute an innocent person for the offender, and saw Mst. Raya leaving the adjoining premises immediately after smoke was noticed. Counsel relies upon the combined effect of that sighting, the burnt cot, recovery of the body, the appellants’ conduct and the forensic findings. Minor discrepancies and the distress experienced by the family, it is argued, should not defeat otherwise convincing evidence. Dismissal of the appeals is sought.

8.The learned law officer for the State separately submits that the PFSA reports constitute admissible scientific evidence; Naveed’s DNA was found on the cigarette butts and matchbox, and the nail-swab mixture supports the involvement of both appellants. The custody and transmission witnesses affirmed that the parcels remained intact. The delay in submission, it is argued, is explained by the investigation’s transfer, and submission of scene exhibits preceded collection of reference samples. The State also relies on the ante-mortem burns and carbon monoxide detected in the spleen, and contends that the circumstances, read collectively, sustain the convictions.

9.Learned counsels for the parties have been heard and the record perused with their able assistance.

10.The central question is whether the prosecution has established the participation of each appellant beyond reasonable doubt. The death of a young child in such circumstances is deeply distressing. Its gravity requires a particularly careful appraisal; it cannot supply a missing evidentiary link.

11.In Naveed Asghar and two others v. The State (PLD 2021 SC 600), the Supreme Court explained the caution required in circumstantial cases and the distinction between a complete evidentiary chain and inference resting upon defective material. The Court also addressed material improvements, the limited role of medical evidence in establishing identity, and the prosecution’s continuing burden. The principles were reaffirmed in Rehmatullah and others v. The State (2024 SCMR 1782), particularly paragraph 5: every material link must be established, and a missing link operates in favour of the accused.

Crl. Appeal No.95/2024, Jail Appeal Nos.113

12.These principles do not mean that an unseen offence cannot be proved. Nor does every difference of recollection require acquittal. The distinction is between an incidental variation and a conflict affecting the identity, origin or reliability of an indispensable circumstance. That distinction is decisive here.

13.The mother, PW-7, described the child going to the roof, her own noticing smoke and burning, and her subsequent sighting of Mst. Raya coming from the neighbouring house towards the unpaved path. Muhammad Naveed was described as standing on that path. This is evidence of an alleged sighting after the child had gone missing. It is not an eyewitness account of either appellant killing her.

14.The distinction becomes clearer in cross-examination. PW-7 expressly acknowledged that neither she nor any other person saw the two accused on the roof. Her assertion in chief that the child had seen them together therefore did not rest upon her own observation. Seeing a person from a roof is plainly different from seeing that person on the roof in the company of the deceased. The observer was PW-7, the child’s mother; PW-8, the father and complainant, did not personally witness that sighting.

15.The sighting may excite suspicion, particularly as regards Mst. Raya, who was named from the outset. It does not, without reliable connecting evidence, establish that she had exclusive custody of the child or was its assailant. Nor does the presence of a man on an adjoining path establish his participation. The prosecution must prove the circumstances which convert proximity into criminal involvement.

16.Muhammad Naveed’s position requires additional caution because the initial account referred to an unidentified boy. PW-7 acknowledged that a neighbour supplied his name, but she did not disclose that neighbour’s name to police. Identification of the individual seen at the material time cannot be substituted by later information about a name. The absence of an identification parade is not applied as an inflexible rule; the material question is whether reliable evidence establishes that the appellant is the person originally seen, particularly where prior acquaintance is not demonstrated.

17.The alleged relationship and the assertion that the child witnessed an objectionable encounter were attributed to information from the locality. PW-

Crl. Appeal No.95/2024, Jail Appeal Nos.113

8 acknowledged that the relationship was not mentioned in the original complaint and that no independent witness appeared to establish it or the appellants’ presence together on the roof. The initial suspicion thus acquired an explanatory narrative which was not proved by anyone with direct knowledge of it.

18.Relationship to the deceased does not disqualify PW-7 or PW-8. Their evidence is assessed on its intrinsic worth. Equally, absence of a proved motive for falsely accusing the appellants does not dispense with proof. Neither grief nor sincerity can convert information received from unidentified persons into personal knowledge of an unseen event.

19.The reporting chronology also warrants examination. The gathering began at about 2 p.m.; the FIR was registered at 12:45 a.m. the next day. PW- 7 placed the child’s going upstairs some 15–20 minutes after arrival and her noticing burning another 5–10 minutes thereafter. It would therefore be inaccurate to describe 10 hours and 45 minutes as the exact delay measured from the fire, although the record plainly discloses a substantial interval.

20.PW-6 Muhammad Younas stated in cross-examination that he received information on returning home at about 6.30 p.m., when the body was already there. PW-8 stated that he received information at about 6–6.30 p.m., reached home at about 7–7.30 p.m. and went to hospital at about 8.45–9 p.m. The prosecution did not satisfactorily account for the body’s movements throughout the intervening period.

21.A family’s search, shock and transport arrangements can explain some delay. Delay is not treated here as an independent rule invalidating the prosecution. Its significance lies in the combination of an unseen killing, later identification of a previously unnamed person, subsequent introduction of a motive, and uncertainty about the body’s handling before the principal biological exhibit was obtained. The initial complaint’s preparation also requires accurate treatment. PW-3 described the complainant giving his statement to Iftikhar Ahmed ASI and described himself carrying it for registration. PW-4 acknowledged in cross-examination that Ex.PH was in Arshad’s handwriting and bore his own name rather than his signatures. Oral recording by an officer and physical writing by a constable can coexist; those

Crl. Appeal No.95/2024, Jail Appeal Nos.113

descriptions alone are not necessarily contradictory. Nevertheless, the absence of PW-4’s signatures and the differing accounts of dispatch must be assessed when testing the timing and authentication of the first account.

22.The record must also distinguish discovery of the body from its extraction. PW-7 said in chief that they found it in the tank; in cross- examination she described becoming unconscious when she picked it up and could not identify who shifted it home. PW-8 did not personally witness the occurrence or furnish a first-hand extraction account. PW-6 encountered the body at home. The existence of PW-7’s discovery assertion is acknowledged, but the evidence does not provide a clear and consistent account of the lifting of the body from water and its subsequent handling. In particular, the alleged kachcha hauz in the adjoining construction and the roof on which PW-2 placed the body are distinct locations. His evidence does not explain who moved the body from that water receptacle to the roof or when this occurred. Such an unexplained intermediate movement cannot be assumed merely to harmonize his sampling account with the initial report.

23.PW-2 Danish Farooq’s evidence is particularly important. In chief he stated that on 23.08.2022 he joined the investigation and secured two nail swabs from the deceased’s right hand with two sticks, which were handed to the investigating officer and sealed with the stamp MM. In cross-examination he placed the body on the roof of a house at the time of collection. He did not know its owner, did not remember when the investigating officer called him, and did not know whether the body was wet or dry.

24.The expression concerning wetness in PW-2’s cross-examination follows his description of the body. It cannot properly be recast as an affirmative statement by him that the hair was dry. His claimed roof-side sampling also does not establish that he recovered the body from the tank. These are separate propositions and must remain separate in evaluating his evidence.

25.His cross-examination records an afternoon visit at about 3 p.m., a stay of about 30 minutes, and a date printed as 22.08.2023. That year is inconsistent with the investigation’s chronology. A patent error of recording cannot, merely by itself, justify acquittal. However, even allowing a

Crl. Appeal No.95/2024, Jail Appeal Nos.113

correction of the year, the assertion that he obtained the samples from a body lying on a roof must be reconciled with the other witnesses’ hospital account. No coherent reconciliation is supplied by overlooking the date.

26.PW-4 Iftikhar Ahmed initially described the handing over of the nail swabs to the investigating officer. In cross-examination he expressly admitted that extraction did not take place in his presence; receipt and securing of the samples occurred at hospital. PW-5 Manzoor likewise stated that he did not know where the swabs were taken and that he received the sticks from Danish at hospital. Those witnesses could describe receipt and sealing but could not independently authenticate the disputed extraction.

27.There is a further conflict concerning Ex.PB. PW-4 stated that Danish affixed his signatures before him. PW-5, the officer who described preparing the memo, stated that Danish’s signatures were not affixed and only his name was written. This is not a difference about the colour of a vehicle or the approximate duration of a visit. It concerns the authentication of the document through which the critical specimen entered the evidentiary chain.

28.The learned trial Court, in paragraph 12 of each impugned judgment, itself recognized the conflict between collection at the spot and at hospital and described the collector’s claim as false. It nevertheless treated the discrepancy as minor and suggested that the collector was either being unnecessarily clever or extending an illusory favour to the defence. Neither explanation was established by evidence. Judicial speculation about a witness’s possible purpose cannot repair a missing foundational fact.

29.The further reasoning that the samples were taken before burial and that the interval was short did not answer the decisive question: from what body, at what location and under what documented safeguards were these particular sticks obtained? Subsequent sealing may protect what was placed in a parcel; it cannot retrospectively establish the origin of its contents.

30.PW-2’s training is not ignored. He described completing a two-month forensic course, stated that the kit was departmental, and denied lack of authority. His evidence is not rejected on an invented rule that police cannot collect a nail swab or that a medical officer alone must do so. The deficiency

Crl. Appeal No.95/2024, Jail Appeal Nos.113

is factual: the incompatible collection accounts, the uncertain time and place, and the contradictory authentication of Ex.PB.

31.PW-9 Dr. Amna Mumtaz obtained vaginal, anal and perianal swabs. She expressly stated that she obtained no other swab and had not been requested by the investigating officer to obtain one. Accordingly, her evidence does not verify the nail-swab collection. The fact that she did not herself take the nail swabs is not independently fatal; it assumes importance because the prosecution’s separate collector did not furnish a reliable and consistent account. The samples the doctor described were collected during the hospital examination. They do not authenticate a separate nail-swab procedure claimed by PW-2 at the roof. The relevant deficiency is the absence of a coherent account of that separate procedure, rather than the mere involvement of two different collectors.

32.The custody evidence requires equally balanced treatment. PW-10 Imran Raza and PW-11 Fakhar Abbas spoke to custody and transmission and stated that the parcels remained intact. It would be incorrect to hold that the prosecution produced no custody witness. However, their evidence must establish continuity of identifiable exhibits, not merely the later existence of sealed packages.

33.PW-5 described the nail-swab parcel with seal MM but the matchbox, cigarette butts and ash with seal MA. PW-10 described four envelopes received on 23.08.2022 as bearing seal MM, followed by three parcels bearing the hospital’s CMO seal. A different seal on a different parcel is not an irregularity. The difficulty is the failure satisfactorily to reconcile the description of the same group of scene exhibits across the collection and deposit stages. The different initials expressly appearing in PW-5’s description of the scene parcels are MA, rather than MS or ML. The medical parcels are separately described as bearing CMO. These descriptions do not establish that the nail-swab parcel itself bore a different seal; that question requires an exhibit-specific comparison with Ex.PB and the laboratory receipt. There is no basis to introduce an unverified MS, ML or BMS seal into this appraisal.

Crl. Appeal No.95/2024, Jail Appeal Nos.113

34.In cross-examination PW-10 acknowledged deficiencies in the documentary trail, including non-production to the investigating officer of the relevant register copy and uncertainty about packing materials and subsequent returned portions. These omissions would not, standing alone, prove tampering. Together with the disputed extraction and seal descriptions, however, they prevent the custody evidence from removing the foundational uncertainty.

35.The exhibits were submitted to PFSA on 29.08.2022 and reference samples on 01.09.2022. The prosecution is entitled to rely upon that sequence: it weakens an assertion that all samples must have been collected together after Naveed’s arrest. The defence’s allegation of deliberate manipulation is not treated as an established fact. Nevertheless, chronological separation of the reference samples does not resolve the inconsistent evidence about the source and collection of the questioned material.

36.The forensic report must be read according to its actual findings. It identifies a match between Naveed’s reference profile and profiles obtained from the cigarette-butt items 4A and 4B and matchbox swabs 5.1. It separately describes item6, the nail swabs, as a mixture of at least two individuals, with Muhammad Naveed and Raya Bibi not excluded as contributors. It supplies substantial relative-likelihood figures for their possible contribution.

37.Those mixture findings are significant scientific evidence and are not dismissed as a mere negative result. However, they are not accurately paraphrased as an unqualified finding that only the two appellants’ DNA was present on the deceased. Nor are the reported statistical comparisons the probability that either appellant committed the murder. Their evidentiary force depends on the authenticity and provenance of the tested exhibit and on the surrounding proved circumstances.

38.In Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 SC 362), paragraphs 6–10, the Supreme Court recognized DNA evidence and the statutory admissibility of PFSA reports, while emphasizing proper documentation, collection, packaging and preservation. Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), paragraphs 27–28,

Crl. Appeal No.95/2024, Jail Appeal Nos.113

addresses safeguards against contamination and the need for safe handling. These authorities require evaluation of provenance; they do not permit rejection of PFSA evidence simply because the analyst did not appear.

39.Accordingly, this Court does not exclude the report merely because it was tendered by the prosecutor. Admissibility and the weight of a particular exhibit are distinct questions. The serious dispute concerns the chain leading to the laboratory, especially its first and indispensable stage. A scientifically reliable analysis of a submitted specimen cannot, without reliable collection evidence, prove that the specimen was obtained from the asserted source in the asserted circumstances.

40.The cigarette-butt and matchbox findings require separate consideration. Even accepting the identification of Naveed’s DNA on those articles, the report does not determine when he used or handled them or establish that he participated in the fatal burning. No witness fixed the deposition of those articles to the material time. Their collection from a disputed scene can acquire decisive force only in conjunction with reliable circumstances connecting their use to the offence.

41.The matchbox is not itself shown by the DNA result to have ignited this particular fire. Similarly, the presence of cigarette butts cannot establish that the smoker killed the child. The point is not that contact with these objects is irrelevant; it is that proof of contact must not be substituted for proof of the criminal act where the other connecting circumstances remain doubtful.

42.The medical evidence establishes ante-mortem burns over approximately 40–50 per cent of the body and burn asphyxia as the cause of death. Detection of carbon monoxide in the spleen supports exposure while the child was alive. Those are serious and reliable findings concerning the death. They do not identify its author.

43.The doctor found no ligature or strangulation mark. She qualified her evidence by explaining that burning of the face prevented observation of signs of suffocation. Thus, absence of a visible mark does not conclusively exclude every possible act of smothering. Conversely, the absence of an observable sign is not affirmative proof that the child was first suffocated into

Crl. Appeal No.95/2024, Jail Appeal Nos.113

unconsciousness and then burnt. The latter sequence, adopted in paragraph 14 of the trial judgment, required evidence rather than a judicially supplied possibility.

44.The doctor also stated that the dural blood spots could result from a blunt impact or a fall against a hard surface. She found no corresponding external swelling or bony injury. The trial Court’s suggestion that the child’s head probably struck the tank wall when thrown from the roof selected one possible explanation and elevated it into support for the prosecution’s narrative. The medical evidence did not identify that particular mechanism or the person responsible.

45.In cross-examination the doctor found no mud or dusty water on the burnt parts, no signs of water, and hair which was not wet or bloodstained. This evidence must be contrasted with the account of recovery from a kachcha hauz containing water. The doctor did not testify that the child’s clothes were dry: her chief described a body without clothes, and in cross-examination she observed neither clothing particulars on the body nor pieces of cloth attached to the burnt areas. The affirmative wetness observation concerns the hair, while her other observations concern the absence of water or muddy residue on the body. It is not a medical impossibility finding: the time between recovery and examination and intervening handling could matter. The legitimate conclusion is that the prosecution needed a coherent account of extraction, depth of water, handling and transport, which the evidence did not adequately provide.

46.PW-11 acknowledged that water was present but had not checked its depth. There is therefore no basis to assume complete immersion merely from the word “tank”. Equally, there is no evidentiary basis for the Court to invent drying, cleaning or some particular depth in order to reconcile the accounts. The uncertainty is considered cumulatively; it is not used to declare scientifically that a body recovered from any water container must still have wet hair hours later.

47.The trace-chemistry report found no ignitable-liquid residue in the ash, while expressly preserving the possibility of an ignitable liquid having been present earlier. The negative result proves neither accidental burning nor the

Crl. Appeal No.95/2024, Jail Appeal Nos.113

absence of intentional burning. It simply does not provide the proposed additional link. The toxicology report’s absence of tested drugs likewise cannot determine all possible causes of unconsciousness.

48.Physical examination of the route did not furnish reliable corroboration of transport of the burning or burnt child. PW-5 described no dragging or blood signs on the stairs and no secured footprints or fingerprints. He did not recover the burnt clothing or bedding and described ash confined to the roof’s relevant point. PW-11 subsequently described ash on the stairs but did not collect it, saying the first officer had already secured it. The earlier officer’s account does not establish such stair-ash collection. The disagreement concerns the alleged route of movement, rather than a peripheral detail.

49.Non-recovery of fingerprints or non-association of a private recovery witness is not applied as an automatic exclusionary rule. Here, the importance of those omitted checks is practical: they could have supplied independent support where the oral accounts and biological collection were materially disputed. The proof of burning does not by itself establish a particular actor, location of assault or route of removal.

50.The alleged pointations dated 28.08.2022 and 31.08.2022 came after the police had already inspected the roof and the place of alleged body recovery. Articles 38 and 39 of the Qanun-e-Shahadat Order bar the use of police and police-custody confessions in the prohibited circumstances; Article40 admits only the information distinctly related to a fact discovered through it. A narrative of strangulation, burning and disposal cannot become substantive evidence merely because it accompanies identification of places already known to police.

51.No fresh recovery of the body was made through those pointations. The fact that an accused could point out an adjoining tank or explain access to premises already inspected did not prove the entire confession attributed to that accused. Each appellant’s alleged statement also cannot be freely used as substantive evidence against the other. The principle concerning police- custody confession is reinforced by Rehmatullah (2024 SCMR 1782), paragraph-7.

Crl. Appeal No.95/2024, Jail Appeal Nos.113

52.The telephone data do not remedy the deficiencies. PW-11 acknowledged that ownership certificates were not obtained and that neither of the relevant numbers belonged to Naveed. The neighbouring woman said to have supplied a telephone was not examined to establish actual use and the asserted conversation. Registered ownership and actual use are different matters: use of another person’s telephone is possible, but must be proved rather than assumed.

53.The recent decision in Khair Muhammad and another v. The State (2025 SCMR 1599; 2025 SCP 199), decided on 30.04.2025, particularly paragraphs14–16, is relevant to the need to establish the connection between telephone data and the persons or communication alleged. Here, the data could not independently establish either the supposed relationship or an agreement to kill. The same decision illustrates the need to test a claimed post-occurrence sighting against the witness’s concessions in cross- examination, although the night-time lighting facts there are distinguishable from the alleged afternoon occurrence here.

54.The absence of a rooftop light during the police’s early-morning inspection must not be confused with inability to observe an afternoon event. It is relevant to the reliability of the collection and inspection proceedings, particularly when the recovery witness described using mobile-phone light. It is not, by itself, a ground to disbelieve daytime visibility. Similarly, isolated mistakes of year, AM/PM or exhibit numbering are not made independent foundations of the result.

55.The reasoning in paragraphs10–11 of the trial judgment also proceeded upon the view that the child could not have moved herself and that Mst. Raya could not have acted alone, thereby requiring the assistance of another person. No medical or other expert evidence established the latter proposition. Even a justified inference that another person participated would not establish that the other person was Muhammad Naveed. Proof of that identity remained indispensable.

56.Likewise, residence in the house cannot substitute for proof of exclusive presence on its roof at the material time. The prosecution’s own account described a gathering with other women and children in the premises.

Crl. Appeal No.95/2024, Jail Appeal Nos.113

The fact that the occurrence is attributed to a resident’s home does not reverse the legal burden or require that resident to prove innocence before the prosecution has established the incriminating foundational facts.

57.The trial Court’s treatment of the defence also requires caution. Naveed’s judgment records three defence witnesses asserting an earlier arrest and rejects that assertion by reference to the FIR chronology and absence of a prior complaint about custody. Failure to establish that defence would not prove the killing. The sufficiency of the prosecution’s chain must stand on its own. Mst. Raya’s request in her section 342 statement to produce a PFSA analyst similarly cannot be converted into proof either of contamination or of guilt. Paragraph 5 of her judgment records that no defence evidence was produced. That statement does not explain what became of her express request to call the analyst; without the relevant intervening order, it would be improper to find either that the request was refused or that it was abandoned.

58.The appellants’ allegations that evidence was fabricated or DNA deliberately manipulated are not accepted as proved merely because they were made in their section342 answers. Neither is either appellant obliged to establish fabrication in order to benefit from a material failure of prosecution proof. The relevant question remains whether reliable evidence establishes guilt beyond reasonable doubt.

59.The circumstances have been considered together rather than in artificial isolation. The asserted rooftop encounter was not witnessed; later identification and motive lacked dependable independent foundation; the critical nail-swab collection was materially inconsistent; receipt and custody evidence did not resolve its disputed origin; and medical proof of fatal burning did not identify the assailants. The remaining contact evidence from ordinary objects and presence near the premises did not bridge those gaps.

60.As regards Mst. Raya, the initial naming and alleged departure from the neighbouring premises provide a circumstance requiring scrutiny, but do not remove the doubts concerning her participation in the killing. As regards Muhammad Naveed, the trial Court’s own acknowledgment of the unknown boy in the initial account, the absence of direct evidence, and the material sample-origin contradiction required particular caution. Its conclusions could

Crl. Appeal No.95/2024, Jail Appeal Nos.113

not be sustained by assuming that presence of his DNA on ordinary objects established the time and criminal nature of his presence.

61.The Court need not find affirmatively that the death was accidental, that a relative was responsible, or that a particular third person committed the crime. Those would be conclusions requiring their own evidence. The failure to prove the identity and participation of the appellants is sufficient. Suspicion, even grave suspicion arising from a tragic occurrence, cannot satisfy the criminal standard of proof.

62.For these reasons, the prosecution has failed to establish a complete and reliable chain excluding reasonable doubt as to the guilt of the appellants. The benefit of that doubt belongs to each of them as a right. The convictions cannot be maintained.

63.Consequently, Jail Appeal No.72/2024 and the connected proceedings of Muhammad Naveed, namely Jail Appeal No.113/2024 and Criminal Appeal No.95/2024, are allowed. The impugned convictions and the sentences, compensation and consequential default imprisonment founded upon those convictions are set aside. Mst. Raya Bibi and Muhammad Naveed are acquitted of the charges forming the subject of these appeals by extending them the benefit of doubt. They shall be released forthwith, if their detention is not required in any other case.

64.Muhammad Naveed’s jail appeal and regular appeal stand disposed of by this single determination. The office shall transmit copies of this judgment to the concerned trial Courts and the Superintendent of the prison for compliance. The trial records shall be returned.

(SHAHRUKH ARJUMAND)

JUDGE

Announced in the open Court on_____________

JUDGE

Approved for reporting.

Asif Mughal/-