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IN THE PESHAWAR HIGH COURT,

PESHAWAR,
[Judicial Department].

Cr. A. No.569-P/2017

Adil Bacha son of Gulzar Bahadur,

r/o Panjpir District Swabi.

Appellant (s)
VERSUS

The State etc

Respondent (s)

For Appellant :- Mr. Jalal ud Din Akbar-e-Azam Khan Gara,

Advocate.
For State :- Mr. Mujahid Ali Khan, AAG.
For complainant:- Muhammad Farooq Jan, Advocate.
Date of hearing: 02.09.2020.

ORDER

ROOH-UL-AMIN KHAN, J:- At a trial held by learned

Additional Sessions Judge-III, Swabi, accused Adil Bacha

and Sahid, having been found guilty of committing murder

of Amjad Ali Shah deceased, have been convicted under

section 302 (b) PPC and sentenced to undergo

imprisonment for life each and to pay Rs.1,00,000/- each,

as compensation to legal heirs of the deceased in terms of

section 544-A Cr.P.C. and in default thereof to undergo 06

months simple imprisonment vide judgment dated

23.09.2017, in case FIR No.552 dated 05.08.2014,

registered under sections 302/34 PPC at Police Station

Swabi. Benefit of section 382-B Cr.P.C. has been extended

to them.
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2. Against their conviction, convict Adil Bacha has

filed the instant appeal and convict Sahid, has filed

connected Cr.A. No.578-P/2017, whereas, complainant

Babar Ali Shahh has filed Cr.R. No.131-P/2017, seeking

enhancement of sentence of the convicts from life

imprisonment to normal penalty of death as provided for

the offence.

3. Since, the appeals and the revision are arising out

from one and the same judgment dated 23.09.2017 of the

learned trial Court, therefore, are being decided through

this common judgment.

4. The prosecution case, as unfolded in First

Information Report/FIR (Exh.PA) is that on 05.08.2014 at

2225 hours, complainant Babar Ali Shah (PW.12) with the

help of his co-villagers brought the dead body of his father

Amjad Ali Shah deceased to Bacha Khan Medical

Complex (BMC), Shah Mansoor, and reported to Fazal

Miraj SI (PW.4) to the effect that on the night of

occurrence he along with his mother, namely,

Mst. Shaheen Akhtar and the deceased, was present in their

house, situated in village Panj Pir when at 2110 hours,

someone knock at the door of their house. The deceased

went outside to see the knocker and he followed him. The

moment the deceased came out from the house, Adil Bacha

and Sahid (appellants) as well as their co-accused Jabir Ali

Shah, emerged. Out of them, appellant Sahid opened fire at

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the deceased with his pistol, as a result, he got hit and died

at the spot. After commission of the offence, the accused

decamped from the spot. Motive behind the occurrence is

that the deceased was annoyed on the friendly relationship

of his son/accused Jabir Ali Shah with co-accused Sahid

and Adil Bacha. Report of the complainant was reduced

into writing in the shape of Murasila Exh.PA/1 by Fazal

Miraj SI (PW.4), who also prepared injury sheet and

inquest report of the deceased Exh.PW.4/1 and

Exh.PW.4/2, respectively, and shifted his dead body to the

mortuary for postmortem examination.

5. Dr. Syed Muhammad Kashif (PW.9) conducted

autopsy on the dead body of the deceased on 05.08.2014 at

09.50 p.m. and found the following injuries on his person:-

1. Firearm entry wound below neck (midline of

back).
2. Firearm exit wound on left axilla (bullet extracted
and handed over to police).
3. Firearm entry wound on right cheek (mid).
4. Firearm exit wound behind the right ear.
5. Two firearm entry wound on right cheek.
6. Firearm exit wound near the second bullet.
7. Firearm entry wound on top of skull.
8. Firearm exit wound on back of skull (occipital
region).
9. Firearm entry wound on left eyebrow.
10. Firearm exit wound near right mandible below
cheek.
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According to his opinion, firearm injuries

sustained by the deceased on his head, led to his unnatural

death. Probable time between injury and death has been

opined by him as 2 to 5 minutes whereas between death

and postmortem as ½ hours.

6. Ghani Said Khan Inspector (PW.13), conducted

investigation in the case, who proceeded to the spot and

prepared site plan Exh.PB at the pointation of the

complainant. During spot inspection, he took into

possession bloodstained pebbles from the place of the

deceased vide recovery memo Exh.PW.6/1 and two

empties of .30 bore lying in scattered position vide

recovery memo Exh.PW.6/2. Vide recovery memo

Exh.PW.6/3, he took into possession the last worn

bloodstained garments of the deceased and a spent bullet

extracted from the body of the deceased by the medical

officer vide recovery memo Exh.Pw.3/1. He sent the

bloodstained articles to the FSL, report whereof is Exh.PK.

Similarly, he sent the empties to the FSL for safe custody

vide application Exh.PW.13/2. Accused Jabir Ali and Adil

Bacha, arrested by SHO Sher Afsar, were handed over to

him, who obtained their two days police custody, recorded

their statements under section 161 Cr.P.C. and produced

them before the learned Illaqa Judicial Magistrate vide

application Exh.PW.10/1, where, both of them recorded

their confessional statements. He initiated proceedings

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under section 204 and 87 Cr.P.C. against accused Sahid.

On 01.01.2015, accused Sahid was arrested. He

interrogated him and recorded his statement under section

161 Cr.P.C. On completion of investigation he handed over

case file to the SHO for submission of challan against the

accused.

7. Since, accused Jabir Ali Shah was a juvenile,

therefore, separate challan under the Juvenile Justice

System Ordinance was submitted against him, whereas,

complete challan was submitted against accused/appellants

Adil Bacha and Sahid before the learned trial Court, where

both were charge sheeted to which they pleaded not guilty

and claimed trial. In order to prove its case, the prosecution

examined as many as thirteen witnesses. After closure of

the prosecution evidence, statements of the appellants were

recorded under section 342 Cr.P.C. wherein they denied

the prosecution allegations and professed their innocence.

They, however, declined to be examined on oath under

section 340(2) Cr.P.C. or to produce evidence in defence.

On conclusion of trial, the learned trial Court, after hearing

both the parties, convicted and sentenced the appellants as

mentioned vide judgment impugned herein.

8. We have heard the exhaustive arguments of

learned counsel for the parties and perused the record with

their valuable assistance.

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9. To prove the guilt of appellants, the prosecution

has relied upon the ocular account of the alleged

eyewitness/complainant Babar Ali Shah (PW.12), the

confessional statements of accused Adil Bacha and Jabir

Ali Shah as well as medical evidence and recoveries from

the spot. The learned trial Court while believing the

aforesaid evidence has recorded conviction of the

appellants. To concur or disagree with the view of the

learned trial Court, we will reappraise the evidence relied

upon by the prosecution.

10. According to FIR, the occurrence has taken place

in the month of August at 2110 hours i.e. (09.10 p.m) and

by such time the dark completely prevails. Complainant

Babar Ali Shah (PW.12), neither in his report/FIR nor in

court statement has uttered a single word about the source

of light in which he identified the accused and this fact has

also been admitted by the Ghani Said Khan Inspector

(PW.13)/Investigating Officer. In the site plan Exh.PB, the

deceased is shown at point No.1 and complainant at point

No.2 and distance between these two points is given as

6 feet. Similarly, appellant Sahid, to whom the specific role

of firing has been attributed, is shown at point No.3, which

is at a distance of 16 feet from point No.2 i.e. the place of

complainant. Accused Jabir and Adil Bacha, have been

shown at points No.4 and 5, respectively, which are at a

distance of 21 and 26 feet, respectively, from the place of

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complainant at point No.2. AS discussed above, about

darkness of night, the site plan Exh.PB is also silent about

availability of any source of light at the spot as no light or

lamp was taken into possession by Ghani Said Khan

Inspector (PW.13), rather, he in his statement has admitted

that no source of light was disclosed to him by the

complainant. In the foot notes of the site plan Exh.PB it has

been categorically mentioned by the I.O. that the spot was

inspected and site plan was prepared with the help of

headlights of vehicle and torch. In absence of any tangible

and concrete evidence to prove the availability of light on

the spot at the time of occurrence, we are firm in our view

to hold that identification of the assailants from the

distances of 16, 21 and 26 feet, was next to impossible,

what to speak of identifying firing of a particular person

hitting the deceased. This sole ground is sufficient for

discarding the testimony of complainant that he is not a

truthful witness. However, for safe administration of

justice we would like to scrutinize his testimony.

Complainant poses himself to be the eyewitness of

the occurrence. It is in the prosecution evidence that

appellant Jabir Ali Shah is the step brother of complainant.

In cross-examination, complainant disclosed that he has

five paternal Aunts, namely, Mst. Bas Nama, Mst. Gul

Hamida, Mst. Irshada, Mst. Asia and Mst. Bakht Safa, who

all have grown up sons and that his above named aunts
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have never demanded their shares in the property of the

deceased. By taking summersault in the next breath he

admitted that his above named paternal aunts has instituted

a civil suit in respect of their share in the property of the

deceased wherein he had submitted cognovit in their

favour. He further disclosed that the said suit is still

pending in the civil Court Swabi wherein accused Jabir Ali

Shah along with his brothers Hasan, Jehangir and their

mother Mst. Shaheen are also defendants and they have

denied the claim of his paternal Aunts. He further disclosed

that, after second marriage of his deceased father with Mst.

Shaheen Akhtar, his mother Mst. Raveda (first wife of the

deceased) was expelled by the deceased along with her

daughter Mst. Marwa, therefore, they were residing in the

house of his maternal grandfather, however, he was

residing with his deceased father. Blowing hot and cold in

the next breath he deposed that “I lived in the house of

my maternal grandfather for three years till the death

of my deceased father”. He further deposed that after the

occurrence they were shifted to a nearby house situated

near the house of the deceased on account of Jirga

decision. He admitted that during the days of occurrence

Mst. Shaheen Akhtar (second wife of the deceased) along

with her sons Jehangir and Hassan was residing with the

deceased. He deposed that the distance between the house

of his maternal grandfather and the deceased can be

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covered within 2/3 minutes. Both the houses are situated in

different streets. He admitted it correct that a mosque is

situated near the house of his maternal grandfather wherein

he used to teach Islamic education to children after

Maghrib prayers. The circumstances disclosed by the

complainant clearly prove that after second marriage by the

deceased with Mst. Shaheen Akhtar, the complainant along

with his mother and sister was expelled from the house by

the deceased, therefore, they were residing in the house of

his maternal grandfather. Besides, the complainant used to

teach Islamic education to the children in a Mosque

situated near the house of his grandfather. In this view of

the matter, presence of the complainant in the house of the

deceased is beyond the understanding of a prudent mind

because if the relation of the deceased were so strained

with mother of the complainant that she along with

children was expelled from the house then living of the

complainant in the house of his father does not appeal to a

prudent mind. In this view of the matter, the complainant

falls within the category of chance witness. The hon’ble

Supreme Court in case titled, “Mst. Rukhsana Begum

and others vs Sajjad and others” (2017 SCMR 596), has

explained the meaning of a “chance witness”, in the

following words:-

“Chance witness” was one who, in the normal

course was not supposed to be present on the

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crime spot unless he offered cogent,

convincing and believable explanation

justifying his presence there”.

No explanation, much less plausible has been furnished by

the complainant so as to justify his presence in the house

of the deceased. Rather sufficient circumstances have been

disclosed by the complainant in his statement on the basis

of which his presence in the house of the deceased cannot

be admitted by any stretch of imagination.

11. Adverting to the confessional statements of

appellant Adil Bacha, the same is exculpatory. He has

shown complete ignorance about his involvement in the

murder of the deceased. He disclosed that on the night of

occurrence he was informed by appellant Sahid through a

text message to reach the house of appellant Adil Bacha for

chit chat. After sometime, he reached his house and they

both left for the house of accused Jabir Ali Shah on a

motorbike, where the motorbike was parked at some

distance from the house of accused Jabir Ali Shah and he

was told by appellant Sahid to guard the motorcycle and

wait for him. Appellant Sahid went towards the house of

the deceased and after sometime he (Adil Bacha) heard the

report of fire shots and noticed appellant Sahid along with

accused Jabir Ali Shah running towards him. He inquired

from them as to whether someone has fired at them or they

have fired at someone. In response he was told by them not

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to talk and they all proceeded to Darra Petrol Pump on the

same motorbike, where accused Jabir Ali Shah was

informed by someone about murder of his father on mobile

call. In the confessional statement he has shown his

ignorance about the occurrence and similarly he has also

not disclosed about the role of co-accused.

As regards confessional statement of accused Jabir

Ali Shah, he has stated therein that he had friendly/love

relationship with appellant Sahid on which his deceased

father was annoyed and used to beat him. Having

embarrassed from the attitude of his father, he along with

appellant Sahid made a plan for committing the murder of

the deceased and on the night of occurrence he told

appellant Sahid on phone call to visit his house along with

pistol, who accordingly reached there along with appellant

Adil Bacha. According to the scheme, appellant Adil

Bacha was directed to stand near the motorcycle and wait

for them, whereas, he and appellant Sahid went towards the

door of the house of deceased. He knocked at the door on

which the deceased came out and appellant Sahid opened

fire at him, as a result, he got hit. They both rushed towards

the motorcycle and decamped from the spot.

12. Thorough perusal of the confessional statements of

both the accused reveals that both are contradictory with

each other on material fact. According to the statement of

accused Adil Bacha when he along with accused Sahid

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reached the spot and he was directed to stand near the

motorbike and wait for him. He has not uttered a single

word about arrival of accused Jabir Ali Shah there i.e. the

place of parking of motorcycle, whereas, according to

accused Jabir Ali Shah when appellants Sahid and Adil

Bacha reached the spot, he meet them, prepared plan and

directed appellant Adil Bacha to wait for them near the

motorcycle and he along with Sahid went towards the

house of the deceased. Again according to statement of

accused Jabir Ali Shah he told accused Sahid on phone to

bring pistol, whereas, accused Adil Bacha who

accompanied accused Sahid to the spot has not uttered a

single word about availability of any pistol with appellant

Sahid. Besides, confessional statement of accused Jabir Ali

Shah is not corroborated by any other strong evidence. The

I.O. has not brought on file, record of text message

allegedly sent by appellant Sahid to appellant Adil Bacha.

Similarly, he has also not procured record of the alleged

call of appellant Sahid made to appellant Adil Bacha on the

night of occurrence in respect of their visit to the house of

Jabir Ali Shah for chit chat. Similar is the case of the call

of accused Jabir Ali Shah allegedly made to appellant

Sahid regarding reaching the spot along with pistol. The

motorcycle used in the commission of offence has also not

been recovered. Appellant Sahid who had been given

specific role of firing at the deceased has not recorded any

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confessional statement. For the sake of arguments if the

confessional statement of accused Jabir Ali Shah is taken

into consideration, the same can only be used as a

circumstance against appellant Sahid but subject to strong

corroboration from other independent pieces of evidence

and its proof during trial, which is missing in the instant

case. No crime weapon has been shown recovered from

appellant Sahid. The two crime empties of .30 bore

recovered from the spot, though have been sent to the FSL,

but only for the purpose of safe custody. There is no FSL

report as to whether these have been fired from one or

more than one weapon.

13. Yet there is another aspect of the case which

further damages the prosecution case. The confessional

statements of the accused have been recorded by Ijaz ur

Rehman Judicial Magistate (PW.10), who in cross-

examination disclosed that accused Jabir Ali and Adil

Bacha were produced before him on 11.08.2012 and on

that very day they did not volunteer to record their

confessional statements. Two days physical custody of the

accused was granted and on 13.08.2014 i.e. expiry of

custody both the accused were produced before him at

12.30 pm through a single application. He admitted it

correct that he has not mentioned that at the time of

recording statement of accused Jabir Ali Shah, appellant

Adil Bacha was made to sit outside the court and similar is
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the position when the statement of Adil Bacha was being

recorded by him. He admitted it correct that in the

respective certificates attached with the confessional

statements of the accused Adil Bacha and Jabir Ali Shah,

he has not specifically mentioned that he read over to

them their confessional statement in Pashto or so

explained. Ghani Said Khan Inspector (PW.13), who

produced the accused before the learned Judicial

Magistrate for recording their confessional statements

admitted it correct that on the first day of their production

the accused were not ready to confess their guilt, therefore,

their two days physical remand was obtained. According to

the I.O. he produced both accused for recording their

confessional statements at 11.00 am and both remained

inside the court room till 3.00 p.m. Statement of the I.O is

contradictory with the statement of Ijaz ur Rehman Judicial

Magistrate (PW.10). According to him the accused were

produced before him by the I.O. at 12.30 p.m. and he

recorded the statements at 1.45 p.m. Confessional

statements of the accused recorded by the Magistrate, in

light of the peculiar facts and circumstances discussed

above being involuntary and result of torture as well as

suffering from mandatory procedural irregularities is the

most suspicious piece of evidence in the whole case,

besides having been retracted. It might be right that

retracted confession, if corroborated by independent

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evidence of reliable nature, can be made basis for

conviction on a capital charge, but it must be subject to

thorough judicial scrutiny. It is trite law that for accepting a

confession, two essential requirements must be fulfilled i.e.

the confession was made voluntarily, it was based on true

account of facts, leading to the crime and the same was

proved at the trial. The Hon’ble Supreme Court in case

titled, “Azeem Khan and another Vs Mujahid Khan and

others” (2016 SCMR 274) has given strict guidelines for

the Magistrate, recording confession, to be followed

without any exception, which for the sake of convenience

and ready reference are reproduced below:-

“Before recording confession and that too in crime

entailing capital punishment, the recording
Magistrate had to essentially observe all the
mandatory precautions (laid down in the High Court
Rules and Orders). Fundamental logic behind the
same was that, all signs of fear inculcated by the
investigating agency in the mind of the accused
were to be shed out and he was to be provided full
assurance that in case he was not guilty or was not
making a confessional voluntarily then in that case
he would not be handed over back to the police.
Thereafter, sufficient time for reflection was to be
given after the first warning was administered. At
the expiry of such time, recording Magistrate had to
administer the second warning and the accused shall
be assured that now he was in the safe hands. All
police officials whether in uniform or otherwise,
including Naib Court attached to the Court must be
kept outside the court and beyond the view of the
accused. After observing all these legal
requirements if the accused person was willing to
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confess then, all required questions as formulated

by the High court Rules and Orders should be put to
him and the answers given, be recorded in the
words spoken by him. Statement of accused should
be recorded by the Magistrate with his own hand
and in case there was a genuine compelling reason
then, a special note was to be given that the same
was dictated to a responsible official of the Court
like stenographer or reader and oath shall also be
administered to such official that he would correctly
type or writ the true and correct version. In case, the
accused was illiterate, and made a confession,
which was recorded in another language i.e. Urdu or
English, then the same should be read-over and
explained to him in the language he fully
understood, and thereafter a certificate, as required
under section 364 Cr.P.C. with regard to these
proceedings should be given by the Magistrate
under his seal and signatures and the accused shall
be sent to jail on judicial remand and during this
process at no occasion he shall be handed over to
any police official/officer whether he was Naib
Court wearing police uniform or any other police
official/officer, because such careless dispensation
would considerably diminish the voluntary nature of
the confession, made by the accused.”
14. The above mentioned strict guidelines of the

Hon’ble Supreme Court have not been followed by the

learned Judicial Magistrate at the time of recording the

confessional statements of the accused. In this view of the

matter, the confessional statements which on one hand are

exculpatory and on the other hand, not corroborated and

proved during trial, are of no legal worth, therefore, is

excluded from consideration in light of the ratio of

judgment (supra) of the Honble Supreme Court.

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15. Recovery of blood from the spot, the last worn

bloodstained argument of the deceased, positive Serologist

in respect thereof coupled with postmortem of the

deceased, though confirm the unnatural death of the

deceased with firearm at the spot as alleged by the

prosecution, but never tell the names of the culprit (s).

Such pieces of supporting and corroborative evidence are

always taken into consideration along with direct evidence

and not in isolation. In support, reliance can be placed in

on the judgments rendered by the Hon’ble apex court in

Ijaz Ahmed’s case (1997 SCMR 1279 and Asadullah’s

case (PLD 1971 SC 541) and case titled, “Saifullah vs

the State” (1985 SCMR 410)

16. For what has been discussed above, we have no

hesitation to hold that the prosecution has miserably failed

to prove the guilt of the appellants through cogent and

confidence inspiring direct or circumstantial evidence. The

prosecution case is pregnant with doubts benefit of which

should have been extended to the appellants but the learned

trial Court by not appreciating the evidence in its true

perspective arrived at a wrong conclusion by holding the

appellants guilty of the offence. As per golden principle of

benefit of doubt one substantial doubt would be enough for

acquittal of the accused. Under principle enunciated by the

august apex court of the country through different

pronouncements, by now it is settled law that conviction

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must be based on unimpeachable evidence and certainty of

guilt and any doubt arising in prosecution case must be

resolved in favour of the accused.

17. Resultantly, this and the connected Cr.A. No.578-

P/2017, titled, “Sahid Vs State etc” are allowed, conviction

and sentences of the appellants recorded by the learned

trial court vide impugned judgment are hereby set aside

and they are acquitted from the charges leveled against

them. They be set at liberty forthwith, if not confined in

any other case.

18. On acquittal of the appellants, connected Cr.R.

No.131-P/2017, titled, “Babar Ali Shah vs the State and

others” has become infructuous which is hereby dismissed.

19. These are the reasons of our short order of even

date, which is reproduced below:-

For reasons to be recorded later through a

common judgment, this and the connected

Cr.A. No.578-P/2017, filed by appellants Adil

Bacha and Sahid, respectively, are allowed,

resultantly, their conviction and sentences

recorded by the learned Additional Sessions

Judge-III, Swabi under section 302(b) PPC

vide judgment dated 23.09.2017, in case FIR

No.552 dated 05.08.2014, under sections

302/34 PPC, Police Station Swabi, are hereby

set-aside. The appellants are acquitted from

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the charge in the cited case. They be set at

liberty forthwith, if not confined in any other

case.

Announced:
02.09.2020
M.Siraj Afridi PS

JUDGE

JUDGE
DB of Hon’ble Mr. Justice Rooh ul Amin Khan; and
Hon’ble Mr. Justice S.M. Attique Shah.