Mukhtiar Khan Versus State
This criminal appeal and connected Murder Reference arose from the judgment of the trial court convicting the appellant under Section 302(b) of the Pakistan Penal Code 1860 and sentencing him to death on two counts for murder. The High Court evaluated whether the prosecution proved its case beyond reasonable doubt against the appellant. The Court observed that independent injured eye-witnesses mentioned in the FIR were withheld, warranting an adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order 1984. Additionally, firearm injuries sustained by the accused party were suppressed in the FIR, co-accused with similar roles were acquitted on the same evidence, and the uninjured status of closely related eye-witnesses contradicted the alleged deep-seated enmity motive. Furthermore, weapon recovery yielded a negative forensic report, and an accused's statement under Section 342 Cr.P.C. must be accepted or rejected in toto without relieving the prosecution of its primary burden of proof. Consequently, the High Court allowed the appeal, set aside the conviction and sentences, acquitted the appellant, and declined to confirm the death sentence.
- Does the failure of the prosecution to produce material injured eye-witnesses warrant an adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order 1984?
- Whether the suppression of firearm injuries sustained by the accused party during the same incident casts serious doubt on the prosecution case?
- Can an accused person be convicted solely on admissions in their statement recorded under Section 342 of the Code of Criminal Procedure 1898 if the prosecution fails to independently prove its case beyond reasonable doubt?
- Does a negative forensic ballistic report render the recovery of an alleged weapon of offence inconsequential against the accused?
- Section 302, Pakistan Penal Code 1860
- Section 302(b), Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
- Article 129(g), Qanun-e-Shahadat Order 1984
Sadaqat Ali Khan, J .--- Mukhtiar Khan (appellant) along with Hamad Khan and Ubaidullah Khan (co-accused since acquitted) has been tried by the trial Court in case FIR No.147 dated 21.04.2023 offences under Sections 302/324/148/149 P.P.C, Police Station Kamar Mushani, District Mianwali and was convicted and sentenced vide judgment dated 22.12.2025 as under:-
Mukhtiar Khan (appellant)
Under section 302(b) P.P.C
Sentenced to DEATH on two counts for committing murder of Muhammad Ishtiaq and Ghulam Mustafa (deceased) with compensation of Rs.500,000/- (recoverable as arrears of land revenue) each payable to legal heirs of each deceased under section 544-A Cr.P.C, and in default whereof to further undergo simple imprisonment for six months each.
2. Appellant has filed this criminal appeal against his conviction and the trial Court has sent Murder Reference for confirmation of his death sentence or otherwise which are being decided through this single judgment.
3. Heard. Record perused.
4. Muhammad Ishtiaq and Ghulam Mustafa were done to death on the road on 21.04.2023 at 02.15 p.m, whereafter FIR was lodged on the same day at 04.15 p.m, on the statement of Malik Muhammad Aftab/ complainantPW14 (brother of Muhammad Ishtiaq deceased) who while claiming himself to be the eye-witness of the occurrence stated in his statement before the trial Court as under:-
"Stated that I am resident of Manda Khel and student. On 21.04.2023 at about 02:15 p.m., I along with my brother Muhammad Ishtiaq, Amanullah son of Amir Muhammad, my brother Muhammad Mushtaq son of Muhammad Iqbal, caste Kallu, and Ghulam Mustafa son of Faiz Muhammad, caste Sangwal, resident of Manda Khel, after offering Juma prayer at Jamia Masjid Usama Lari Adda Manda Khel, were returning towards our house. When we reached in front of our market at Adda Manda Khel, the accused persons namely Mukhtiar son of Noor Asmat, Hammad son of Moazzam, Saeed Khan (since deceased) son of Abdullah Khan, Ubaidullah son of Saeed Khan, Manzoor son of Rustam Khan, caste Pathan, armed with firearm weapons, suddenly emerged there.
At once, accused Muhammad Saeed raised a lalkara that they would avenge the previous enmity and teach us a lesson today. Immediately thereafter, accused Mukhtiar, with his firearm, fired four straight shots with the intention to kill upon my brother Muhammad Ishtiaq, which hit him on the front of his abdomen. After that, all the accused fired straight shots with their respective firearms upon my brother Ishtiaq and Ghulam Mustafa, which hit upon my brother Muhmmad Ishtiaq, Ghulam Mushtafa and passersby Aamir son of Ghulam Mustafa, Inamullah son of Noor Muhammad, and Ghulam Rasool son of Gul Muhammad on different parts of their bodies. My brother Muhammad Ishtiaq and Ghulam Mustafa, due to severe injuries, fell down on the spot. I along with Amanullah and Muhammad Mushtaq witnessed the entire occurrence with our own eyes. We immediately shifted the injured persons and my brother to RHC Kamar Mushani through a private vehicle. My brother Muhammad Ishtiaq succumbed to his injuries at RHC due to the firearm wounds.
The motive behind the occurrence is the previous enmity between us and the accused persons regarding FIR No.69/2011, 80/2011 and 126/2011 P.S. Kamar Mushani, on account of which they, after mutual consultation and active connivance, committed the occurrence. Thereafter, Rana Zahid Iqbal S.I. reached at RHC Kamar Mushani where he recorded my statement/Fard Bayan Exh-PQ which was read over to me and I put my signature as token of correctness of my statement. Injured Ghulam Mustafa was also succumbed to the above stated injuries afterwards. The injured passersby persons refused to give statement in this case due to fear of enmity. All a accused persons be punished accordingly.
5. Muhammad Mushtaq PW-15 (brother of Malik Muhammad Aftab, complainant and Muhammad Ishtiaq, deceased) being eye-witness while appearing before the trial Court has reiterated the same story.
6. It is a matter of record that Amir, Inam Ullah and Ghulam Rasool also sustained firearm injuries during the same occurrence whose names have been mentioned in the FIR but they being independent and material injured eye-witnesses have not been produced by the prosecution before the trial Court in support of its story, rather their evidence has been withheld by the prosecution with the reasons best known to it. So, presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order 1984 can fairly be drawn that had they been produced, they would have been deposed against the prosecution.
7. It is also matter of record that Saeed Khan, Manzoor Khan (accused since acquitted/mentioned in the FIR) and one Sabir also sustained firearm injuries during the same occurrence who have been got medically examined on the request of police but their injuries have been supressed in the FIR creating doubt in the prosecution story.
8. Co-accused with effective role of firing on the person of Ghulam Mustafa (deceased) has been acquitted by the learned trial Court vide impugned judgment by disbelieving the evidence of prosecution.
9. Another intriguing aspect of the matter is that motive of the occurrence is previous enmity between the parties. With this motive both the eye-witnesses (Malik Muhammad Aftab/complainant PW-3 and Muhammad Mushtaq PW-15) who are real brothers of Muhammad Ishtiaq (deceased) despite their claimed presence at the spot did not receive even a single scratch on their bodies during the occurrence, had they been present at the time of occurrence at the place of occurrence, they would have also been prime target of the accused, blessing them with unbelievable courtesy and mercy shown to them by the accused knowing well that they would depose against them by leaving them unhurt, is absolutely unbelievable story.
10. The argument of learned counsel for the complainant that appellant has admitted his presence at the time of occurrence at the place of occurrence in his defence plea which is sufficient proof of his guilt has no substance. Appellant has not admitted the occurrence narrated by the prosecution. The law is also settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. The law is equally settled that statement of an accused person recorded under section 342 Cr.P.C. is to be accepted or rejected in toto. In present case, prosecution has failed to prove its case against the appellant beyond shadow of doubt.
11. Motive of the occurrence was previous enmity between the parties which is double edged weapon in criminal cases as it can cut both ways.
12. Recovery of pistol on pointing out of the appellant in presence of negative report of PFSA is not only inconsequential rather draws adverse inference.
13. We are mindful that murder of two persons is a crime of heinous nature, Saeed Khan, Manzoor Khan (accused since acquitted/mentioned in the FIR) and one Sabir also sustained firearm injuries during the same occurrence which were suppressed by the complainant in the FIR discussed above. Injured eye-witnesses have not appeared in support of prosecution. Cases are to be decided on the basis of evidence and evidence alone and not on the basis of sentiments and emotions. Gruesome, heinous and brutal nature of the offence may be relevant at the stage of awarding suitable punishment for conviction but it is totally irrelevant at the stage of appraising or reappraising the evidence available on record to determine guilt of the accused persons as possibility of an innocent person having been wrongly involved in cases of such nature cannot be ruled out. An accused person is presumed to be innocent till the time he is proven guilty beyond reasonable doubt, and this presumption of his innocence continues until the prosecution succeeds in proving the charge against an accused beyond reasonable doubt on the basis of legally admissible, confidence inspiring, trustworthy and reliable evidence which is missing in the present case.
14. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
15. For the foregoing reasons, this criminal appeal of the appellant is allowed, his conviction and sentences awarded by the trial Court vide impugned judgment are hereby set-aside. Appellant (Mukhtiar Khan) is acquitted of the charges and directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of appellant (Mukhtiar Khan) is NOT CONFIRMED .
JK/M-71/L Appeal allowed.