IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
 
PRESENT: 
MR. JUSTICE ASIF SAEED KHAN KHOSA 
MR. JUSTICE DOST MUHAMMAD KHAN  
MR. JUSTICE MANZOOR AHMAD MALIK 
 
 
Criminal Appeals No.115 & 116 of 2013  
(On appeal from the judgment dated 30.1.2013 
passed by the Peshawar High Court, Abbottabad 
Bench, Abbottabad in Crl. Appeals No.99 & 
100/09) 
 
 
 
Hashim Qasim  
 
(in Crl.A.No.115/13) 
Khayam Khurshid   
(in Crl.A.No.116/13) 
 
 
 
 
 
 
 
 
… Appellant(s) 
VERSUS 
The State 
 
 
 
 
 
 
 
 
… Respondent(s) 
Criminal Petition No.161 of 2013 
(On appeal from the judgment dated 
30.1.2013 passed by the Peshawar High 
Court, Abbottabad Bench, Abbottabad in 
Crl.Rev.No.40/09) 
 
Jehangir Elahi 
 
 
 
 
 
 
 
 
… Petitioner(s) 
VERSUS 
Shoaib Ahmed and others 
 
 
 
 
 
 
 
 
… Respondent(s) 
 
For the appellant(s): 
Ch. Muhammad Shuaib, ASC 
 
 
 
 
(in Criminal Appeal No. 115/2013) 
 
 
 
 
 
Malik Abdul Haq, ASC 
 
 
 
 
(in Criminal Appeal No. 116/2013) 
 
 
 
 
 
Mr. Mushtaq Ali Tahirkheli, ASC 
 
 
 
 
(in Criminal Petition No. 161/2013) 
On Court Call /  
For Federation: 
 
Syed Nayyab Hussain Gardezi, A.A.G 
 
For the State: 
 
Mian Arshad Jan, Addl. A.G. KPK 
 
Date of hearing: 
 
12.4.2017 
Crl.A 115-116/13  
Crl.P.161/13 
2 
JUDGMENT 
 
 
Dost Muhammad Khan, J.—  
 
Brief Facts:- At a trial, held by learned Additional Sessions 
Judge-IV, Abbottabad, (i) appellant Hashim Qasim (ii) appellant 
Khayam Khurshid and (iii) Shoaib Ahmed (non appealing accused) 
were found guilty and were convicted & sentenced as follows:- 
(a)  
Appellant Hashim Qasim (in Crl.A. 115/13): 
(i) 
U/s. 302 PPC: Death sentence and also to pay 
compensation of Rs.1,00,000/- to the legal heirs of the 
deceased, or in default thereof, to suffer further simple 
imprisonment for six months.  
(ii) 
U/s. 377 PPC: Life imprisonment and to pay fine of 
Rs.20,000/-, or in default of payment thereof, to 
further undergo S.I. for three months.  
(iii) 
U/s. 367 PPC:  10 years R.I. and fine of Rs.10,000/- 
or in default of payment of fine to undergo two months 
S.I. 
(b) 
Appellant Khayam Khurshid (in Crl.A.116/13) 
(c) 
Shoaib Ahmed (non-appealing accused) 
(Tried under Juvenile Justice System Ordinance): 
(i) 
U/s. 302/34 (b) PPC: Life imprisonment and also to 
pay compensation of Rs.1,00,000/- to the legal heirs 
of the deceased, or in default of payment thereof, to 
further undergo S.I. for six months. 
(ii) 
U/s. 367-A/34 PPC:  10 years R.I. and fine of 
Rs.10,000/- or in default thereof to further undergo 
S.I. for two months. 
(iii) 
U/s. 377 PPC:  Life Imprisonment and also to pay fine 
of Rs.20,000/- or in default of payment of fine, to 
further undergo S.I. for three months.  
Benefit of S.382-B Cr.P.C. was, however, extended to all the 
accused. 
Crl.A 115-116/13  
Crl.P.161/13 
3 
2. 
  
Appellant Hashim Qasim, filed Criminal Appeal 
No.99/09 before the Peshawar High Court, Abbottabad Bench, 
against his conviction and sentence of death and the above 
sentences of imprisonment, while the Trial Court sent Murder 
Reference to the High Court for confirmation of his death sentence. 
Similarly, Shoaib Ahmed (non-appealing accused) and Khayam 
Khurshid filed separate Appeal No.100/09, against their conviction 
and sentences. Both the appeals came up for hearing before the 
High Court, Bench at Abbottabad and the learned Judges 
dismissed both the appeals, while in the case of appellant Hashim 
Qasim, Murder Reference was answered in the affirmative.  
3. 
  
Against the judgment of the Peshawar High Court, 
Abbottabad Bench dated 30.1.2013, appellant Hashim Qasim, the 
condemned prisoner, has filed Crl. Appeal No.115/13, while 
Criminal Appeal No.116/13 has been filed by Khayam Khurshid 
(juvenile), with the leave of the Court dated 31.5.2013. Similarly, 
on Criminal Petition No.161/13, filed by Jehangir 
Elahi, 
complainant, 
seeking 
enhancement 
of 
sentence 
of 
life 
imprisonment, awarded to Shoaib Ahmed (non appealing accused) 
and appellant Khayam Khurshid, notices were issued to the 
Attorney General for Pakistan and the Advocate General of KPK 
because interpretation of the provisions of Juvenile Justice System 
Ordinance is involved.  
  
Arguments heard, impugned judgment gone through and the 
evidence on record was perused with due care and caution with 
the assistance of the learned counsel for the parties.  
4. 
  
The epitome of the occurrence is that, on 26.02.2007 
at 11:30 am, Haider Elahi, a child of 8 years, after seeking 
permission of his father, the complainant Jehangir, in his house to 
play outside, went away but when he did not turn up, the 
complainant got worried and started search for his minor son. In 
the said course, he contacted each and every relative and friend 
and also informed the Emergency Response Police on phone No. 
15, however, when no clue about the child was found from 
Crl.A 115-116/13  
Crl.P.161/13 
4 
anywhere, the complainant (PW-17) lodged a report with Police 
Station, City Abbottabad on 28.2.2007 at 14:00 hrs., expressing 
suspicion that probably, the missing child was kidnapped, 
however, no one was charged in the FIR, nor any suspicion about 
anyone, much less the appellants was expressed.  
5. 
  
During the course of investigation, the investigating 
officer, namely, Sardar Muhammad Haroon, S.I. (PW-18) arrested 
three suspects on 3.3.2007, however, after interrogation they were 
released. He stated at the trial that, the said three suspects 
disclosed during their interrogation that, complainant had beaten 
appellants Khayam, Hashim Qasim and one Zubair, due to 
plucking of fruits from his domestic orchard thus, he went in 
search of them but they were found missing from their homes. He 
arrested accused Shoaib while playing cricket in “Thanda Maira” 
on 5.3.2007 however, before that on 1.3.2007, he was informed by 
the Emergency Rescue Police-15 that a dead body of a child had 
been discovered inside the overhead water tank of government 
Primary School, “Thanda Maira”, thus he reached the site and 
secured the dead body of the child through Memo (Ex.PW-4/1); 
prepared its inquest report and injury sheet and dispatched the 
same to the mortuary of Ayub Medical Complex. He also found two 
packets of “Coco Supari” in the water tank, which too were secured 
through Memo (Ex.PW-4/3). He prepared the sketch of the crime 
spot (Ex.PB); collected water from the water tank in four small 
bottles and sent to the Medical Officer, recovery memo to that 
effect was prepared as Ex.PW-4/2; and also added penal sections 
302/377/201/34 PPC in the FIR, already registered vide Crime 
No.119/2007.  
 
He further deposed that the complainant party availed 
services of the private Sniffer Dog Center at Sargodha; sniffer dogs 
were brought to the spot and one of the dogs, after sniffing the 
crime spot, went to the house of one Khurshid and sat on a “cot”, 
while the rest of the dogs did not enter in the house. The son of 
Khurshid, namely, Khayam Khurshid, appellant, was thus arrested 
Crl.A 115-116/13  
Crl.P.161/13 
5 
and also Shoaib (non-appealing accused). The custody of all the 
three accused, was obtained from the “Ilaqa Magistrate” and on the 
expiry of the police custody, they were produced before the 
Magistrate where, Khayam appellant made a confession (Ex.PW-
15/2). He also recorded the statement of one Adeel u/s 161 Cr.P.C. 
on 4.3.2007 and his statement was also got recorded through 
Magistrate on 5.3.2007 u/s 164 Cr.P.C., who has furnished 
evidence of the deceased, last seen with Shoaib and two unknown 
accused. The autopsy report and reports of the Chemical Examiner 
were also placed on record. 
6. 
  
According to the evidence, the dead body of the 
deceased was found by a student of the school, who in turn 
informed the “Chowkidar” who then informed a teacher and the 
teacher rang 15 Police, who informed the above Investigating 
Officer. At the belated stage, after the arrest of the accused, motive 
was set up by the complainant against the appellants and accused 
Shoaib Ahmed. 
7. 
  
At the trial, the prosecution has relied, mainly on the 
following pieces of evidence: 
“(i) 
Retracted confession of accused, Khayam 
Khurshid (juvenile); 
(ii) 
The last seen evidence, given by Adeel (PW-8); 
(iii) 
Motive for crime; 
(iv) 
The medical evidence, furnished by Dr. Syed 
Farooq Shah (PW-13) and; 
(v) 
The pointing of place of crime by the accused 
where, 
the 
deceased 
was 
subjected 
to 
unnatural intercourse and then strangulated to 
death.” 
 
Analysis/discussion: 
8. 
  
Keeping in view the above, the case of the prosecution 
appears to have been based entirely on circumstantial evidence. 
Placing reliance on circumstantial evidence, in cases involving 
capital punishment, the superior Courts since long have laid down 
Crl.A 115-116/13  
Crl.P.161/13 
6 
stringent principles for accepting the same. It has been the 
consistent view that such evidence must be of the nature, where, 
all circumstances must be so inter-linked, making out a single 
chain, an unbroken one, where one end of the same touches the 
dead body and the other the neck of the accused. Any missing link 
in the chain would destroy the whole and would render the same 
unreliable for recording a conviction on a capital charge. Reference 
is made to the cases of Muhammad Aslam v. The State (PLD 
1992 SC 254) and Ch. Barkat Ali v. Major Karam Elahi Zia 
(1992 SCMR 1047). 
9. 
  
In cases of circumstantial evidence, there are chances 
of procuring and fabricating evidence, therefore, Courts are 
required to take extra care and caution to narrowly examine such 
evidence with pure judicial approach to satisfy itself, about its 
intrinsic worth and reliability, also ensuring that no dishonesty 
was committed during the course of collecting such evidence by 
the Investigators. If there are apparent indications of designs on 
part of the investigating agency in the preparation of a case resting 
on circumstantial evidence, the court must be on its guard against 
the trap of being deliberately misled into a false inference. If the 
court fails to observe such care and caution and hastily relies on 
such evidence, there would be a failure of justice.  Reference may 
be made to the case of Fazal Elahi v. Crown (PLD 1953 FC 214) 
and of Lejzor v. The Queen (PLD 1952 PC 109), it was held 
therein with considerable emphasis that circumstantial evidence 
may sometimes appears to be conclusive but it must always be 
narrowly examined, if only because this count of evidence may be 
fabricated in order to cast suspicion on another, therefore, it is all 
the more necessary before drawing inference, if the accused’s guilt 
from circumstantial evidence to be sure and that there are no other 
co-existing circumstances, which weaken or destroy the inference 
then, in that case alone it may be relied upon otherwise, not at all. 
10. 
 
Keeping in view the broader principles, so laid down, 
we have now to deal with the evidence of the prosecution, adduced 
Crl.A 115-116/13  
Crl.P.161/13 
7 
at the trial and the manner, it was collected by the investigating 
agency. 
11. 
  
The confession of appellant, Khayam Khurshid, 
recorded on 9.3.2007 by the Magistrate, namely, Shah Waliullah 
(PW-15) is the most suspicious piece of evidence in the whole case, 
besides having been retracted one. It might be right, as was argued 
by the learned counsel for the complainant, that retracted 
confession, if corroborated by independent evidence of reliable 
nature, can be made basis for conviction on a capital charge but it 
must be subject to the above cardinal principles. 
12. 
 
It is trite law that for accepting a confession, two 
essential requirements must be fulfilled i.e. that the confession 
was made voluntarily, it was based on true account of facts, 
leading to the crime and the same was proved at the trial. The 
superior courts have also given strict guidelines for the Magistrate, 
recording confession, to be followed without any exception which 
need not be repeated herein, because long line of authorities on 
this point is already in the field. 
13. 
 
In the instant case, we are confronted with confession 
consisting of almost six full scape sentences. The accused, Khayam 
Khurshid was treated as Juvenile by the prosecution itself being of 
the age of sixteen years or less at the relevant time; he remained in 
the custody of the police for many days, however, the recording 
Magistrate did not provide him sufficient time for reflection to 
recompose. Being a Juvenile (minor), it was appropriate and 
desirable that he should have been provided counseling / 
consultation facility of natural guardian or any close blood relative 
of mature age, having no clash of interest with him in the case in 
hand but no such care and caution was observed by the 
Magistrate.  
 
We have found that the name of Shoaib accused was added 
subsequently and we have satisfied ourselves in this regard by 
consulting the original record. This glaring manipulation has 
Crl.A 115-116/13  
Crl.P.161/13 
8 
knocked at the bottom of the confession, and same is denuded of 
its legal worth. 
14. 
 
The confession is contradicted by established facts on 
record and instead of providing any corroboration, the same is 
clashing with the rest of evidence. In this regard the pointation 
memo (Ex-PW/5) is at page-39 of the paper book would show that 
the said accused pointed out the house of the complainant where 
he had entered the courtyard and took away the deceased, Haider 
Ali, deceitfully on the pretext to play cricket outside and providing 
him plums. The deceased accordingly accompanied him there and 
then. To the contrary, the complainant stated that on the fateful 
day at 11:30 am his deceased son got his permission to go outside 
for playing. There is no mention of the presence of the said 
accused nor the deceased had disclosed to the father that with 
whom he was going to play outside. In the very beginning of the 
confession, the accused had stated that a conspiracy was hatched 
by all of them to kill the deceased to take revenge from his father, 
however, after such a disclosure, the prosecution did not add the 
penal provision of section 120-B PPC which was squarely 
attracted, the result would be that the prosecution itself was not 
relying on that portion of the confession because date and place, 
where such conspiracy was hatched, is still a mystery. The next 
point equally important is that, during the earlier beating, given to 
him by the father of the deceased, his hand was fractured but the 
Investigating Officer did not take a single step to get it confirmed 
from the concerned Doctor, also obtaining the opinion of the 
Crl.A 115-116/13  
Crl.P.161/13 
9 
Radiologist taking X-Ray of his fractured hand. The confession is 
conspicuously silent about the meeting of Adeel (PW-8), who 
exchanged welcome words with co-accused Shoaib when the 
deceased was in their company. Keeping in view the above conflict 
with the other pieces of evidence, brought on record, the retracted 
confession of the accused has lost its evidentiary value and legal 
efficacy thus, it would be absolutely unsafe to rely on it and that 
too for recording punishment on a capital charge. 
 
Another important aspect, which escaped the notice of the 
two courts below, is that, the Magistrate in his certificate has 
mentioned that the accused gave statement in “Hindko Dialect” 
which the Magistrate translated into Urdu. The Magistrate has 
nowhere stated in the certificate or at the trial that he was fully 
acquainted with or could understand “Hindko language” and that 
the confession was translated word by word from ‘Hindko to Urdu’. 
15. 
 
The 
appellant 
Khayam 
Khurshid 
was 
arrested, 
probably when ‘sniffer dog’ entered into his father house twice and 
sat on a “Cot”. No provision of Qanun-e-Shahdat Order, 1984 
endorse with approval this process and procedure, nor such 
evidence has been made expressly or impliedly admissible, the 
begging question thus, would be that how one dog, out of many 
entered the house while remaining stood outside, could be made 
the basis of forming an opinion about the involvement of Khayam 
accused in the case. What was the level of training imparted to the 
dogs, no pointation memo was prepared by the investigating officer 
about the said proceedings are such aspects, looking askance but 
Crl.A 115-116/13  
Crl.P.161/13 
10 
the prosecution has no satisfactory answer to give. The dogs were 
arranged privately by one Major Jehangir through phone call made 
to the Commander of the Dog Centre, Sargodha, showing himself 
to be the father of the deceased, as is evident from the statement of 
Azhar Mehmood (PW-16) who brought the dogs to the spot and 
conducted the whole exercise. He confessed that he was illiterate 
person and the report placed on record was prepared by the 
Commander Dog Centre and was sent to the police. 
16. 
  
So far as, the last seen evidence is concerned, the 
same is cryptic, infirm in nature and substance, which deserves 
outright rejection. It was by sheer chance that Adeel (PW-8) came 
across Shoaib accused in the midway when, he was accompanied 
by two unknown persons and the deceased Haider Elahi. No 
identification parade was arranged to get identify the said two 
unknown persons through the PW. The said PW is absolutely a 
chance witness, he also stayed tight lips even when he came to 
know about the missing of the child, how he was discovered by the 
police and when he met the police, is a question mark. The 
recording of his statement u/s 164 Cr.P.C. on 5.3.2007 is a 
testimony to the fact that probably he was a paid and procured 
witness and because the complainant and the investigator, both 
were apprehensive that he might not resile, thus, his statement on 
oath was recorded. What was the distance of the place where this 
PW met with Shoaib accused from the house of the complainant 
and the place of crime, is also an unexplained circumstance, more 
Crl.A 115-116/13  
Crl.P.161/13 
11 
so, when the actual time of death of the deceased is still not 
known. Thus, this evidence is of no help to the prosecution.  
17. 
  
The motive was set up after the arrest of the accused, 
is another question enough to disturb judicial mind. If the motive 
was really in existence then, in the FIR or at least at a subsequent 
stage before the discovery of the dead body and arrest of the 
accused, the complainant (PW-17) might have disclosed it, being 
very important factor because on that basis, the investigator would 
have taken step to interrogate all the three accused before their 
actual arrest particularly when the complainant being a practicing 
lawyer was supposed to know its importance. To the contrary, the 
IO, Sardar Muhammad Haroon, SI (PW-18), has squarely stated in 
unequivocal words that during the course of investigation on 
3.3.2007 he had arrested (i) Khurram (ii) Faisal and (iii) Yasir, 
being suspects in the crime, however, after thorough interrogation 
they were released. He further added that those suspects disclosed 
the motive with accusing finger towards the present three accused 
because they were given thrashing/beatings by the father of the 
deceased due to plucking of fruits from his domestic orchard thus, 
the motive was revealed for the first time by the persons who 
themselves were suspects in the crime and then it was put into the 
mouth of the complainant. Thus, the motive belatedly set up, is 
nothing but a cosmetic baseline, which appears to be self 
manufactured with the connivance of the police. The defence has 
consistently taken the plea that the deceased was son of a lawyer, 
all the Bar Associations of the area thus, put a weight behind him 
Crl.A 115-116/13  
Crl.P.161/13 
12 
and even the accused could not arrange a counsel for their 
defence. In any case, the motive remained unestablished. 
18. 
  
The next is the medical evidence, not only relied upon 
by the prosecution but readily accepted and acted upon by the 
learned Courts below. True, that the deceased child was done to 
death by strangulating him after he was subjected to sodomy, 
however, to establish the individual participation of each one of the 
accused, in the crime, it was all the more necessary that samples 
of semen of the accused should have been sent to chemical 
examiner with swabs for cross matching. Only one swab in the 
parcel was found to be stained with the human semen, while the 
rest were not so. No sample of semen was obtained from the three 
accused for cross-matching. On this point, the case law has settled 
the standard of proof, however, quick reference may be made to 
the cases of Mst. Ehsan Begum v. The State (PLD 1983 FSC 
204), Ghulam Abbas  v. SHO Polcie Station City Chiniot Jhang 
(1996 P Cr. LJ 1661) and Waqar-ul-Islam v. State (PLJ 1998 
FSC 13). The medical evidence is only confirmatory or of 
supporting nature and is never held to be corroboratory evidence, 
to identify the culprit(s). 
19. 
  
The next question is the pointing out of the crime 
place by the accused. It was impossible for them to have had 
access to the school, which was surrounded by boundary walls, 
having a gate, and was under the watch and guard of “chowkidar” 
and was closed during the days of occurrence due to winter 
vacations. If the accused could have an access to it then, it was 
Crl.A 115-116/13  
Crl.P.161/13 
13 
open to general public as well. The crime spot was already in the 
knowledge of the police and when in consequence of the alleged 
disclosure, no fresh discovery was made from the crime spot then, 
this piece of evidence is of no legal worth to be relied upon.  
20. 
  
Even a single doubt, if found reasonable, would entitle 
the accused person to acquittal and not a combination of several 
doubts is bedrock principle of justice. Reference may be made to 
the case of Riaz Masih @ Mithoo v. The State (NLR 1995 Crl. 
694).  
Conclusion/decision: 
 21. 
  
Judged from all angles and considered from all aspects 
after fair reappraisal of evidence, we are of the firm and considered 
view that the prosecution has miserably failed to establish its case 
against the accused. Accordingly, both the appeals of both the 
appellants namely, Hashim Qasim and Khayam Khurshid, are 
allowed and they are acquitted of all the charges leveled against 
them. 
22. 
  
So far as the case of non-appealing accused, Shoaib 
Ahmed is concerned, as we have already mentioned that notice for 
enhancement of sentence was given to him in Crl.P. 161/13, and 
when his case too is not distinguishable on any factual and legal 
premises from the appellants, therefore, he is also entitled to and 
deserves the same treatment. Reference may be made to the cases 
of Haji Syed Rafi Ahmed v. Additional Sessions Judge, 
Rawalpindi and others (PLD 1992 SC 251) and Muhabbat Ali 
Crl.A 115-116/13  
Crl.P.161/13 
14 
v. 
The 
State 
(1985 
SCMR 
662). 
Accordingly, 
he 
(Shoaib Ahmed) too is extended the benefit of doubt and is 
acquitted of all the charges leveled against him. All the accused, 
including Shoaib Ahmed (non appealing accused) be set free 
forthwith, if not required in any other case. 
23. 
  
In view of the above, Criminal Petition No.161/13 has 
become infructuous and because the same was not supported by 
the Advocate General, who has also filed concise statement and the 
learned Additional Attorney General on behalf of the Attorney 
General for Pakistan, which is accordingly dismissed. 
 
Judge 
 
Judge 
 
Judge 
Islamabad, the  
12th April, 2017  
Nisar/* 
 
 
 
 
Approved For Reporting. 
