Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2023 PHC 510
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-11-22
Parties: Shahzad Kiyani vs The State etc
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-11-22, officially reported as 2023 PHC 510. In this matter between Shahzad Kiyani and The State etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023PHC510
Court Name: Peshawar High Court Judge(s): Muhammad Ijaz Khan, Kamran Hayat Miankhel Title: Shahzad Kiyani vs The State etc Case No.: Criminal Appeal No.140-A/2022 with Murder Reference No.4-A/2022 Date of Judgment:2023-11-22 Reported As: 2023 PHC 510 Result: Murder Reference Answered in Negative
JUDGMENT
JUDGMENT MUHAMMAD IJAZ KHAN, J.- This single judgment is directed to decide the instant Criminal Appeal No.140-A/2022 titled "Shahzad Kiyani vs. The State etc" as well as the connected Criminal Appeal No.143-A/2022 titled "Taimoor Faridoon vs. The State etc" and Criminal Appeal No.148-A/2022 titled "Muhammad Khalid Umar vs. State" as all of them are outcome of the one and same judgment of learned Judge, Anti Terrorism Court, Hazara Division, Abbottabad dated 26.05.2022 in a case registered vide FIR No.14 dated 10.12.2016 under sections 302 PPC, 21-I, 21-J, 7 of Anti- Terrorism Act, 1997 read with section 15 of The Khyber Pakhtunkhwa Arms Act, 2013 at Police Station CTD Hazara Division, Abbottabad, whereby accused Shahzad Kiyani (appellant herein), Taimoor Faridoon (appellant in connected Cr.A No.143-A/2022) and Muhammad Khalid Umer (appellant in connected Cr.A No.148-A/2022) were convicted and sentenced as under: I. Taimour Faridoon son of Muhammad Faridoon, (ii) Shehzad Kiani son of Ghulam Mustafa and (iii) Muhammad Khalid Umer son of Muhammad Hanif being held guilty of Qatl-e-Amd of Yousaf Hussain, therefore, they are CONVICTED AND SENTENCED TO DEATH under section 302/120-B PPC read with section 21-I of ATA, 1997 and also to pay Rs.15,00,000/- Fifteen Lac each as fine or in default thereof to further suffer simple imprisonment for one year each. The accused be hanged by neck till declare as dead by competent Medical Officer, however, subject to its Confirmation by Honourable Peshawar High Court. The amount of fine if recovered shall be paid to the legal heirs of deceased Yousaf Hussain as compensation within the meaning of section 544-A Cr.PC. II. (i) Taimour Faridoon son of Muhammad Faridoon, (ii) Shehzad Kiani son of Ghulam Mustafa and (iii) Muhammad Khalid Umer son of Muhammad Hanif being held guilty of Qatl-e-Amd of
---
## Page 2
Yousaf Hussain which created fear, panic and sectarian hatred in the society, therefore, they are CONVICTED AND SENTENCED TO DEATH U/S 7(a) Anti Terrorism Act 1997. The accused be hanged by neck till declare as dead by competent Medical Officer, however, subject to its Confirmation by Honourable Peshawar High Court. III. (i) Taimour Faridoon son of Muhammad Faridoon, (ii) Shehzad Kiani son of Ghulam Mustafa and (iii) Muhammad Khalid Umer son of Muhammad Hanif are also found guilty of members of Proscribed Organization u/s 11-F(2) ATA, 1997 and CONVICTED AND SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR SIX MONTHS EACH. IV. (i) Taimour Faridoon son of Muhammad Faridoon, (ii) Shehzad Kiani son of Ghulam Mustafa and (iii) Muhammad Khalid Umer son of Muhammad Hanif are also found guilty of members of Proscribed Organization, participating in its activities, solicit, arrange and managed its meetings to support the banned Organization in all fields u/s 11-F (6) ATA, 1997 and CONVICTED AND SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR ONE YEAR EACH V. (i) Taimour Faridoon son of Muhammad Faridoon, (ii) Shehzad Kiani son of Ghulam Mustafa and (iii) Muhammad Khalid Umer son of Muhammad Hanif are also found guilty of members of Proscribed Organization by disseminating sectarian, religious hatred through electronic media and other means u/s 11-W ATA, 1997 and CONVICTED AND SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR FIVE YEARS EACH. VI. (i) Taimour Faridoon son of Muhammad Faridoon, (ii) Shehzad Kiani son of Ghulam Mustafa and (iii) Muhammad Khalid Umer son of Muhammad Hanif are also found guilty of members of hatching criminal conspiracy for the murder of Yousaf Hussain belonging to Shia Sect u/s 120-B PPC and CONVICTED AND SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR SIX YEARS EACH VII. (i) Taimour Faridoon son of Muhammad Faridoon and (ii) Shehzad Kiani son of Ghulam Mustafa are also found guilty for breach of license of pistol u/s 15-AA KPK read with section 19- AA KPK and CONVICTED AND SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR ONE YEAR EACH All the sentences shall run concurrently. Benefits of section 382-B Cr.PC are also extended in favour of accused." 2. Precisely, the facts of the present case as per record are that the complainant namely Mst.Zohra Bibi resident of Stadium Road Kurram Agency (then) residing at Badalzai Colony, Sheikhul-Bandi Abbottabad (PW-12) alongwith dead body of her husband namely Yousaf Hussain lodged a report to Cadel Abdul Ghafoor (then) SHO Police Station Cana Abbottabad (PW-15) in Emergency Ward of DHQ Hospital Abbottabad on 10.12.2016 at 20.20 hours to the effect that her husband was serving as Officer in WAPDA and those days he was posted in Kohat and were here at Abbottabad on leave. On that date, on the eventful evening, they all family members went to Abbottabad city for shopping in official pick-up No.0494-PKP Peshawar driven by her husband; after shopping her husband dropped them at their rented house and after parking the vehicle at WAPDA Colony, he was coming to home by foot. At about 7.30 p.m. when reached opposite Shamah Bakery Street, Murree Road near the house of Gul Zaman, unknown persons by disseminating fear and terror made indiscriminate firing with intent to murder him as a result of which he died on the spot; she further reported that they have got no enmity with anyone and stated that the occurrence seems to be in pursuance of sectarian terrorism; voice of firing was also heard by the inhabitants of nearby Abadi. She charged unknown culprit(s)/terrorist(s) for the commission of offence. The said SHO prepared the injury-sheet and inquest-report (Ex.PW-15/1 and Ex.PW-15/2) of the deceased and reduced the report of the complainant into writing in shape of Murasila (Ex.PA) and the same was sent to the Police Station through constable Tariq Zaman No.697 for registration of case; resultantly instant FIR (Ex.PW-1/1) was registered. 3. On registration of the case, a full-fledged investigation was carried out and then complete challan was put in court against the appellants and the absconding co-accused namely Raja
---
## Page 3
Mustafa Sultan. After observing the codal formalities, the trial court framed charged against all the accused under the relevant sections of law to which they pleaded not guilty and claimed trial which accordingly commenced. In support of its case, prosecution produced and examined as many as eighteen (18) witnesses including the important statements of Muhammad Tanveer Khan (then) SHO Police Station CTD Hazara at Abbottabad. He chalked out FIR and stood marginal witness to recovery memo Ex.PW-1/2 vide which garments and other belongings of the deceased were taken into possession. PW-2 is Rustam Khan ATI Police Station CTD Abbottabad. He stood marginal witness to recovery memo Ex.PW-2/1 vide which mobiles with their respective SIMs produced by appellants Khalid Umer and Shahzad Kiyani were taken into possession. He also stood marginal witness to recovery memo Ex.PW-2/9 vide which I.O. allegedly took into possession 9 MM crime pistol having five live rounds of 9MM loaded in it, at the pointation of appellant Taimour Faridoon as well as Nokia mobile alongwith SIM produced by him. Similarly, he stood marginal witness to the recovery memo Ex.PW-2/3 vide which I.O. allegedly took into possession motorcycle No.LOY-8087 on pointation of the co-accused Raja Mustafa as well as Nokia mobile alongwith SIM produced by him. He further stood marginal witness to recovery memo Ex.PW-2/4 vide which license copy of 9 MM pistol allegedly produced by relative of appellant Shahzad Kiyani was taken into possession by the I.O. He is also marginal witness to recovery memo Ex.PW-2/5 vide which I.O. took into possession mobile phone of Taimour Faridoon which was allegedly used by him at the time of occurrence and the same was lost was produced by one Muhammad Parvez. PW-7 is Dr.Zia Qamar, who conducted autopsy on the dead body of the deceased. He exhibited post mortem report as Ex.PM. PW-11 is Wasim Abbas who is son of the deceased. Though during the days of occurrence he was in Islamabad in connection with his studies, however, on information being conveyed to him by his mother he came to Abbottabad. He stated that investigation and recoveries made them believed that his father was murder by the accused and thus he recorded his statement under section 164 Cr.PC wherein he charged them for the commission of offence. PW-12 is Mst.Zohra Bibi who is the complainant of the instant case. She narrated pre and post events regarding the occurrence and exhibited her report as Ex.PA. PW-13 is Rizwan Habib (then) SP CTD Hazara Region at Abbottabad. He recorded confessional statement of appellant Taimour Faridoon on 05.03.2017 as well as confessional statements of appellants Shahzad Kiyani, Muhammad Khalid Umer and the absconding co-accused namely Raja Mustafa on 08.03.2017. PW-14 is Ghulam Hamid (then) Judicial Magistrate, Alpuri Shangla who on 09.02.2018 after observing the codal formalities, recorded confessional statements of all the four accused (including three appellants) who were produced before him by Major Nadeem of Military Intelligence, and exhibited the same as Ex.PW-14/1, Ex.PW-14/4, Ex.PW-14/7 and Ex.PW-14/10), questionnaires as Ex.PW-14/2, Ex.PW-14/5, Ex.PW-14/8 and Ex.PW-14/11 and issued certificates to this effect which are Ex .PW-14/3, Ex.PW-14/6, Ex .PW-14/9 and Ex.PW-14/12 and thereafter handed over the accused to Military Officer. PW-16 is Abdur Rasheed Khan (then) Inspector Police Station CTD Hazara who conducted investigation in the instant case. PW-17 Shakir Iqbal who procured and provided the CDR and NADRA Verysis of different numbers and also conducted Geo fencing and exhibited i2 flow chart as Ex . P W- 1 6/19. When prosecution closed its evidence, statements of the appellants were recorded under section 342 Cr.P.0 before the learned trial court, wherein they claimed innocence, however, they neither wished to produce the defense evidence nor desired to be examined as witness under section 340(2) Cr.PC. Then after hearing arguments of learned counsel for the parties, the learned trial court vide order and judgment dated 26.5.2022 convicted and sentenced the appellants as mentioned in Para No.1 of this judgment, whereas co-accused namely Raja Mustafa Sultan was declared as a Proclaimed Offender as he absconded during trial. The three appellants have now called in question their convictions and sentences recorded vide the aforesaid order and judgment through the aforesaid criminal appeals.
---
## Page 4
4. Arguments of learned counsel for the parties and learned Assistant Advocate General were heard in detail and record perused with their able assistance. 5. The main arguments of learned counsel for the appellants were that the impugned capital punishment has been recorded against the appellants on the basis of their delayed confessional statements either before the Superintendent of Police/PW-13 or before the court which unreasonable delay casts serious doubt on the voluntariness of the same. He further argued that even the recovery of the pistol from appellant Taimoor Faridoon and sending the same to FSL alongwith recovered empties has not been proved beyond the doubt, therefore, the positive Forensic Science Laboratory' Report too is of no benefit for the prosecution and thus the learned trial court has wrongly awarded capital punishment to the appellants. As against this, learned counsel representing complainant and learned Assistant Advocate General submitted that the appellants belong to the Proscribed Organization and they have murdered the deceased in an organized manner, therefore, they have rightly been convicted and sentenced to death. 6. Before dilating upon the aforesaid submissions of the learned counsel for the parties, there is a consensus on both ends to the effect that:- i) In this case, there is no ocular or direct evidence available, ii) The appellants have been awarded the capital punishment (death) on the basis of: (a) Their confessional statements and (b) Positive Report of FSL viz-a-viz matching report of the pistol and crime empties recovered from the spot. Thus in view of the above admitted position, this court would proceed to analyze and evaluate the prosecution evidence qua the guilt or otherwise of the appellants. 7. It is the case of prosecution as reported by Mst. Zohra Bibi/widow of the deceased namely Yousaf Hussain (PW-12) to the effect that her husband was serving as Officer in WAPDA and during those days he was posted in Kohat, however, on the day of occurrence, lie was at Abbottabad as he was on leave. On that day, in the evening time they all family members went to Abbottabad city for shopping in the official pick-up driven by her husband and then after shopping her husband dropped them at their rented house and after parking the vehicle at WAPDA Colony, he was on way back to home on foot when at about 7.30 p.m. he reached at the place of occurrence, some unknown persons made indiscriminate firing at him due to which he died on the spot. She further stated that they have got no enmity with anyone, however, she apprehended that the occurrence may be the result of sectarian terrorism, therefore, she charged unknown accused/terrorist(s) for the murder of her husband. 8. It is an admitted fact and as spelling out from the record that initially nobody was charged in the FIR as the instant FIR was registered against the unknown persons, however, at the very outset they were suspected to be terrorists and the occurrence was stated to be the result of sectarian terrorism. The very foundation of the instant case is a report (Ex.PA) which ultimately culminated in FIR (Ex.PW-1/I) and contents of the same have already been deciphered in Para No.2 of this judgment from which it is spelling and as admitted by the complainant namely Mst.Zohra Bibi when she appeared in the witness-box as PW-12 that she is not an eyewitness of the occurrence meaning thereby that the fact about the murder of deceased at the alleged time and place is just a hearsay evidence. She has further stated during her cross-examination that she charged the accused as during investigation they were found involved in the commission of offence. Apart from this, she did not bother to mention in her report (Ex.PA) the source through which she came to know about the occurrence of her husband's death, however, during her court statement as PW-12 she stated that their landlord came to her house and informed her about the murder of her husband. In view of above, there is no coherence in the contents of the FIR (Ex.PW-1/1) and statement of the complainant as PW-12, which makes both of them as unreliable, albeit, the learned trial court has
---
## Page 5
completely ignored such glaring lacuna in the prosecution case while passing the impugned judgment. Similarly, prosecution has neither produced Tariq Zaman No.697 who carried Murasila to the Police Station for registration of case nor PW Khursheed Khan ASHO who escorted the dead body from the spot to the hospital for post mortem examination. 9. Prosecution has not produced even a single witness who could say that he has seen any of the appellants near and around or at the scene of the occurrence despite the fact that as per site plan (Ex.PW-16/1) the occurrence took place on the roadside which is surrounded by thickly Abadi, so on the available record there is no ocular or direct evidence regarding the present occurrence as well as the presence of appellants on the spot. 10. As far as the confessional statements of the appellants are concerned, the record would show that it was after two months and 17 days of the occurrence when the present appellants were arrested as suspects on 27.02.2017 and on the next day i.e. 28.02.2017 they were produced before the Anti-Terrorism Court, Hazara Division at Abbottabad and who was pleased to grant six days of their police custody. The record further shows that after five days of police custody, one of the appellants namely Taimoor Faridoon allegedly recorded his confession statement on 05.03.2017 before the SP CTD/PW-13 but when on the next day i.e. 06.03.2017 he was produced before the Anti- Terrorism Court where he refused to record a confessional statement or to confess his guilt, therefore, he was sent to the judicial lockup. As far as the other two appellants namely Shahzad Kiyai and Khalid Umer are concerned, as stated hereinabove that when they were firstly produced before Anti-Terrorism Court, Abbottabad on 28.02.2017, six days police custody was granted and as such on the expiration of the aforesaid custody on 06.03.2017 they were again produced and one day police custody was granted. The record further indicates that on 07.03.2017 they were again produced and a further two days police custody was granted to the local police and it was after three successive police custody orders ranging from 28.03.2017 till 09.03.2017 when in the last phase of their police custody they allegedly recorded their confessional statements on 08.03.2017 before SP CTD Hazara Abbottabad, however, when on the next day when they were produced before the Judicial Magistrate on 09.03.2017 they too refused to record their confessional statements or to confess their guilt. 11. The record further indicates that the Counter Terrorism Department / local police after completing the investigation prepared a complete challan on 05.04.2017 as available on file, however, thereafter the trial of the appellants could not be commenced as in the meanwhile on 27.01.2018 the Federal Government decided to hand over the appellants to the Military Authorities. The record further indicates that after 14 days of their custody with the Military Authority they were again produced by Major Nadeem before Judicial Magistrate, Alpuri District Shangla on 09.02.2018 for recording their confessional statements and who too has allegedly recorded their confessional statements. In view of the above, on the available record, there are confessions of the appellants recorded under section 21-H of The Anti-Terrorism Act, 1997 by the Superintendent of Police/PW-13 and lately in their custody period there are confessional statements recorded by the Judicial Magistrate, Alpuri District Shangla, however, the aforesaid confessional statements either recorded by SP (CTD)/PW-13 or Judicial Magistrate, Alpuri/PW-14 could not be relied upon for the reasons highlighted hereinafter. 12. It is part of the record that the appellants were arrested on 27.02.2017 and out of them appellant Taimoor Faridoon has recorded his confessional statement before the SP CTD Hazara Abbottabad/PW-13 on the 5th day of his custody, whereas appellant Shahzad Kiyani and Muhammad Umar Khalid have allegedly recorded their confessional statements on the 12th day of their arrest and that too when three times successive police custody was granted to the CTD Authorities, therefore, such delayed recording of confessional statements casts serious doubt on
---
## Page 6
their truthfulness and voluntariness and thus no legal worth or sanctity or evidentiary value could be attached to such confessional statements as it prima facie shows that the same have been extracted from the appellants by the investigation officer just to provide crutches to the prosecution case. 13. It is also relevant to mention here that in this case, the prosecution has mainly relied on the confessional statements recorded by SP CTD/PW-13, however, it is noteworthy that under Article 40 of Qanun-e-Shahadat Order, 1984 any confession made before a police officer is not admissible in evidence, however, an exception has now been provided under Section 21-H of The Anti-Terrorism Act, 1997 where-under a confession made before a police officer who is not below the rank of DSP has been made admissible subject to pre-existence of certain conditionalities. The same section of law being relevant is reproduced below: "21H. Conditional admissibility of confession. Notwithstanding anything contained in the Qanoon- e-Shandat, 1984 (President's Order No. 10 of 1984) or any other law for the time being in force, where in any court proceedings held under this Act the evidence (which includes circumstantial and other evidence) produced raises the presumption that there is a reasonable probability that the accused has committed the offence, any confession made by the accused during investigation without being compelled, before a police officer not below the rank of a District Superintendent of Police, may be admissible in evidence against him, if the Court so deems fit." The language of the aforesaid provision has been couched by the Legislature in such a manner that it by itself speaks that a confession before a police officer who is not below the rank of District Superintendent of Police would be admissible subject to certain conditions and those conditions are that there must be some other circumstantial or other evidence which are sufficient enough to strongly raise the presumption that there is a reasonable probability that the accused has committed the offence and that for such confession recorded during investigation, an accused has not been compelled, however, if the aforesaid yardstick is applied to the case of present appellants it goes a long way to discard the so-called confessional statements recorded by the Superintendent of Police/PW-13 at Abbottabad for the reasons; firstly, that the same has been extracted from the appellants after obtaining the police custody as one of the appellants namely Taimoor Faridoon has allegedly confessed his guilt after five days of his police custody, whereas the other two appellants namely Shahzad Kiyani and Muhammad Khalid Umer have confessed their guilt after eight days of their police custody which fact, prima facie, speaks volume that appellants have been compelled for the same, therefore, the precondition as required for the admissibility of a confessional statement made before a police officer are apparently missing in the present case, therefore, the same could not be relied upon; secondly, the certificates appended with the aforesaid confessional statements would also show that the SP CTD/PW-13 has specifically stated that "the statement was recorded on my own dictation", which obviously means that he has not recorded the confessional statements in his own handwriting, however, he has neither named that person who has scribed these confessional statements nor the I.O. has recorded the statement of that scriber of the confessional statements nor that scriber has been produced by the prosecution to establish that the confessional statements so-recorded are in handwriting of the said scriber, therefore, this illegality too goes a long way to discard the so-called confessional statements recorded by the aforesaid Superintendent of Police. 14. The record also shows that after recording of the aforesaid confessional statements by Superintendent of Police (PW-13), the appellants were again handed over to the investigation officer rather the proper course for him was to have sent them to the judicial lockup, however, this act on the part of aforesaid Superintendent of Police has proved a blessing in disguise for the appellants as on the very next day when they were produced before the Judicial Magistrate, they outrightly refused to record any confessional statement. This fact alone is sufficient to establish the
---
## Page 7
fact that the so-called confessional statements recorded by the SP CTD is the result of coercions and compulsion and are not the outcome of any repentance. Had the appellants been repented then they would have definitely confessed their guilt before the Judicial Magistrate as well but admittedly they did not, therefore, on this score too, the confessional statements could not be relied upon for recording the convictions of the appellants.
15. It was also noted that in case of one of the appellants namely Taimoor Faridoon, the Superintendent of Police/PW-13 before recording his confessional statement, has not satisfied himself regarding the number of days for which the said appellant has remained in police custody as the answer to the relevant question No.6 as transpired from Ex.PW-3/2 is blank. Similarly, all the appellants were promised by the said SP/PW-13 as transpires from the question No.2 of the questionnaire that the appellants were asked that if they make a confession or refuse to do so they will not be remanded to police custody and will be sent to judicial lockup, however, despite this promise and commitment, the record would indicate that after recording their confessional statements, they were again…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.