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Petitioner: Zubair Ahmad VS Respondent: State Honorable Justice Salah-Ud-Din Said Hakim , Said Hakim and Shah Zaman
CITATION: 2026 YLR 1614 CASE: 2026P4032 TITLE: Zubair Ahmad VS State Honorable Justice Salah-Ud-Din Said Hakim , Said Hakim and Shah Zaman COURT: PESHAWAR-HIGH-COURT YEAR: 2026 JOURNAL: YLR ============================================================
2002 Y L R 2026 Y L R 1614 [Peshawar (Mingora Bench)] Before Sabit Ullah Khan and Salah-ud-Din, JJ Zubair Ahmad and others---Appellants Versus State
and another---Respondents Criminal Appeal No. 300-M of 2024 with Criminal Miscellaneous No. 436-M, Criminal Appeal No. 306-M of 2024 and Criminal Revision No. 76-M of 2024, decided on 7th May, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, abetment, common intention, possession of illicit weapon---Appreciation of evidence---Ocular account not proved---Whether conviction could be sustained on defective ocular account?---Held: Accused were charged for committing murder of the brother of complainant by firing---Ocular account comprised of solitary statement of brother of deceased/complainant, who admittedly was not an eye-witness as he stated in the FIR. that he had received a phone call that his brother had been done to death by two unknown motorcyclists---When he reached the spot, he found his brother lying dead and no accused was nominated in the FIR---He had also not pointed out the place of occurrence to police, rather police themselves located the place of incident---Subsequently, his statement under S. 164, Cr.P.C. was recorded after arrest of appellants, without disclosing the source of information through which he nominated them---Statement of father of deceased also did not make him an eye-witness, as he only heard firing and later found the deceased dead and made improvements during trial---Thus, ocular account furnished through complainant and father of deceased was not reliable to base conviction---Appeal against conviction was allowed, in circumstances. (b) Criminal trial--- ----Solitary statement of a witness---Conviction---Scope---Conviction can be based on a solitary statement of a witness in a capital charge, provided it is direct, reliable, confidence inspiring and presence of witness at relevant time and place is proved. (c) Criminal trial--- ----Related and interested witness, evidence of---Scope---Mere relationship of a witness with deceased does not make him an interested witness. (d) Criminal trial--- ----Supplementary statement---Scope---Supplementary statement before the Court cannot replace the FIR; therefore, no evidentiary worth can be attached to it. Kashif Ali v. Judge Anti-Terrorism Court No.II, Lahore and others PLD 2016 SC 951 and Altaf Hussain and another v. The State and others 2010 PCr.LJ 1593 rel. (e) Criminal Procedure Code (V of 1898)--- ----S. 164---Confessional statement---Retraction---Scope---Conviction can be based on voluntary and truthful confession even if retracted, provided it is corroborated by independent evidence. Maj. (Rtd.) Tariq Mehmood v. State 2002 SCMR 1493 rel.. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Criminal Procedure Code (V of 1898), S. 164---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd---Appreciation of evidence---Confessional statement---Infirmities---Accused were arrested on 14.11.2021 and remained in police custody for about thirteen days before recording of confessions---They retracted the confessions in their statements under S. 342, Cr.P.C., alleging coercion, torture and threat of being made missing persons---There was no independent corroboration of such confessions---Delay in recording and continued police custody cast serious doubt on voluntariness of confessions, which were thus not reliable---Appeal against conviction was allowed, in circumstances. Muhammad Ismail and others v. State 2017 SCMR 898; Muhammad Pervez and others v. The State and others 2007 SCMR 670 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 276 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Criminal Procedure Code (V of 1898), S. 164---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd---Appreciation of evidence---Confessional statement---Procedural lapses---Statements of both appellants were recorded together within short span while police officials remained present---Magistrate failed to ensure separation of accused and compliance of safeguards---There was also communication gap regarding language and no satisfaction of accused was recorded---Such lapses rendered confessions unreliable---Appeal against conviction was allowed, in circumstances. State v. Asfandyar Wali and others 1982 SCMR 321; State through PG Sindh and others v. Ahmed Umar Shaikh and others 2021 SCMR 873; Allah Wasaya and another v. State and another 2022 PCr.LJ 616 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd---Appreciation of evidence---Medical evidence---Contradiction---Scope---Medical evidence showing multiple wounds from different directions did not support confessional version attributing firing from one side---Nature of injuries suggested use of different weapon than alleged---Thus, medical evidence contradicted prosecution case and confessional statements---Appeal against conviction was allowed, in circumstances. Mushtaq and others v. The State 2012 SCMR 109 and Abdur Rehman s case 2018 YLR 1629 rel. (i) Criminal trial--- ----Call Data Record---Scope---In absence of oral transcription, CDR only reflects presence of SIMs in area of specified towers and not exact location. Slamic Republic of Pakistan through Secretary Ministry of Law and Justice and others v. Imran Ahmed Khan Niazi and others PLJ 2025 SC 1; Mian Khalid Pervez v. The State and another 2021 SCMR 522 and Mujtaba Hussain v. State and others 2021 YLR 2233 rel. (j) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Withholding material witness---Effect---Friend of deceased, who identified dead body and was allegedly present, was not produced without justification---Adverse inference under Art. 129(g) was rightly drawn against prosecution--- Appeal against conviction was allowed, in circumstances. Muhammad Rafique and others v. State and others 2010 SCMR 385 rel. (k) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Scope---Recovery and surrounding circumstances did not connect accused with offence---Conduct of accused in retaining weapon for several days created doubt---Circumstantial evidence failed to form complete chain---Appeal against conviction was allowed, in circumstances. Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 639; Imran Ashraf and 7 others v. The State 2001 SCMR 424 and 2007 SCMR 1427 rel. (l) Criminal trial--- ----Benefit of doubt---Principle---A single reasonable doubt is sufficient to extend benefit to accused. Tariq Pervaiz v. The State 1995 SCMR 1345; Daniel boyd (Muslim name Saifullah) v. The State 1992 SCMR 196; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Muhammad Zaman v. The State 2014 SCMR 749 rel. Said Hakim, Advocate Supreme Court and Shah Zaman for Appellant (in Criminal Appeal No. 300-M with Criminal Miscellaneous No. 436-M of 2024). Imran Khan, Asstt: A.G, for the State (in Criminal Appeal No. 300-M with Criminal Miscellaneous No. 436-M of 2024). Muhammad Rahim Shah Khan for the Complainant (in Criminal Appeal No. 300-M of 2024 with Criminal Miscellaneous No. 436-M of 2024). Muhammad Rahim Shah Khan for the Appellantt/Complainant (in Criminal Appeal No. 306-M of 2024). Imran Khan, Asstt: A.G, for the State (in Criminal Appeal No. 306-M of 2024). Said Hakim, Advocate Supreme Court and Shah Zaman for acquitted Respondents (in Criminal Appeal No. 306-M of 2024). Muhammad Rahim Shah Khan for the Petitioner/Complainant (in Criminal Revision No. 76 of 2024). Said Hakim and Shah Zaman for Respondents (in Criminal Revision No. 76-M of 2024). Imran Khan, Asstt: A.G, for the State (in Criminal Appeal No. 76-M of 2024). Dates of hearing: 6th and 7th May, 2025. Judgment Salah-ud-Din, J .--- Appellants namely Zubair Ahmad and Dawood Khan have called in question judgment of their conviction and sentence passed by learned Additional Sessions Judge, Malakand, at Dargai, dated 02.11.2024, rendered in case FIR No. 243 dated 08.11.2021, under sections 302,109,34 P.P.C, read with section 15-AA of P.S Sakhakot, District Malakand, whereby upon conclusion of a full-fledged trial, appellants were convicted and sentenced as follows: -
Under section 302 (b)/34 P.P.C to life imprisonment, along with compensation of Rs. 5,000,000/- (Fifty Lac), to the legal heirs of the deceased in default of payment of compensation the accused shall undergo simple imprisonment of five (05) years, additionally.
Accused Zubair Ahmad is also convicted under section 15- KPK Arms Act for simple imprisonment of five (04) years and Rs. 10000/- (Ten thousand) in default of fine the accused Zubair Ahmad should further suffer five (05) months simple imprisonment.
All the sentence awarded the accused shall be running concurrently, and benefit under section 382-B, Cr.P.C, was extended to both the accused.
Case property in shape of the weapon of offence and ammunition and motorcycle is confiscated to sate whereas rest of the case properties shall be destroyed after final result of appeal/ revision, if any filed by the parties. 2. Arguments of learned counsel for parties as well as learned Astt: A.G for State were heard and requisitioned record gone through with their valuable assistance. 3. As per prosecution story, complainant namely Abdul Jalal reported the matter to local levy officials at Dargai hospital in terms that on the fateful day i.e. on 08.11.2021 he was present in Sakhakot Bazar. In the meanwhile, at 20:20 hours, he was informed via mobile phone that two unknown motorcyclists killed his brother namely Muhammad Zada. Pursuant to receipt of such information, when complainant reached to the spot, he found dead body of his brother, smeared in blood. Complainant shifted dead body of his deceased brother to Dargai hospital, with the help and facilitation of his neighbors, through an ambulance of rescue 1122. Subject occurrence might have been witnessed by someone. No motive qua commission of offence was disclosed by complainant at the time of lodging of his initial report. In view of report of complainant Murasila' (Ex. PA/1) was drafted which culminated into ibid FIR (Ex PA) registered against unknown accused at P.S W.R.S. Sakhakot, District Malakand. Later on, the accused/appellants and other acquitted co-accused were charged in the case in hand mainly on the basis of CDR data as well as CCTV footages. 4. In the instant case, prosecution mainly relies upon ocular-account furnished through the statement of complainant, confessional statements of both appellants namely Zubair Ahmad and Dawood Khan, CCTV footages and CDR data of nominated accused. For reappraisal of evidence, evidentiary value of each of these incriminating articles are taken for discussion, one-by-one. Ocular account: - a. Ocular-account comprises of a solitary statement of brother of deceased namely Abdul Jalal. No doubt, conviction can be based on a solitary statement of a witness in a case of capital charge, provided it is direct, reliable, confidence inspiring and presence of the PW at the relevant time and place is proved and justified. Similarly, there is no denial to this fact that a mere relationship of a witness with deceased does not make him an interested witness. Here PW-4, namely Abdul Jalal is the complainant of present case. But admittedly he is not an eye-witness of the occurrence as he states in the FIR that he received phone call that his brother has been done to death through firearm by two motorcycle riders. Pursuant to receipt of such information when he reached to the spot, whereby he found his brother lying dead. Therefore, he names no one in the FIR, rather unknown accused were held responsible for the murder of deceased. Similarly, he is also not the person who pointed-out the place of occurrence to police, rather, they themselves located and traced-out the venue of crime, upon their own observations, wherein also nobody was cited as an accused. b. Then on 20.11.2021, 164 Cr.P.C, statement of PW Abdul Jalal was recorded, where he without disclosing the source of his information and satisfaction, charged present appellants for committing the murder of his deceased brother. It is pertinent to mention here that appellants had been arrested on 14.11.2021, some thirteen days prior to recording of 164 statement of complainant and on the same day they had been committed to police custody. Even then, learned Magistrate did not bother to call/ summon the appellants and to give them an opportunity to cross-examine the complainant. Now this court has to see whether under section 265-J, Cr.P.C such kind of 164 statement is acceptable or has any legal worth. Moreover, a supplementary statement before the Court cannot replace the FIR; therefore, no worth can be given to it. Reliance is placed on the judgment of Hon'ble apex Court, rendered in case titled "Kashif All v. Judge Anti-Terrorism Court No. II, Lahore and others" reported as PLD 2016 SC 951, whereby it was held that:- Supplementary statement recorded by prosecution witness after more than a month of the occurrence. Such statement had no legal value and was inadmissible in evidence and could not be used to contradict the contents of the FIR. Supplementary statement recorded subsequently to the FIR could be viewed as improvements made to the witness's statement. Lahore High Court (Multan Bench Multan) in case titled "Altaf Hussain and another v State and others" reported as 2010 PCr.LJ 1593 has reiterated same rational by observing that:- "Supplementary statement can be invented at any time because it was never signed or thumb marked by its maker by informant whereas any report under section 154, Cr.P.C. was also signed or thumb marked and the report was maintained at the police station and no possibility of any change or interpolation in the statement under section 154, Cr.P.C." Further reliance is placed on the judgment of apex reported as Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Amir Zaman v. Mehboob and others 1998 SCMR 685; Zulfiqar Hussain v. The State 2011 SCMR 379 and Abid Ali v. The State 2011 SCMR 161. c. On 09.12.2021, statement under sction 164 Cr.P.C of one Khanzad Gul, father of the deceased was recorded, wherein he deposed that on the day of occurrence he heard fire-shots and when he came out of his house, he found his son in murdered condition. But the important and relevant portion of his statement is that Assistant Commissioner Fawad Khattak and Additional Assistant Commissioner Waheed Ullah reached to the spot and both of them collected the CCTV footages of the camera, installed at the building of Government School, however, when he was examined in court as PW-06, whereby he made certain improvements but in no way, he could be given the status and caliber of an eye-witness. Ocular account furnished through PW-4, PW6 is not capable to provide a base for conviction of appellants. Confessional statements of appellants:- Legal Aspect: - (A) In absence of corroboration whether a retracted confession can be based for conviction in a capital charge? (B) Court has to see voluntariness of the confession and whether it was free from force or coercion? (A) Insofar as first formulated question is concerned, no doubt it is settled by now that if the Court was satisfied that confession so made by an accused is voluntary and truthful, in legal parlance, then same alone can be made basis to sustain conviction on the capital charge, event it is retracted or resiled later on, however, rule of prudence demands that a confessional statement should be corroborated by other evidence direct or circumstantial, in material particulars, which is not available in the present case. In case titled "Maj. (Rtd.) Tariq Mehmood v. State" reported as 2002 SCMR 1493, the following view was formed by honourable apex Court: - "If the Court was convinced that the confession was voluntary and truthful, the same, even if retracted, could be sufficient to sustain the conviction on the capital charge. Rule of prudence, However, demands that a confessional statement should be corroborated by other evidence direct or circumstantial in material particulars. Judicial confession of the accused." Record transpires that statements under section 364/164, Cr.P.C of appellants were recorded after they remained in police custody for thirteen days, therefore, it cannot be presumed that these were true and voluntary confessions. Appellants have retracted the confessions by stating in their examination under section 342, Cr.P.C that the same were false and fabricated and that they had never confessed their guilt. It was also asserted in response to question No. 12 that confessions have been recorded by local police through use of sheer force and they have also been warned of dire consequences to be made missing persons in case they did not opt to record their confessions. No doubt, conviction of an accused can be based on his belated and retracted confession but when it is corroborated by independent source, which element is hard to find in the case in hand. It was observed by Hon'ble Supreme Court in the case of "Muhammad Ismail and others v. State" reported as 2017 SCMR 898 that in absence of any independent corroboration retracted judicial confession could not be sufficient by itself for recording or upholding conviction of accused. (B) As far as above-referred second formulated question is concerned, suffice it to say, as per record, appellants were arrested on 14.11.2021, although while replying to questions in their respective confessions, they said that they were arrested on 13.11.2021 and as per their version they were kept in illegal detention for 24 hours and they were shown arrested on 14.11.2021. This aspect of the case was not probed by learned Magistrate. Even he did not inquire from police official who had brought appellants to his Court. If this narration of appellants was taken to be true, then there is nothing in rebuttal that they had remained in illegal detention for long 24 hours and both the appellants were tortured and forcefully compelled to make confessions. In the afore-mentioned backdrop of the case, confession was recorded at a belated stage on 26.11.2021 when they had already remained in police custody for long 13 days. It is settled law that confession recorded with delay over 24 hours is fatal to the acceptance of judicial confession and when there are circumstances which would cast shadow of doubt on its genuineness, then it should be excluded from consideration. Reliance is placed on case titled "Muhammad Pervez and others v. The State and others" reported as 2007 SCMR 670, wherein it was held that:- "In case all the facts are put in a juxtaposition, then it is crystal clear that confessional statement was recorded after five days as the appellant Pervez was remained in the custody of the local police. It is a settled law the delay of over 24 hours would normally be fatal to the acceptance of judicial confession as law laid down by this Court in Naqeebullah s case PLD 1978 SC 21 coupled with the fact that prosecution had failed to explain the delay in recording the confessional statement. Appellants during their examination under section 342, Cr.P.C have also levelled the allegations of torture and maltreatment by police for recording confession and further alleged that they were terrified by local police in police station during their long custody of 13 days and who forced them to confess their guilt, through sheer means of force, pressure and coercion. In order parlance, accused usually used such like tactics to saving his skin, however, their statements cannot be brushed aside without adjudging the same in light of attending circumstances of the case and other evidence on record. It was bounden duty of learned Magistrate concerned to look into all minute details in terms of custody of accused in police and alleged use of coercive measures, if any, used by local police before recording his confession or that he should have either himself or through a doctor physically examined the accused to confirm that he had not been tortured by police before recording his/her confession. Logic behind such precautions, as observed by Hon'ble Supreme Court in case titled "Azeem Khan and another v. Mujahid Khan and others" reported as 2016 SCMR 276, is 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 assurances that in case he was not guilty or was not making a confession voluntarily then in that case he would not be handed over back to the police. It was further observed by august Court that thereafter sufficient time for reflection was to be given after the first warning was administered and 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 safe hands. In the present case, learned Magistrate has shown a total alien to approach to the above-quoted golden principles expounded by apex Court. In order to assess evidentiary value of confession recorded appellant namely Dawood, both question and answer to question No. 12 are reproduced as under:- Thus, keeping in view the delay in recording confessions of appellants and failure of learned Magistrate to take necessary precautions before recording their statements, it cannot be safely held that they had voluntarily recorded their confessions without any torture, pressure or coercion. Reliance is placed on case titled "State v. Asfandyar Wali and others" reported as 1982 SCMR 321, wherein it was observed that: - "According to the settled law, the delay in recording the confession was absolutely shocking. Secondly, the accused was the literally being produced from the dungeons of a medieval Fort. As these circumstances invited suspicion, the least that the Magistrate was required to do was to question the accused about his treatment in custody, and to verify for himself that the body of the accused did not bear any marks of ill-treatment. As these elementary safeguards for recording a confession were disregarded, we respectfully agree with the view of the learned Judges that no reliance whatever can be placed on Asfandyar's confession. Further ahead in ibid judgment of Muhammad Pervez Supra it was also held apex Court that:- "In case all the facts are put in a juxtaposition, then it is crystal clear that confessional statement was recorded after five days as the appellant Pervez was remained in the custody of the local police. It is a settled law the delay of over 24 hours would normally be fatal to the acceptance of judicial confession as law laid down by this Court in Naqeebullah's case PLD 1978 SC 21 coupled with the fact that prosecution had failed to explain the delay in recording the confessional statement." There is nothing on file to suggest that before producing appellants to learned Magistrate for recording their confessions, they were medically examined qua their physical capability to make confession or otherwise. As stated earlier, appellants were statedly arrested on 14.11.2021, on the following day when they were produced before the court, they did not confess their guilt. Police have obtained remand of appellants till 26.11.2021 in three different intervals, however, they did not make any confession during this long intervening period. So, this is how, there is a delay of 13 days in recording confession of appellants. During this period of time, they were produced 03 times before the court but their confessions could not be recorded. It indicates that appellants had not recorded their confessions voluntarily rather they had been forced during their police custody to confess their guilt before the Court. Reliance is placed on the judgment of apex Court, rendered in case titled "State through PG Sindh and others v. Ahmed Umar Shaikh and others" reported as 2021 SCMR 873, whereby it was held that: - "This delay by itself was indicative of the fact that the confessional statements were not made voluntarily. If the object of the accused persons was to tell the truth and they were volunteered to make such statement the same must have been recorded on the first or…
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