2026 PLP 466 (YLR)

Farah Jamshed, J.

This appeal has been filed against the judgment dated 09.01.2024, handed down by learned Additional Sessions Judge, Sadda Kurram, in case FIR No.126, dated 24.6.2021, registered under Sections 302, 364, 404, 201, 202, 109 P.P.C read with Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 of Police Station City, Lower Kurram, whereby the co-accused Muhammad Saddiq was acquitted of the charges levelled against him, while appellant was convicted and sentenced as following:- Under section 302(b) P.P.C: To suffer.life imprisonment and to pay compensation of Rs.500,000/- in terms of Section 544-A, Cr.P.C, which shall be recoverable as arrears of land revenue or in default thereof to suffer six months simple imprisonment. Under Section 404 P.P.C:- To suffer two years rigorous imprisonment with fine of Rs.50,000/- or in default thereof, to undergo one month simple imprisonment. Under Sections 201/202 P.P.C:- To rigorous imprisonment for three years and fine of Rs.50,000/- or in default thereof, to suffer one month simple imprisonment. Under Section 15 Arms Act:- to rigorous imprisonment for five years. All the sentences were ordered to run concurrently. Benefit under Section 382-B, Cr.P.C. was extended to the convict/appellant. Background:

2. On 22,6.2021 at 8:20 hours, complainant Aslam Khan lodged a missing person report of his brother Muhammad Farooq, alleging that his brother, a police constable was posted at Warsak Pull Check Post, came home on 17.6.2021, on five days leave. On 21.06.2021, at about 10:00 a.m, in response to a phone call, his brother went out of his house; subsequently, he made short calls and SMS, informing that he was with his friends however, when he did not return home and his cell phone was also unresponsive, hence, being concerned about his safety and sudden disappearance, matter was reported to the police which was recorded in the shape of Madd Report No.4, dated 22.6.2021 (Ex. PW 1/1). During inquiry local police apprehended appellant Wajid Khan, on suspicion, alleging that he confessed to the of murder of Muhammad Farooq and led the police to the dead body of deceased who recovered the same from abandoned place-Balyamin Forest, hence Murasila, Ex. PW 6/3, was drafted and Wajid Khan, was formally nominated as an accused for the murder of brother of the complainant vide case FIR Ex. PW 1/2. The prosecution also alleged recovery of the deceased's mobile phones and the weapon of offence from friends of the appellant.

3. After the arrest of accused Wajid Khan on 24.6.2021, Olas Khan, brother of the complainant, recorded his statement under section 164, Cr.P.C before the Judicial Magistrate, Sadda Lower Kurram, whereby he also charged accused Muhammad Sadiq son of Hassan Khan for the abetment of the offence, hence, section 109 P.P.C was added in the FIR, therefore, accused Muhammad Sadiq was arrested on 15.9.2021. Trial and Sentence:

4. On completion of investigation, challan was submitted against the accused before the trial Court. Initially, accused Muhammad Sadiq was absconding but later on, he was arrested on 15.09.2021 and supplementary challan was put in court. On completion of legal formalities, formal charge was framed whereby both accused claimed trial. To establish its case, prosecution produced and examined twelve (12) witnesses, whereafter, accused was examined under section 342, Cr.P.C., wherein they once again professed innocence and false implication. However, neither they opted to be examined on oath in terms of Section 340(2), Cr.P.C., nor produced defence evidence. The learned trial Court, after hearing arguments and perusal of record, convicted the appellant Wajid Khan and sentenced him, as already mentioned above, whereas the co-accused Muhammad Sadiq was acquitted vide impugned judgment dated 09.01.2024, hence this criminal appeal.

5. We have heard the arguments of learned counsel for the appellant and the learned AAG assisted by learned counsel for the complainant. Record was gone through from cover to cover. Examination of Evidence:

6. Undeniably, it is a case of circumstantial evidence. There is no eye-witness of the alleged occurrence nor judicial confession had been made by the appellant. It appears that the learned trial Judge was mainly swayed on account of recovery of dead-body of the deceased on the pointation of appellant, recovery of the mobile sets of the deceased and weapon of the offence from the friends of appellant.

7. Evidence, in legal context entails existence or non-existence of a fact proved in the court of law. However, to qualify as evidence, it must align with the provisions of the Evidence Act, even if it convinces the judge of its authenticity Islam, 2021[1]., The Qanun-e-Shahadat Order, 1984 has categorized evidence as Oral and Documentary with further classification of primary evidence and secondary evidence under Chapter IV and V. As far as circumstantial evidence is concerned, the term is not explicitly defined in the Qanun-e-Shahadat Order, 1984. This legal proposition has evolved over time as a result of court judgments and guidance from domestic and international legislative instruments. According to the Ratanlal and Dhirajlal, the Law of Evidence, circumstantial evidence is a proof of pertinent facts from which one might deduce the presence of the facts at issue, or factum probandum, by a process of logical deduction (Ratanlal and Dhirajlal, 2018)[2]. In Islamic jurisprudence, this phenomenon can be traced back to the incident of Prophet Yousuf and his brothers narrated in the Holy Book in Surah Yousuf, verse

17. The relevant verse is referred as below: "They said: Our father, we went racing with one another and left Yusuf by our belongings and a wolf devoured him, but you will never believe us even if we speak the truth'. And they brought his shirt stained with false blood. He said: 'Nay, but your own selves have made up a tale."

8. At another place in verse 25 to 28 of the same Surah, the incident unfolding the event of Prophet Yousuf' and Zulekha, is another example of circumstantial evidence. The relevant extract is referred here for ease of reading: "Yusuf and the woman raced towards the door one behind the other and she tore his shirt from behind. In the process they met her husband at the door. On seeing him she cried out: 'what punishment does one deserve who shows evil intentions towards your wife? What else than he should be put in prison or tortured with painful torment'. Yusuf said: "It was she that seduced me". At this moment, a witness of her own folk testified saying: "If his shirt is torn from the front, then her tale is true and he is a liar, but if his shirt is torn from the back then she has told a lie and he is speaking the truth". When her husband saw Yusuf's shirt torn at the back, he said: "Surely it is a plot of you woman, certain mighty is your plot."

9. The analysis of these Quranic verses clearly explains that circumstantial evidence of the event pointed towards the innocence of Prophet Yousuf and the allegation raised by Zulaikha proved false and baseless. On this proposition it is generally taken as one of the points during arguments that witnesses may tell lies but not the circumstances however, extreme care and caution is required while evaluating cases based merely on circumstantial evidence as on occasions, parties craft circumstantial evidence for favourable verdict. In this context, the apex court in Muhammad Younus[3] case, has laid down following four guiding principles in order to prove a case on the basis of circumstantial evidence: - "The conviction can only be made on the basis of circumstantial evidence, if it excludes all hypothesis of innocence of the accused. The circumstantial evidence must be incompatible with that of the innocence of accused. It should be incapable of any explanation of any other reasonable hypothesis than that of guilt of accused. For proving a case through circumstantial evidence following four essentials are required: - (1) Circumstances from which conclusion is to be drawn should be fully established; (2) All facts should be consistent with hypothesis; (3) Circumstances should be of a conclusive nature; (4) Circumstances should lead to moral certainty and actually, exclude every hypothesis but one proposed to be proved."

10. Given these guiding principles, examination of the record of instant case leads us to the statement of made by the scribe of Murasila, namely Niaz Muhammad SHO, Pw-6, who was the first person of contact with dead body of deceased. According to his statement, Murasila, Ex. Pw- 6/3, was drafted by him and he sent the same to police station (P.S) through constable, Sharif Gul, for registration of FIR. He also prepared injury sheet, Ex. PW 6/1, and inquest report, Ex. PW 6/2, and handed over to HC Khiyal Muhammad along with dead body of deceased Muhamad Farooq for conducting postmortem. He stated that the appellant was interrogated on suspicion and during interrogation, Wajid Khan, appellant, confessed his guilt and on his pointation, the dead body was recovered from Bilyamseen Kass Forest. At his pointation, the site plan was prepared by the Investigating Officer. When cross-examined he admitted that he could not write and admitted that Murasila, Ex. Pw-6/3, was not in his hand-writing. Similarly, he admitted that the injury sheet was also not prepared by him, nor he recorded the statement of accused while interrogating him as suspect. Perusal of his cross-examination reveals that all documents bearing his signatures were not in his hand writing, raising doubts about the authenticity of recovery. Per his cross-examination, his statement under section 161 of the Cr.P.C. was not recorded by the I.O. though the site plan was prepared by the I.O at his pointation, however, no specific position has been assigned to the recovered crime empty from the spot.

11. Additionally, PW-5, HC Khiyali, who accompanied the SHO to the spot, contradicted the prosecution's narrative. According to his cross-examination, "no other person except me was present when the dead body was recovered," directly negating the claim that the appellant was present or that the body was recovered at his direction. Similarly, he self-contradicted himself by stating that: "I was present with SHO Niaz Muhammad and he recovered dead body of the deceased Muhammad Farooq from village Bilyamin Jungal and thereafter he prepared injury sheet and inquest report and handed over to me along with dead body which I carried to THQ Hospital Sadda for the post-mortem examination." In his cross-examination, he stated that: "The entire proceedings of writing of injury sheet and inquest report was prepared in the emergency room of THQ Hospital Sadda ..I was already on duty in the said hospital." (underline is for emphasis)

12. These contradictions severely undermine the spot proceedings viz-a-viz prosecution's assertion that the dead body was recovered pursuant to the appellant's confession and pointation. To believe the prosecutions version for establishing the nexus of accused with recovery proceedings, strong corroborative evidence was required to be brought on record, as held by the Supreme Court in Rehmatullah and 2 others'[4] case: - "

5. Since there is no direct evidence and the prosecution case hinges upon the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any link in the chain is missing then its benefit must go to the accused. In this regard, reference may be made to the cases of Ch. Barkat Ali v. Major Karam Elahi Zia and another (1992 SCMR 1047), Sarfraz Khan v. The State (1996 SCMR 188), Asadullah and another v. The State (1999 SCMR 1034) and Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103). In the case of Ch. Barkat Ali supra, this Court held as under: - "...Law relating to circumstantial evidence is that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. 'See Siraj v. The Crown' (PLD 1956 FC 123). In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused." In the case of Sarfraz Khan supra, this Court held as under: - "It is well settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other to the neck of the accused thereby excluding all the hypothesis of his innocence." In the case of Altaf Hussain supra, this Court laid down as under:- "7....Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the body of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain." Similarly, "Naveed Asghar and 2 others'[5] case, it was also held that: "The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person was that, if, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accused person could be suggested, the case was fit for conviction of the accused person on such conclusion; however, if such facts and circumstances could be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case was to be treated one of insufficient evidence, resulting in acquittal of the accused person. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touched the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances had to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain broke the whole chain and rendered the same unreliable; in that event, conviction could not be safely recorded, especially on a capital charge. Therefore, if the circumstantial evidence was found not of the said standard and quality, it would be highly unsafe to rely upon the same for conviction; rather, not to rely upon such evidence would a better and a safer course. Siraj v. Crown PLD 1956 FC 123; Nazir Hossain v. State 1969 SCMR 388; Sairan v. State PLD 1970 SC 56; Karamat Hussain v. State 1972 SCMR 15; Saeed Ahmad v. Muhammad Irfan PLD 1986 SC 690; Barkat All v. Karam Elahi 1992 SCMR 1047: Ibrahim v. State 2009 SCMR 407; Muhammad Hussain v. State 2011 SCMR 1127; Imran v. State 2015 SCMR 155 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 ref."

13. The case was investigated by Sahib Rehman, SI, Pw-8. Moreover, the alleged crime weapon was never recovered from the appellant's possession. The Investigating Officer admitted that no sketch or proper documentation of the recovery of the pistol and mobile phones was prepared. The failure to verify SIM ownership or examine recipients of calls and messages further weakens the evidentiary value of these items. He also admitted that as per recovery memo. no cut marks are shown on the blood-stained garments of deceased. He admitted that the pistol was not in the name of accused. Several investigative short comings and deficiencies were noticed in his statement, that is: Delay in sending recovered items to the FSL. Absence of statements from key witnesses who allegedly received calls or messages from the deceased. Lack of verification of mobile phone ownership. No independent witnesses to critical recoveries. Absence of a detailed site plan showing the exact location of recovered items. These shortcomings have cast serious doubts on the integrity and reliability of the prosecution's case.

14. Dr. Syed Umar, Medical Officer, Pw-9, conducted autopsy on the dead body of deceased Muhammad Farooq on 24.6.2021, at about 10:00 hours. Postmortem report, Ex.PM was prepared by him. The statement of this witness is critical in establishing the cause of death and the nature of the injuries. The medical officer testified that the dead body was in an advanced state of decomposition, with only a single stab wound on the neck. There was no evidence of firearm injuries, which contradicts the prosecution's claim that the murder weapon was a pistol. During cross-examination, he explained that no cut marks were found on the clothes of the deceased. He admitted that he had not observed any other wound except stab wound.

15. Moreover, the alleged crime weapon was never recovered from the appellant's possession. Besides, recovery of weapon has become immaterial in view of the deposition of Medical Officer, who clearly explained that except stab wound, no other wound was found on the dead body of deceased. The I.O admitted that no sketch or proper documentation of the recovery of the pistol and mobile phones was prepared.

16. In the case of Rehmatullah and 2 others (supra) it was also held that: "Insofar as the alleged recovery of mobile phone of the deceased from the possession of Muhammad Younas, appellant is concerned, we have noted that no proof of the ownership of above-mentioned mobile phone in the name of Muhammad Mustafa, deceased has been brought on record. The SIM numbers i.e. 0311-1842119 and 0313-2280082 of mobile phone of the deceased were mentioned in the FIR. The said SIMs of the deceased were not recovered from the possession of the appellants. Naseebullah, ASI (PW-3) who was recovery witness of mobile phone of the deceased from the possession of Muhammad Younas. appellant has candidly conceded during cross-examination that no SIM was present in the recovered mobile. phone. Although, it was the case of the prosecution witnesses namely Mansoor Ahmed, SI (PW-2) and Naseebullah, ASI (PW-3) that Muhammad Younas, appellant also got recovered motorcycle of the deceased from his house but the registration number of the said motorcycle of the deceased was not mentioned in the FIR. No documentary proof was produced in the prosecution evidence to show that the motorcycle allegedly recovered from the possession of Muhammad Younas (appellant) was owned by Muhammad Mustafa, deceased or the same was in the name of his any family member. Even. Muhammad Hassan, complainant who was brother of the deceased did not appear in the witness box to identify that the motorcycle allegedly recovered from the possession of Muhammad Younas, appellant was the same motorcycle, which belonged to Muhammad Mustafa, deceased. We are, therefore, of the view that the above-mentioned alleged recoveries of motorcycle and mobile phone of the deceased from the possession of Muhammad Younas, appellant are not helpful for the prosecution case," Burden of Proof:

17. It is a cardinal principle that the prosecution must prove the guilt of the accused beyond reasonable doubt. The burden never shifts to the accused to prove innocence. In cases resting on circumstantial evidence, the chain of circumstances must be complete and unbroken, and from the dead body of a victim the unbroken chain of events should link that chain to the accused. Any missing link entitles the accused to the benefit of doubt. The Supreme Court's ruling in Rehmatullah6 and other case reinforces that where the prosecution fails to establish its case conclusively, the accused must be acquitted as a matter of right. Conclusion:

18. For the above-mentioned reasons, we are of the firm opinion that the prosecution, under no circumstance, was able to establish guilt of the appellant beyond a reasonable doubt. The learned trial Court has failed to appreciate the prosecution evidence in its true perspective, thereby erred in convicting the appellant, which order cannot sustain. Order:

19. The instant criminal appeal is allowed, while reversing the impugned judgment dated 09.01.2024, which is set aside. The appellant, Wajid Khan is acquitted of all the charges levelled against him. He shall be released forthwith, if not required to be detained in connection with any other case.

20. Above are the reasons for our short order of even date. JK/161/P Appeal allowed. [1] Islam, M. (2021) Reflections on the law of evidence (3rd ed.). Kamrul Book House. [2] Ratanlal and Dhirajlal (2018). The law of evidence (25th ed.) Lexis Nexis. [3] Muhammad Younus v. The State (1996 PCr.LJ 109) [4] Rehmatullah and 2 others v. The State 2024 SCMR 1782. [5] Naveed Asghar and 2 others v. The State PLD 2021 SC 600) 6 Rehmat alias Rhaman alias Waryam alias Badshah v. The State PLD (1997 SC 515)