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Official Citation: 2025 PHC 92
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2025
Decision Date: 2025-04-30
Parties: Jafar Khan and others vs The State and others
Ruling Summary: This decision was rendered by the Peshawar High Court on 2025-04-30, officially reported as 2025 PHC 92. In this matter between Jafar Khan and others and The State and others, 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 2025PHC92
Court Name: Peshawar High Court Judge(s): Muhammad Ijaz Khan, Sabit Ullah Khan Title: Jafar Khan and others vs The State and others Case No.: Cr.A No. 259-M,241-M/2024, Cr.R No. 63-M/2024 Date of Judgment:2025-04-30 Reported As: 2025 PHC 92 Result: Appeal Partly Allowed
JUDGMENT
JUDGMENT SABIT ULLAH KHAN, J- The convicts namely (i) Jafar Khan (ii) Sher Alam (iii) Sebab Khan (iv) Iqbal Hussain sons of Gul Dad Khan (v) Haji Nawab (vi) Usman Ghani (vii) Gul Nawab sons of Jafar Khan (appellants in the instant appeal), (viii) Bakht Zaman and (ix) Pehlawan sons of Gul Zarin (appellants in the connected Cr.A No. 241-M/2024) faced joint trial for the offences under sections 302, 457, 148, 149, 109/34 of the Pakistan Penal Code (PPC) read with section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 (A.A) reported vide case FIR No. 200 dated 11.04.2021 registered at Police Station Aloch District Shangla. On conclusion of trial, the learned Sessions Judge/Zilla Qazi/MCTC Shangla (Trial Court) vide judgment dated 21.09.2024 convicted and sentenced the appellants, the detail of which is as follows: Appellants Sher Alam, Sebab Khan, Iqbal Hussain & Haji Nawab (i) Under Sections 148/149 PPC. Imprisonment for 03 years each with fine of Rs.20,000/ each or in default thereof to undergo further 03 months S.I each. (ii) Under Sections 457/149 PPC Imprisonment for 05 years each with fine of Rs.30,000/ each or in default thereof to undergo further 03 months S.I each. (iii) Under Section 302(b)/149 PPC Death sentence each on four counts for the murders of Gul Zarin, Atta-ur-Rahman, Faiz-ur- Rahman and Aziz-ur-Rahman with payment of Rs.500,000/- each appellant to LRs of each
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deceased as compensation under Section 544-A, Cr.P.C. or, in case of default thereof, to undergo further six months S.I each. (iv) Under Section 15 A.A. Imprisonment for 03 years each with fine of Rs.30,000/- each or, in default thereof, to undergo further 02 months S.I each. Appellants Jafar Khan, Usman Ghani, Gul Nawab (i) Under Sections 148/149 PPC. Imprisonment for 03 years each with fine of Rs.20,000/ each or in default thereof to undergo further 03 months S.I each. (ii) Under Sections 457/149 PPC Imprisonment for 05 years each with fine of Rs.30,000/ each or in default thereof to undergo further 03 months S.I each. (iii) Under Section 302(b)/149 PPC Life imprisonment each on four counts for the murders of Gul Zarin, Atta-ur-Rahman, Faiz- urRahman and Aziz-ur-Rahman with payment of Rs.500,000/- each appellant to LRs of the deceased as compensation under Section 544-A, Cr.P.C. or, in case of default thereof, to undergo further six months S.I each. (iv) Under Section 15 A.A. Imprisonment for 03 years each with fine of Rs.30,000/- each or, in default thereof, to undergo further 02 months S.I each. Appellants Bakht Zaman and Pehlawan (i) Under Sections 302/109 PPC. Life imprisonment each on four counts for abetment of the murders of their father Gul Zarin and step-brothers Atta-ur-Rahman, Faiz-ur-Rahman and Aziz-ur-Rahman with payment of Rs.500,000/- each appellant to LRs of the deceased as compensation under Section 544-A, Cr.P.C. or, in case of default thereof, to undergo further six months S.I each.. The sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. was also extended to the appellants. Being aggrieved, appellants/convicts (i) Jafar Khan (ii) Sher Alam (iii) Sebab Khan (iv) Iqbal Hussain sons of Gul Dad Khan (v) Haji Nawab (vi) Usman Ghani (vii) Gul Nawab sons of Jafar Khan have jointly filed the instant appeal while appellants Bakht Zaman and Pehlawan (abettors) have challenged the judgment of the learned trial court through the connected Cr.A No. 241-M/2024. Complainant Shazia has also filed the connected Cr.R No. 63-M/2024 seeking enhancement of the sentences of imprisonment awarded to appellants to normal penalty of death. 2. The harrowing incident occurred on the night of 11.04.2021 at around 01:00 A.M at the residence of Gul Zarin son of Manday, situated in Village Bugyar, within the jurisdiction of Police Station Aloch, District Shangla. According to the prosecution, a group of unknown armed assailants, their faces muffled to conceal their identities, surreptitiously entered the house while the family was asleep. At the time of the occurrence, Mst. Shazia daughter of Gul Zarin and her sister-in-law Mst. Jehan Ranra (widow of deceased Atta-ur-Rahman) were asleep in one of the rooms, while her father Gul Zarin and brothers Aziz-urRahman, Atta-ur-Rahman and Faiz-ur-Rahman were resting in the adjoining rooms having no doors and the open veranda. Upon intrusion, the attackers stormed into the house, prompting the women to awaken in panic and raise hue and cry. In response, one of the assailants forcefully struck the bed of Mst. Jehan Ranra with the butt of his Kalashnikov and threatened both the women to remain silent. The alarmed cries, however, alerted the male family members on which the intruders exited the room and opened indiscriminate fire on Gul Zarin and his sons who sustained multiple firearm injuries and succumbed to their wounds at the scene, resulting in an unspeakable family tragedy that shook the local community. Upon receiving
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information, the local police arrived at the crime scene at approximately 03:00 A.M where Mst. Shazia narrated the entire episode in the presence of Mst. Jehan Ranra, leading to registration of the report initially in the form of Murasila. The injury sheets and inquest reports of the deceased were prepared and the bodies were sent to hospital for the purpose of postmortem examination whereas the Murasila was sent to police station where the FIR was chalked out against unknown accused. 3. A Joint Investigation Team (JIT) was constituted for probing the matter. The key role in the investigation was played by Juma Rahman, the Investigating Officer. On the same day, he visited the crime scene, prepared the site plan on pointation of the eyewitnesses and recovered various incriminating articles, including blood samples, crime empties of 7.62 bore and 30 bore pistol, bullets whereas two energy-saver bulbs were subsequently taken into possession from the veranda. Notably a crime empty of 12-bore shotgun and blood-stained sand and earth were recovered from the link road outside of the house of occurrence. The mentioned crime empty was sealed in Parcel No. 14 whereas the blood-stained sand and earth were sealed in Parcel Nos. 15 to 17. Additionally, the blood-stained garments of the deceased were also secured through respective recovery memos. The details of these recoveries will be discussed at appropriate stages in the judgment. On 12.04.2021, the recovered empties, bullets, blood samples and blood-stained garments were dispatched to the Forensic Science Laboratory (FSL) for analysis under separate transit certificates. The relevant result spelt out from the FSL report (Ex.PK/2) regarding the empties sent to the lab on the very following day of the occurrence, is very important and needs reproduction in tabular form. Type of empties Detail of empties Result. 30 bore Cl, C2 & C6Fired from one and the same 30 bore weapon 7.62 bore C3, C4 & C5Fired from one and the same 7.62 bore weapon 12 bore C712 bore empty. No opinion (being single empty) During the course of investigation, it transpired that appellants Jafar Khan, Sher Alam and Sebab Khan (sons of Gul Dad Khan), along with Gul Nawab, Haji Nawab and Usman Ghani (sons of Jafar Khan) had committed the quadruple homicide while acting as hired assassins on the instructions of co-appellants Bakht Zaman and Pahlawan, who are sons of deceased Gul Zarin from another wife. The motive behind the incident was the resentment of the abettors over being denied their share in their father's property. All the accused were formally nominated based on the statement of the complainant Mst. Shazia and her sister-in-law Mst. Jehan Ranra. Except injured appellant Iqbal Hussain, the remaining appellants were arrested on 14.04.2021. During the investigation, on 18.04.2021 all the appellants except the abettors and Iqbal Hussain led the Investigating Officer to a cave where they had concealed the weapons used in the offence. On their pointation, one Kalashnikov, three pistols and three shotguns, including two trapdoor shotguns (commonly known as 3,3 4), two of which had an empty cartridge each lodged in the chambers, were recovered from the cave. The weapons were taken into possession, sealed on the spot and sent for forensic03
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examination on 20.04.2021. The opinion of the Firearms Expert per FSL report EX.PK/4, after recovery of the weapons qua the empties already sent to FSL on 12.04.2021 is reproduced for ease of reference. Type of weapon/ empties with name of accusedDetail of empties Result/ Remarks 30 bore pistol No. 3142 (Parcel 1) (appellant Sher Alam)Cl, C2 & C6 (Parcel Nos. 5, 6 & 13) Fired from pistol No.3142 (P1) 30 bore weapon. (Matching) 7.62 bore SMG No. 585 (Parcel 24) (Appellant Haji Nawab)C3, C4 & C5 (Parcel Nos. 7, 8 & 9) Fired from SMG No 585. (Matching) 12 bore shotgun No. 149923 (Parcel-28) (Appellant Sebab)C7 (recovered from the spot) (Parcel- 14) C9 (recovered from the chamber of rifle) (Parcel-29)Fired from shotgun No.149923 (Matching) 12 bore shotgun No. Nil (Parcel- 26) (Appellant Usman Ghani)C8 (recovered from the chamber) (Parcel-27)Fired from shotgun No. Nil. (Matching) 12 bore shotgun No. 2222 (Parcel-34) (Appellant Iqbal Hussain)C10 (recovered from the chamber) (Parcel-35)Fired from shotgun No.2222 12 bore shotgun No. Nil (P- 26) (Matching) 30 bore Pistol No. Nil (Parcel-32) (Appellant Jafar)Nil (Non-matching) 30 bore Pistol No. 111 (Parcel 36) (Appellant Gul Nawab)Nil (Non-Matching) 4. The Investigating Officer also placed on record a copy of Daily Diary No. 38 dated 11.04.2021 (Ex.PW-7/2) lodged on the report of appellant Iqbal Hussain in injured condition. Keeping in view its direct relevance to the main occurrence, this report holds significant evidentiary value and will be referred to during the course of discussion; hence, its reproduction is warranted for the sake of proper reference.
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This matter was also probed by police under Section 156(3), Cr.P.C pursuant to which a Finding Report (Ex.PW-9/4) was submitted. From this report, it emerged that appellant Iqbal Hussain had in fact sustained injuries from the firing of his brother/co-accused Haji Nawab during the commission of the quadruple murders at the residence of Gul Zarin. During the course of inquiry, the statements of Said Ali, a Medical Technician, were recorded under Sections 161 and 164, Cr.P.C, wherein he disclosed that appellant Sebab had approached him at his residence, informing him that appellant Iqbal Hussain had been accidentally injured by co-accused Sher Alam. However, the said technician declined to provide medical assistance. It is further noteworthy that based on a false version of events, a separate criminal case was registered against appellant Iqbal Hussain, wherein he was eventually convicted and sentenced on the basis of his own plea of guilt. During investigation, the Investigating Officer also took into possession the blood-stained garments of the appellants who had taken their injured co-accused Iqbal Hussain from the crime scene. A cot was also taken into possession from PW Muhammad Ayyub, cousin of Sher Alam etc which had been used for carrying injured accused. In support of this recovery, statement under section 164, Cr.P.C of Muhammad Ayub was recorded, however, he was abandoned being the cousin of accused. Additionally, the accused pointed out the location where the conspiracy was hatched between appellants Bakht Zaman and Pahlawan with appellants Jafar Khan, Sher Alam and Haji Nawab, for committing the murders in consideration of Rs.500,000/-. On 19.04.2021, appellants Haji Nawab, Usman Ghani and Gul Nawab recorded their confessional statements before the Judicial Magistrate, whereas appellant Iqbal Hussain, who was then under treatment in hospital, recorded his judicial confession on 22.05.2021. 5. Upon completion of the investigation, the final report under Section 173, Cr.P.C. was submitted before the court. After fulfilment of the requisite legal formalities, formal charges were framed against the appellants, to which they pleaded not guilty and opted to face the trial. In order to establish its case, the prosecution examined as many as nineteen witnesses and, thereafter, closed its evidence. Subsequently, the appellants were examined under Section 342, Cr.P.C during which they denied the allegations and professed innocence. They also retracted their earlier judicial confessions, alleging that the same were extracted under duress and severe police torture. Upon conclusion of the trial, the learned trial court found the appellants guilty of the offences, hence, convicted and sentenced them accordingly vide judgment dated 21.09.2024. Since the details of the sentences have already been outlined in the first para of this judgment, reference thereto is not repeated here. Aggrieved by their convictions, the appellants have filed their respective appeals whereas the complainant has filed the revision petition. 6. We have heard the learned counsel for the parties, including the learned Assistant Advocate General representing the State and have carefully perused the record with their able assistance. 7. The principal objections raised by the learned counsel for the appellants during the course of arguments are summarized as under:
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The incident was reported with an inordinate and unexplained delay of two hours with further objections that the initial report was lodged against unknown persons and the appellants were nominated at a belated stage without disclosing the source of such information. The complainant did not identify the assailants at the time of occurrence and no identification parade was conducted through any eyewitness. The prosecution relied solely on the testimony of the complainant, who has materially improved her initial version. Key eyewitnesses, namely Mst. Parwana and Mst. Jehan Ranra, were deliberately withheld without any plausible justification, warranting an adverse inference against the prosecution. The learned trial court erred in basing the conviction primarily on the testimony of related and interested witnesses, which lacked corroboration from any independent or impartial source. The confessional statements of appellants Sher Alam, Haji Nawab and Usman Ghani were recorded after a delay of five days, while that of appellant Iqbal Hussain was recorded after an unexplained delay of 45 days. It is contended that these statements were the result of torture, coercion and police pressure, thereby rendering them inadmissible and devoid of legal credibility. The recovery of the alleged weapons is manipulated and fictitious, devoid of evidentiary value and insufficient to lend support to the prosecution's version. No reliable evidence has been brought on record to substantiate the alleged conspiracy between the purported abettors Bakht Zaman and Pahlawan and the remaining accused. There is no credible or independent evidence on record to establish that the appellants Jafar Khan and his family members, were the actual perpetrators. No motive was mentioned in the FIR, and the prosecution failed to substantiate the subsequently introduced motive through any convincing or legally admissible evidence. The allegation that the abettors orchestrated the murder of their own father and brothers over a property dispute is inherently improbable and contrary to human conduct and common sense. The prosecution case is marred by serious contradictions and inconsistencies which raise substantial doubts regarding the involvement of the appellants, but the benefit of such doubt has not been extended to them in violation of settled legal principles. 8. Resolution of the objections so raised necessitates a thorough reappraisal of the evidence on record. As regards the delay in lodging the report, it is noteworthy that the names of the appellants were not mentioned in the initial report. This factor alone negates any inference of mala fide or false implication at the inception of the case. Therefore, the delay in reporting the incident does not appear to have caused any prejudice to the appellants. As to the broader impact of the delay on the case of prosecution, the surrounding circumstances are sufficient to account for it. Admittedly, the occurrence took place at midnight, in which all adult male members of the house, except a minor child, were brutally murdered, leaving only three female members of the family behind. In such a traumatic and chaotic environment, the inability of the surviving women to immediately contact the local police during the night is both natural and understandable. Thus, under no reasonable interpretation can the said delay be construed as beneficial to the appellant. In this regard, valuable guidance can be drawn from the judgment of the Hon'ble Supreme Court in Abid Hussain and another v. The State and others reported as 2024 SCMR 1608, wherein the apex Court comprehensively addressed the legal effect of delayed reporting in murder cases involving extraordinary or distressing circumstances. The relevant excerpt from the judgment is reproduced below to elucidate the principle and to aid in the proper appreciation of the delay in the instant case. The Hon'ble Supreme Court observed that: "8. At this juncture, it is pertinent to highlight a persistent issue in the society. In instances of murder cases, people often hesitate to provide any sort of assistance to the victim or family of
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deceased, such as declining to provide their vehicles to transport the injured or deceased to hospitals. This reluctance typically arises from fears of involvement in the criminal cases and distrust of law enforcement. However, this reluctance leads to significant consequences, including delays in medical care for the injured and challenges for law enforcement/ investigations. This case is no exception to that, because, in this case also father of the deceased (complainant) strived hard to approach the Police Station to report the incident, he went in the bus therefore there was a delay of 2 and half hours in the lodging of FIR. In light of circumstances mentioned above, this delay is not fatal to the prosecution case. Reference can be made to the case of Nasrullah and others v. The State (1996 SCMR 1926), wherein this court has ruled that delay of 78 hours in lodging FIR was not fatal to the case of prosecution if there is a convincing explanation for the alleged delay. In the instant case, delay in lodging the FIR has plausibly been explained by the complainant. Even otherwise in the absence of previous enmity the delay in lodging the FIR would not matter much. The ocular account is fully supported by the medical evidence and corroborated by the circumstances of the case. Moreover, High Court in impugned judgment has considered the delay in lodging FIR with ample reasoning and has held that same is not fatal to prosecution case". 9. The belated nomination of the appellants, though is usually considered as a significant aspect in criminal cases but in the present case it finds adequate justification when examined in light of the attending circumstances of the case. In the initial report, the complainant did not allege any enmity with anyone, thereby eliminating any presumption of a false implication or misdirection of criminal liability toward innocent persons. Importantly, at the time of lodging the FIR, the complainant had not recognized the assailants, and in the face of such a traumatic and abrupt incident during night, she lacked any concrete clue to directly attribute the offence to specific individuals. Hence, the non-disclosure of the appellants' names in the initial report, viewed in this context, is not a circumstance that can be exploited in favour of the appellants. Subsequently, during the course of investigation, the JIT, commencing from the possible motive, meticulously pieced together various segments of the episode, which led them to the conclusion that appellants Bakht Zaman and Pahlawan, sons of deceased Gul Zarin, had orchestrated the murders of their father and stepbrothers. It surfaced that, for this purpose, they had hired the remaining appellants for a sum of Rs.500,000/-. This investigative outcome was not the result of mere conjecture but a systematic probe that uncovered tangible links connecting the abettors and perpetrators. In this backdrop, the absence of the appellants' names from the FIR, particularly when their identities were deliberately concealed and they were unknown to the surviving witnesses, does not raise any suspicion about the authenticity of their subsequent nomination. If courts were to routinely discard such post-investigation revelations merely because the accused were not named initially, it would provide a dangerous incentive for perpetrators to mask their identities and evade liability. Such an approach would severely compromise the administration of justice. Furthermore, nothing has been elicited in cross-examination of the prosecution witnesses to suggest that the complainant had falsely implicated her stepbrothers and the remaining appellants out of mala fide intentions or for some ulterior motives. On the contrary, their consistent testimonies lend credence to the stance of prosecution. Therefore, the belated nomination, in the peculiar facts and circumstances of this case, is not only explainable but also legally sustainable in the facts and circumstances of the present case. Guidance in this regard is taken from Muhammad Sohail alias Sohaila v. The State reported as 2021 SCMR 795. In the mentioned case, the Hon'ble Supreme Court observed that: "4. Admittedly, the appellant or any of his co-accused/co-convict is not named in the FIR nor any suspicion has been shown in the FIR regarding the perpetrators of the incident. The occurrence, as per prosecution, took place in the shop of the complainant side and at the
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relevant time, complainant Abdul Rehman (PW4), his brother Attique ur Rehman, cousin Muhammad Saleem (PW5) and deceased Haji Muhammad Asghar were present along with employees working in the shop. While appearing before the learned trial Court, the complainant Abdul Rehman (PW4) and Muhammad Saleem (PW5) remained consistent on all the material aspects of the case and the defence remained unsuccessful in bringing on record any mala fide or ulterior motive on the part of prosecution witnesses for false implication of appellant and his co- accused/co-convicts in this case. 10. As regards the non-identification of the assailants by the complainant and the omission on the part of the prosecution to conduct a test identification parade, it is important to note that the foundational version of the prosecution, as reflected in the FIR, is that the assailants had muffled their faces at the time of the attack. In such circumstances, it was not reasonably possible for the complainant to identify the perpetrators during the commission of the offence. Consequently, the omission of the Investigating Officer to hold a test identification parade becomes inconsequential; as such an exercise would have been inherently futile. It is well-settled law that holding a test identification parade is not a mandatory legal requirement in every case. Where the identity of the accused is otherwise established through reliable and convincing evidence, whether direct or circumstantial, the absence of test identification proceedings does not vitiate the prosecution case. In the present case, the probative value of other incriminating material, including confessional statements, recoveries, and motive can suffice to prove the involvement of the accused beyond reasonable doubt. In this regard, reliance is placed on the case of Abdul Aziz v. The State and another reported as PLD 1999 Quetta 1, wherein it was held that: "There is no cavil to the proposition that before the identification parade the witness must disclose the context in which he identified the accused i.e. the part played by the accused during the commission of the offence and as to how and under what circumstances he identified the accused. However, if identity of the accused persons is proved by other convincing evidence, non-identification or absence of identification test will be immaterial". In view of the above principles, the omission to conduct identification proceedings in the present case cannot be treated as a fatal flaw, particularly when the identity of the accused stands established through other credible pieces of evidence on record. 11. At the outset, we acknowledge the inconsistencies and improvements in the…
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