IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT:  
Mr. Justice Manzoor Ahmad Malik 
Mr. Justice Syed Mansoor Ali Shah 
Mr. Justice Qazi Muhammad Amin Ahmed 
 
Criminal Appeal No.11-P/2017 & Jail Petition No.726/2017  
(On appeal from the judgment dated 19.04.2016 passed by the Peshawar 
High Court, Mingora Bench (Dar-ul-Qaza) Swat in Cr.As.178 & 216-M of 2014 
with MR 9-M & 10-M of 2014). 
 
Muhammad Azhar Hussain 
 (in Crl.A.11-P/2017) 
Al-Haj-ud-Din 
(in J.P.726/2017) 
            
            …Appellant(s)  
 
 
            …Petitioner(s) 
VERSUS 
The State & another 
 (in Crl.A.11-P/2017) 
The State  
(in J.P.726/2017) 
             
 
 
            …Respondent(s) 
 
 
For the Appellant(s) 
: Mr. Khalid Mehmood, ASC 
Mr. Zahoor Qureshi, AoR 
 
 
 
For the Petitioner 
: Through Jail 
 
 
 
For the State 
: Mr. Mujahid Ali Khan, 
Additional Advocate General, 
Khyber Pakhtunkhwa 
 
 
 
Date of Hearing 
: 02.05.2019 
 
ORDER 
  
 
Qazi Muhammad Amin Ahmed, J.- Muhammad 
Azhar Hussain, appellant in Criminal Appeal No.11-P of 2017, was 
tried along-side Al-Haj-ud-din, petitioner in J.P. No.726 of 2017 for 
committing qatl-e-amad of Fida-ur-Rehman; they were convicted 
under clause (b) of Section 302 of Pakistan Penal Code, 1860 and 
sentenced to death with direction to pay compensation in the sum 
of Rs.100,000/-each or to undergo six months S.I. in the event of 
default vide judgment dated 28.6.2014 upheld by the learned 
Peshawar High Court vide impugned judgment dated 19.4.2016; 
bound by a common thread these are being  decided through this 
single judgment. 
Criminal Appeal No.11-P/2017 & Jail Petition No.726/2017.  
 
 
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2. 
 
 Fida-ur-Rehman, deceased, aged 4/5, went missing; 
he was spotted lying dead in a maize field. According to autopsy 
report dated 24.8.2012, his neck was found slit with sharp edge 
weapon; medical officer observed certain marks of resistance as 
well as a rounded small piece of glass in his hand. As the 
investigation progressed, the accused named above were hauled up 
by the police; they were produced before a Judicial Magistrate on 
5.9.2012 when they, one by one, confessed the guilt; their 
confessional statements are prosecution’s mainstay. It is alleged 
that both the accused were jointly carrying on with one Mst. 
Khadija and on the fateful day they went to visit her while she was 
alone; as they were busy in foreplay, the deceased surprised them; 
he threatened disclosure, however the accused persuaded him for 
silence in lieu of Rs. 20/-. Later in the day they again came across 
the child, followed him and finally intercepted near a maize field; 
they subdued the child, constricted his neck with the string and 
afterward slit it with a knife. During the trial, Saleema Bibi alias 
Naseem Bibi, mother of Muhammad Azhar Hussain, appellant 
appeared as PW-22; according to her statement, she saw Al-Haj-
ud-din while taking a small child in his slap heading towards the 
maize field; accused inquired from the lady about her son who 
according to her was about to set out to a different location. 
Amongst the array of witnesses, the prosecution has primarily 
relied upon the confessional statements to drive on the charge.  
3.  
 
Learned counsel for the convicts contends that 
enormity of the crime notwithstanding, reliance on the confessional 
statements by the courts below was fraught with multiple errors, 
heavily impinging upon the principle of safe administration of 
criminal justice; according to him, the statements were inherently 
flawed; these were contradicted by prosecution’s own witness, 
Saleema Bibi, PW-22, a dichotomy that escaped notice of the 
courts below. The learned Law Officer has vehemently defended the 
impugned judgments by highlighting the gruesome nature of the 
crime. According to him, there was no earthly reason either for the 
devastated family or the police to swap the real offenders; every 
hypothesis of their innocence stood excluded, concluded the 
learned Law Officer. 
Criminal Appeal No.11-P/2017 & Jail Petition No.726/2017.  
 
 
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4.  
 
The fate of the prosecution’s case is hinged upon 
confessional statements, made by the convicts before a Magistrate 
and it is on the basis of their disclosures that they have been 
handed down the ultimate corporal penalty, irreversible in nature 
and thus warrants a most careful scrutiny. Though examined 
separately, nonetheless their arrival before the Magistrate on the 
same day, one after another on 5.9.2012 is quite intriguing; two 
individuals in an extreme crisis situation, conducting themselves 
in a comfortable unison, both being in tune with the prosecution, 
reasonably excludes hypothesis of a voluntary disclosure, free from 
the taints of inducement or persuasion; it appears to be more a 
negotiated settlement rather than a volitional representation; there 
is a remarkable similarity in both the statements, in terms of  
sequential order as well as the pattern these were reduced into 
writing, otherwise surprisingly exhaustive. A person making his 
breast clean is not expected to be that expressive. The statements 
contain prosecution’s encyclopedia with all the relevant details 
required to prosecute the case; it does not appear to be an exercise 
by a repentant to bring himself at peace with his conscious. 
Another predicament for the prosecution is conflict between  
testimony of Saleema Bibi, PW-22 with the confessions. Going by 
the later, both the convicts remained together right from 
intercepting the child to finally dumping him in the field whereas 
according to the former she saw Al-Haj-ud-Din alone while taking 
the child in his lap towards the field. This is also not in line with 
the disclosure that the accused first constricted his neck with the 
string before they jointly threw him in the field. These positions are 
irreconcilable; evidence of Saleema Bibi, PW-22 cannot be accepted 
without excluding confessional statements from consideration and 
vice versa. Similarly, in both the statements, the accused stated to 
have thrown weapon of offence, a churri in the river, however 
according to memo, exhibit PW-6/11, dated 4.9.2012 it was 
recovered with blood stains from inside the bushes a day before 
confessional statements were recorded; if Al-Haj-ud-Din had led to 
the recovery of weapon he had no occasion to omit this important 
investigative step in his exhaustive narrative and in case it is 
presumed as factually incorrect, would tremor the very basis of the 
Criminal Appeal No.11-P/2017 & Jail Petition No.726/2017.  
 
 
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confessions. We have also not felt comfortable with the printed 
form, purportedly used to administer warnings to the accused 
before recording of their statements. A confession may entail 
formidable consequences for an accused facing indictment and 
thus it is incumbent upon the Magistrate to ensure that the maker 
consciously comprehends the consequences of his choice and thus 
it is most important that the Magistrate himself, face to face, 
faithfully communicates to the accused all the relevant warnings, 
as contemplated by Section 364 of the Code of Criminal Procedure, 
1898, a surer way to establish that the confession is free from all 
taints, thus we would not approve convenience procuring 
accused’s  signature on a printed format. On an overall analysis of 
the prosecution case, confessional statements cannot be relied 
upon without potential risk of error. In the absence of evidentiary 
certainty, it would be unsafe to maintain the convictions on moral 
satisfaction that certainly cannot equate with legal proof. The 
convicts are entitled to the benefit of doubt. Criminal appeal 
No.11-P of 2017 is allowed and as a natural corollary Jail Petition 
No.726 of 2017 is converted into appeal and allowed. Impugned 
judgments are set aside. They shall be set at liberty forthwith, if 
not required in any other case. 
    
 
 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
Peshawar, the 
2nd of May, 2019 
Not approved for reporting 
Ghulam Raza/* 
JUDGE