2018 P Cr. L J 570
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer- ud-Din Kakar, JJ
GHULAM SHABBIR and 2 others ---Appellants
Versus
The STATE---Respondent
Criminal Appeals Nos. 317 of 2012 and 8 of 2013, decided on 17th July, 2017. (a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---Ocular account, proof of ---Prosecution case was that three accused persons had
murdered brother of complainant by firing ---Ocular account was furnished by the witnesses,
described to witness the incident ---Complainant was not an eye -witness of the occurrence---
Eye-witness of the case was later on booked in the case as one of the accused, he faced the trial
and was convicted ---Other eye -witne ss supported the prosecution case, mentioned the details
of the incident, but identified only one accused, however he was unable to assign any specific
role to the said accused in commission of the offence ---Statement of said witness to the extent
of ident ification of the accused was not corroborated by prosecution witnesses, who were
shown to be present near the place of incident and had seen the culprits ---Accused persons
were not nominated in the FIR as at the relevant time, none of the prosecution witne sses
recognized any of the culprits ---Test of identification was to be made, on the arrest of the
accused persons, which was not done ---Circumstances established that prosecution had failed
to prove the ocular account of the case beyond shadow of doubt, be nefit of which would resolve
in favour of accused persons ---Accused persons were acquitted in circumstances by setting
aside conviction and sentence recorded by the Trial Court.
[Case- law referred]
(b) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---Medical evidence---Scope---Medical evidence was only supporting evidence, which
might confirm the ocular evidence with regard to the receipt of injury, nature of the injury, kind
of we apon used in the occurrence, but not to identify the assailants.
[Case- law referred]
(c) Qanun -e-Shahadat (10 of 1984) ---
----Art. 40---Disclosure of accused ---Evidentiary value ---Disclosure, while in custody of
police, was of less value under the provis ion of Qanun -e-Shahadat, 1984--- If nothing in
consequence of the disclosure was recovered or discovered then the information so received by itself would not be admissible.
[Case- law referred]
(d) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention ---Appreciation of evidence ---Recovery of
weapon of offence---Scope---Prosecution case was that the accused and his co -accused persons
were armed with fire arms ---Kalashnikov along with five rounds were recovered from the
residential room of accused ---T.T. pistol along with four rounds were recovered from the
possession of co- accused ---T.T. pistol along with one round from the possession of other co-
accused were recovered ---Record showed that ocular account and the disclosures of accused
recorded while in custody were not believed, accused persons, in circumstances, could not be
convicted merely on the basis of said recoveries, which were only corroborative piece of evidence ---Alleged recoveries were inconsequential.
[Case- law referred]
(e) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Recovery ---
Benefit of doubt ---Prosecution case was that unknown persons on motorcycle arrived at the
site and committed murder of the deceased ---Witn ess/police official stated that someone came
and handed over the motorcycle to him ---Particulars of said person and connection of said
person with the motorcycle were not mentioned in the statement of said official witness ---
Person who handed over the motorcycle was not produced as witness before the Trial Court ---
Investigating Officer had stated that the motorcycle was recovered from a shop, but neither he
disclosed the name of the shop or that of the shopkeeper ---Both the witnesses contradicted each
other regarding recovery of the motorcycle, which created doubt in its veracity ---Said evidence
was unable to establish the nexus between the accused persons and the motorcycle and its use in the commission of offence ---No reliance could be made on the recovery of the motorcycle.
(f) Penal Code (XLV of 1860) ---
----Ss. 302 & 34----Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---Delay in dispatching crime empties and weapons to the Laboratory ---Effect ---Record
showed that two crime e mpties and five led were recovered on 14.7.2010, the day of incident -
--One Kalashnikov and two pistols were recovered from the accused persons on 13.8.2010---Said recoveries were not sent to the Fire Arms Examination Unit for analysis and remained in the p olice custody till 20.9.2010---No explanation was offered for not dispatching the crime
weapons to the Examination Unit on their recovery but with delay ---Prosecution did not tender
any explanation about their safe custody during the said period---Report about pistols only showed that those were in working condition, but were not matched with the crime empties ---
Sending of crime empties and the weapons of offence together after delay cast doubt and diminished legal value of the report.
[Case- law referred]
(g) Criminal trial ---
----Benefit of doubt ----Principles ---If there was a single circumstance, which created doubt
regarding the prosecution case, the same would be sufficient to give benefit of doubt to the accused.
[Case- law referred]
Syed Ayaz Zahoor for Appellants (in Criminal Appeal No. 317 of 2012).
Najam -ud-Din Mengal for Appellants (in Criminal Appeal No.8 of 2013).
Mrs. Noor Jehan Kaboor, Additional Prosecutor -General for the State.
Dates of hearing: 8th and 31st May, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---Through this common judgment, we intend to
dispose of Criminal Appeals Nos.317 of 2012 and 8 of 2013 filed by the appellants convicts (Ghulam Shabbir, Ejaz Ali and Munir Ahmed), outcome of the judgment dated 13.12.2012 (the impugned judgment), passed by the Sessions Judge, Quetta (the trial Court), whereby they
(appellants) were convicted and sentenced in the terms:
Therefore, the accused persons Ejaz Ali son of Abdul Qadir, Munir Ahmed son of Muhammad Ishaq and Ghulam Shabbir son of Shah Mir are convicted under section
302(b), Qisas and Diyat Ordinance, (P.P.C.) read with section 34, P.P.C. as Tazir and sentenced/awarded RI for life each accused with amount of Rs.300,000/ - (Rupees three
lacs) each accused as compensation to the legal heirs of deceased i.e. Habib Jalib as
provided under section 544- A, Cr.P.C. In default, they have to further undergo SI for a
period of two (02) years each. Benefit of section 382- B, Cr.P.C. was also extended in
favour of accused persons.
2. Precisely stated facts of the case, as per FIR No.151/2010 dated 14.7.2010, under
sections 302, 34, P.P.C. registered at Satellite Town Police Station, Quetta, on the report of Malik Khuda Bakhsh were that he (complainant) was at his home, when received information through phone that his younger brother Habib Jalib was injured due to firing while he (victim)
was in his shop situated adjacent to his house. Upon such information, he reached at Civil Hospital and found the dead body of his brother. On query it was informed that at about 7:45
a.m. when Habib Jalib was reading Newspaper at the shop, three unknown persons riding on
Yamaha motorcycle arrived at the site, one of them remain seated, while the remaining two
duly armed made firing with kalashnikov and pistol, thus, seriously injured Habib Jalib, who
fell down and they (culprits), by making aerial firing, escaped from the place of occurrence. Ejaz Ali son of Abdul Qadir and Amir Hamza son of Rehmatullah were described to be the persons who witnessed the incident.
3. After registration of the FIR, investigation was entrusted to SI Ahmed Nawaz Khan
(PW-9), who produced the FIR Ex -P/9-A, went to Civil Hospital where Ejaz Hussain Haideri,
SI/SHO prepared Inquest Report Ex -P/9-B, inspected the place of occurrence and prepa red the
site plan Ex -P/9-C. He (PW -9) also took into possession blood stained earth, two empties of
kalashnikov and five led from the place of incident, also recorded statement of the witnesses, and obtained Death Certificate from the Civil Hospital, Quetta. Thereafter, the investigation was handed over to Ghulam Fareed IP, who proceeded further with the case.
4. Though the case was registered against unknown persons, but during investigation the
appellants and Mst. Rehana were booked in the case. Except Ms t. Rehana, the three were
arrested and faced trial. On the stated allegations, Charge was framed on 4.2.2011 and read-
over to the appellants (convicts) to which they pleaded not guilty and claimed trial. During trial, the prosecution examined the following witnesses, eleven (11) in numbers.
PW-1 Malik Khuda Bakhsh (complainant) deposed that the incident took place on
14.7.2010 and on the same day at about 7:45 a.m. he received a telephonic call that someone murdered his brother Habib Jalib. On receiving suc h information, he reached
to the house of Habib Jalib where he came to know that Habib Jalib had been taken to Hospital and when he reached hospital, Habib Jalib had been martyred. There he came
to know that three persons came on motorcycle and two of them made firing at Habib
Jalib, who sustained bullet injuries and died. The culprits, while making firing, fled away from the scene of occurrence. He stated about presence of his nephew Hamza at the place of occurrence, with assertion that the culprits also f ired on him.
PW-2 Amir Hamza , the named eye -witness deposed that on 14.7.2010 at about 7:45
a.m., when he was opening his shop, saw a young man, standing in front of his shop on cycle from whom he asked the reason, and it was his reply that he was waiting for some visitor. Thereafter, his uncle Habib Jalib came to his shop and also asked about that young man. He told him that the young man is waiting for his friend. His uncle Habib Jalib asked him for newspaper, meanwhile, that young man took out his mobile and
started talking, and then proceeded on his cycle towards Railway Track at western side. The witness further deposed that after 8 to 10 minutes, three persons came on motorcycle, two of them came towards shop, one was armed with kalashnikov, whereas the other was armed with pistol, they made 7/8 fires upon his uncle, who fell down and
thereafter, the culprits by making firing made their escape good. PW -2 identified
accused Munir Ahmed.
PW-3 Mir Hamza , deposed that on 14.7.2010 at about 8/9 a.m. he was m aking bread
at his Tandoor, heard fire shots and when came out, saw two muffled persons making firing at Rehmatullah Provision Store, one of them was armed with Kalashinkov while the other was armed with pistol. He further deposed that both the persons sea ted on
motorcycle with third person and went towards east.
PW-4 Khan Muhammad deposed that on 14.7.2010 at about 7:45 a.m. he heard fire
shots, whereupon he came out and saw that firing was being made at the shop of brother
of the deceased Habib Jalib by t wo persons. One was armed with Kalashnikov and the
other was with pistol, both were with muffled faces. Their third companion was standing with motorcycle at a some distance at Chowk. He further deposed that the said persons also fired at him and his brother and then fled away towards eastern side.
PW-5 Dr. Abdul Rasheed Jamali, Medico Legal Officer (MLO) Sandeman
(Provincial Hospital) examined the dead body of the deceased and found the following injuries on his person:
i. Gunshot entrance wound about 1/2 x 1/2 cm, 2cm above the left nipple of chest.
ii. Gunshot entrance wound 1/2 x 1/2 cm, left clavicular region.
iii. Gunshot entrance wound 1/2 x 1/2 cm, 3 cm medially left nipple of chest.
iv. Gunshot entrance wound 1/2 x 1/2 cm, epigastric region.
v. Guns hot slippery wound about 6/x3 cm on chin.
vi. Gunshot entrance wound 1/2 x 1/2 cm, 3 cm above the right nipple of chest.
vii. Two gunshot entrance wound 1/2 x 1/2 left hypochondrium.
viii. Gunshot entrance wound 1/2 x 1/2 cm, mid, lateral aspect of left upper arm.
ix. Gunshot entrance wound 1/2 x 1/2 cm right flank.
x. Gunshot exit wound 2x1 cm, mid, medial aspect of left upper arm.
xi. Three gunshot exit wound, 2x1, l x l, l x 1 cm on lower part right side back of
the abdomen.
xii. Two gunshot exit wound l x l, l x l, cm on left lumber region.
Probable cause of death: is severe injuries to vital organs of chest and abdominal
cavities, internal and external hemorrhage, shock and death due to gunshot.
He issued MLC Ex -P/5-A.
PW-6 Ghulam Shabbir IP was witness of the seizure memos Ex -P/6-A and Ex -P/6-
B, whereby a register of Shalimar Hotel and Restaurant and one Yamaha motorcycle were taken into custody. He was also the witness of the recovery of Kalashnikov along with five live cartridges from the residential room of the appellant Munir Ahmed and witness of the recovery of one pistol TT along with four rounds Ex -P/6-D from the
possession of accused Ejaz Ahmed. He signed all the four documents as attesting
witness, which were prepared on 8.8.2010 and 13. 8.2010, respectively.
PW-7 Faiz Ahmed SI signed seizure memos, prepared site inspection memo, collected
blood stained mud, two empties from the place of incident, Ex -P/7-B and Ex -P/7-C. He
was also witness to the disclosure memos of appellant Munir Ahmed a nd Ejaz Ali Ex -
P/7-D and Ex -P 7-E and witness to the recovery memo of TT pistol Ex -P/7-F recovered
from the possession of appellant Ghulam Shabbir.
PW-8 Zafar Iqbal SI, a witness of the recovery memo of two CDs and one Memory
Card of Mobile SIM produced as Ex-P/8-A.
PW-9 Ahmed Nawaz Khan SI, the first Investigating Officer, produced FIR as Ex -
P/9-A, Inquest report as Ex -P/9-B and site plan as Ex -P/9-C.
PW-10 Ghulam Fareed IP, the second Investigating Officer, took into possession
register from Shalimar Hote l, conducted raid at the house of Munir Ahmed, recovered
Kalashnikov and five rounds, and also recovered one TT pistol from the possession of
accused Ejaz Ali, prepared disclosure memos of the appellants Munir Ahmed and Ejaz Ali, taken into possession motorcycle, arrested appellant Ghulam Shabbir and recovered one TT pistol .30 bore from his possession, recorded statement of the witnesses, sent blood stained articles, arms and ammunition to Forensic Science Laboratory (FSL) and, thereafter, he handed over t he case file to SHO Malik Nisar
Ahmed, who prepared incomplete challan and produced as Ex -P/10- A.
PW-11 Nasir Sattar SI, produced the report of FSL regarding blood stained sarticles
as Ex -P/11- A and Fire -arms Examination Report as Ex P/11 -B and incomplete challan
as Ex -P/11- C.
5. On completion of the prosecution's evidence, the appellants (accused) were got
examined by the trial Court, as required by section 342, Cr.P.C. During course, while replying to the questions, the appellants not only denied the comm ission of the offence, but also denied
their involvement in the instant case. They also recorded their statements on oath and produced witnesses in defence. The accused Ghulam Shabbir produced DW -1 Ghulam Raza and DW -3
Hameedullah Dasti, PDSP. The accused persons Ejaz Ali and Munir Ahmed, produced DW -2
Waqar Ahmed, Senior Clerk of this Court and DW -4 Manzoor Ahmed.
In his statement on oath, appellant Ejaz Ali deposed that he had worked with the
deceased as Munshi. On 14.7.2010, at about 7:00 a.m. Habib Jali b was reading
newspaper at the shop and he was present with him. He further deposed that, he told the deceased that they should leave for the Court, and for that purpose he went to house to bring the vehicle, meanwhile heard fire shots, thus, ran towards t he street, and saw a
person making firing with Kalashnikov towards the shop. Two persons armed with pistols and they seated on Yamaha motorcycle, thereafter they fled away towards eastern side. When he reached at the shop, found Habib Jalib in injured condition. The
witnesses Amir Hamza son of Rehmatullah and Khan Muhammad after firing reached
at the spot. They took the injured to Civil Hospital. Thereafter, he and Amir Hamza got prepared the sketch of accused vide memo Ex -D/1 and also appeared before the J udicial
Tribunal, High Court of Balochistan as eye -witness and recorded his statement. On
4.8.2010 at about 9:30 p.m. the police officials took him to CIA center for identification parade, but there he was handcuffed. He further deposed that when he was pr oduced
before the Judicial Magistrate for recording his statement, he showed the marks of violence, whereupon the Judicial Magistrate called Ghulam Fareed and directed to shift him to judicial custody, but he was again took to CIA center by the police. From 14.7.2010 till 4.8.2010 he remained present at the house of deceased and the police never raided at his house nor recovered anything from him. Appellant Munir Ahmed is his cousin, who is resident of Goth Baho Khosa, Jacobabad and has also a house near to his house. The wife of deceased namely Rehana is like his sister and mother, against
whom a false allegation has been leveled.
Appellant Munir Ahmed, deposed that he was resident of Goth Baho Khosa, District
Jacobabad and runs a cloth shop there, whereas his brother Manzoor Ahmed also used to sit with him in the shop. On 6.8.2010, his brother was arrested by the local police and taken to police station. When he and his uncle went to the office of DPO Jacobabad, the police arrested him, and released his brother, where after, he was tortured.
Appellant Ghulam Shabbir deposed that on 10.8.2010, he and his brother Ghulam
Raza were sitting in their Kariana shop at their village. Mirpur police came and on the pretext of information, they were taken to Mirpur Poli ce Station. After a while they
were shifted to Shikarpur from where they were handed over to Quetta police. After sometime his brother was released, but on false allegations he was involved in the
murder case and put him on trial. He denied recovery of pis tol or ammunition from him
and also having any concern with commission of the offence.
DW-1 Ghulam Raza (brother of appellant Ghulam Shabir) deposed that on 10.8.2010,
he along with Ghulam Shabbir and other relatives was present at his shop, at Goth. When the police of Mirpur Mathelo, arrested them, taken them to Shikarpur and handed
over to Quetta police. They were kept in custody for 23 days, and he was released on personal surety, but his brother remained in custody. He deposed that no arm was recovered from his brother, who was falsely implicated in the instant case.
DW-2 Waqar Ahmed (Senior Clerk, District and Sessions Court, Quetta) produced a
number of papers, marked as Ex -D/2 to Ex -D/8, prepared during the course of
investigation.
DW-3 Hameedullah Dasti PDSP, deposed that on 9.9.2010, he gave his legal opinion
in case FIR No.177/2010, offence under section 13(d), Arms Ordinance, 1965 and produced the same as Ex -D/3.
DW-4 Manzoor Ahmed, deposed that on 6.8.2010, at about 10:00 O'clock local police
arrested him and his brother Munir Ahmed, at Jacobabad, but later on he was released while his brother was falsely implicated in the instant case.
6. On conclusion of the trial and hearing the arguments, the trial Court found the
appellants guilty of the offence, thus, sentenced them in the terms as reproduced in the preceding paras.
7. The learned counsel for the appellants (convicts) contended that the name of the
appellants did not transpire in the FIR; that it was a case of circumstantial evidence, which is always considered as a weak type of evidence and is not admissible as per Article 38 of the Qanun- e-Shahadat Order, 1984; that the circumstantial evidence produced by the prosecution
is not worthy of reliance due to the improvements and contradictions; that the requirement of section 103, Cr.P.C. was not complied with at the time of recovery of the weapons used in commission of the offence. The learned counsel further contended that the cri me empties were
taken into custody from the site on the day of incident, but the same were not sent for chemical examination on the day, rather remained in custody of the Investigating Officer till recovery of the crime weapon. Further the empties, and the crime weapons were sent together for chemical
analysis, this state of affairs create doubt, therefore, cannot be relied upon: that during the trial the prosecution has miserably failed to bring on record the evidence which specifically involve the appellants in commission of the offence, hence, in the circumstances, the convictions are highly unwarranted and liable to be set aside. In support of their contentions, they relied upon 2009 SCMR 230 + 2010 SCMR 1009 + 2011 MLD 811 + 2012 SCMR 428 + 2015 PCr.LJ 459 Sindh + 2016 YLR 905 Peshawar and 2016 PCr.LJ 206 FSC.
8. Conversely, the learned Additional Prosecutor General (APG) opposed the appeal, and
stated that the trial Court after taking into consideration the material available on the record,
has rightly convicted and sentenced the appellants, which do not call for interference by this Court. She relied on the disclosures made by the appellants resulted in recovery of the crime weapons and the report of the Fire Arms Expert in the positive terms, fully cor roborated the
case of the prosecution, supported the decision of the trial Court.
9. We have heard the learned counsel for the parties at length and have gone through the
record. The prosecution case is based on the following pieces of evidence.
i. Ocular evidence produced by PWs -2, 3 and 4.
ii. Medical Evidence
iii. Disclosure by the appellants Munir Ahmed and Ejaz Ali (Ex -P/7-D and Ex -P/7-
E).
iv. Recoveries of the crime weapons i.e. Kalashnikov, pistols, and the empties from
the place of incident, and the motorcycle used in the act.
v. Positive report of the Firearms' Expert.
(i) Ocular Evidence.
10. The complainant was not an eye -witness of the occurrence, rather as contained in FIR,
Ejaz Ali son of Abdul Qadir and Amir Hamza son of Rematullah were the persons who described to witness the incident. As far, Ejaz Ali son of Abdul Qadir was concerned, he was later on booked in the case as one of the accused, thus faced the trial and was convicted. The careful analysis of statement of Amir Hamza (PW -2) would reveal that he supported the
prosecution case, mentioned the details of unfortunate incident, but identified only the appellant Munir Ahmed, however unable to assign any specific role to him (Munir Ahmed) in commission of the act. Though, he (PW -2) was nephew of the deceased, but was not proved to
be an interested witness. His statement to the extent of identification of the appellant Munir Ahmed was not corroborated by PW -3 Mir Hamza son of Khan Muhammad, and PW -4 Khan
Muhammad son of Haji Sultan, who were shown to be present near the place of incident and
also saw the culprits. These witnesses though supported the prosecution version as they mentioned the details of the incident, but were unable to identify the culprits. They (PW -3 and
PW-4) were with the statements that the persons, who made firing upon the shop where the
deceased was present, were with muffled faces and it was the reason they were unable to identify them.
11. In the present case, the appellants were not nominated in the FIR, meaning there by that
at relevant time none of the prosecution witnesses recognized any of the culprits. Thus on arrest of the appellants, test of identification was to be made, but it was not done. Identification parades were not held, nor any efforts were made to identify the appellants by the eye -witness
Amir Hamza (PW -2). Rather for the very first time, he (PW -2) identified Munir Ahmed (one
of the appellants) before the trial Court, without specification of the role on his part. This identification was of less value, thus, need further corroboration by some positive evidence,
but missing in the instant case. It was held by the Hon'ble Supreme Court in case Farman Ali
v. The State reported in 1997 SCMR 971 that:
"Holding of identification test becomes necessary in case s; when names of the culprits
are not given in the FIR. Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits."
The Hon'ble Supreme Court further held in case Asghar Ali v. The State, rep orted in
1992 SCMR 2088 that;
"the identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving the identity of the culprit."
In view of the principle determined, the mere identification of the appellant Munir
Ahmed before the Court by the PW -2 that too without any specific role unable to meet the
requirement, thus, no reliance could be placed on it.
12. (ii) Medical Evidence.
The evidentiary value of the medical evidence furnished by the prosecution is to be
assessed on basis of the law as settled that the medical evidence is a type of supporting
evidence, which may confirm the ocular account with regard to receipt of injury, n ature of the
injury, kind of weapon used in the occurrence, but not able to identify the assailants. Reference
in this context may be made to the cases Muhammad Tasweer v. Hafiz Zulqarnain and 2 others (PLD 2009 SC 53) + Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103) and
Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410). Thus the medical evidence on the record only proved unnatural death of the victim due to the injuries sustained through firearms and none else.
13. (iii) Disclosure by appellants Munir Ahmed and Ejaz Ali
In addition to the statement of PW -2, the other important piece of evidence was the
disclosures made by the appellants Munir Ahmed and Ejaz Ali on 13.08.2010. PW -7 SI Faiz
Ahmed the marginal witness of th e memos of disclosure produced and marked as Ex. P/7- D
and Ex -P/7-E. It is a settled principle of law that the disclosure, while in custody of Police, is
of less value under the provisions of Qanun - e-Shahadat Order, 1984. Article 40 of the Order
is with a n exception and determine the evidentiary value of a disclosure on part of an accused
while in custody. It reads as under:
"Article 40. How much of information received from accused may be proved .---
When any fact is deposed to as discovered in consequence of information received, from a person accused of any offence, in the custody of a police -officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
But if nothing in consequence of the disclosure is recovered or discovered then the
information so received by itself would not be admissible. In this regard, the reference can be made to the following judgments/case laws:
Confessional statement of accused b efore police which leads to discovery of no new
fact or circumstance on pointation of accused would have no evidentiary value and such confessional statement before police cannot be used against accused. 'The State and others v. Asmatullah and others' {PLD 2007 Quetta 12}.
Appreciation of evidence.---Extra -judicial confession. Principle. Extra -judicial
confession is a very weak type of evidence and no conviction on it can be awarded without its strong corroboration on the record. Wazir Muhammad and others v. The State {2005 SCMR 277(a)}.
In the case in hand, on 13th August 2010, the appellants Munir Ahmed and Ejaz Ali
were arrested and Kalashnikov and pistol were recovered respectively on pointation and possession. The disclosures were made later in time on the same date. It was evident that the
recovery of crime weapons were not in consequence of the disclosures, rather it was effected earlier in time, thus, there was no discovery of fact on basis of the information given, thus, of no legal effect nor could be relied upon.
14. Furthermore, perusal of the record reveals that on 17.8.2010 (Ex D/3 and Ex -D/4), at
the request of Investigation Officer, the Sessions Judge, Quetta authorized Judicial Magistrate -
II, Quetta for recording statement of accused Ejaz Ali under section 164, Cr.P.C. Ex -D/7 shows
that on the same day, the Judicial Magistrate -II, called Ejaz Ali for recording his statement
under section 164, Cr.P.C. and found that the accused was under fear and pressure, who told him that electric shocks were given to him. The Magistrate also observed marks of torture on
his body, thus, the Investigating Officer was directed to shift the accused to judicial custody. This fact further negate the making of disclosure voluntary on part of Ejaz Ali.
15. (iv) Recov ery of crime weapons
The prosecution further placed reliance on the recovery of Kalashnikov along with five
rounds from the residential room of appellant Munir Ahmed, which were taken into possession vide seizure memo Ex -P/6-C, recovery of T.T pistol along with four rounds from the possession
of appellant Ejaz Ali vide seizure memo Ex -P/6-D and recovery of T.T pistol along with one
round from the possession of appellant Ghulam Shabbir vide seizure memo Ex -P/7-F. There is
no need to discuss the said evidenc e because we have already disbelieved the ocular evidence
and the disclosures recorded while in custody, therefore, the appellants cannot be convicted merely on the basis of the above mentioned recoveries, which are only corroborative pieces of evidence. R eference in this regard may be made to the case Muhammad Afzal alias Abdullah
and others v. The State and others {2009 SCMR 436}, wherein the Hon'ble Supreme Court held as under:
"After taking out from consideration the ocular evidence, the evidence of ide ntification
and the medical evidence, we are left with the evidence of recoveries only, which being
purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because i t is well- settled that
unless direct substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be."
Similarly in the case Abdul Mateen v. Sahib Khan and others (PLD 2006 Supreme
Court 538), at page 543, the following dictum was laid down.
'It is a settled law that, even if recovery is believed, it is only corroborative. When there is no evidence on record to be relied upon, then there is nothing which can be corroborated by the r ecovery as law laid down by this Court in Saifullah's case 1985
SCMR 410.'
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases
Muhammad Yaqub v. The State (1971 SCMR 756) and Nek Muhammad and another v. The State (PLD 1995 Supreme Court 516).
16. So far recovery of motorcycle Yamaha 100 CC was concerned, perusal of the statement
of PW -6 IP Ghulam Shabbir shows that on 13.8.2010, he along with ASI Fakhr Alam and IP
Ghulam Farid was present in CIA staff office, meanwhile a person She r Muhammad came, and
handed over a motorcycle to the Investigating Officer, which was taken into possession vide seizure memo Ex -P/6-B. PW -6 in his statement remained unable to disclose the particulars of
Sher Muhammad and his connection with the motorcycl e. Even said Sher Muhammad was not
produced as witness before the trial Court. On the contrary, PW -10 IP Ghulam Fareed, the
Investigating Officer, was with the statement that on the basis of disclosure and pointation of the appellant Munir Ahmed, the motor cycle was recovered from a shop situated at Abdul Sattar
Road, Quetta, but neither he disclosed the name of the shop or of the shopkeeper, from where the recovery was effected. Both the witnesses contradicted each other regarding recovery of the motorcycle , which creates serious doubt in its veracity. In addition this piece of evidence
unable to establish the nexus between the accused and the recovered motorcycle, and its use in commission of the offence. Therefore, no reliance can be made on the recovery of the motorcycle.
17. The Investigating Officer also took into possession extract of register of Shalimar Hotel
and Restaurant (seizure memo prepared and produced before the court as Ex -P/6.A) to
corroborate the acts on part of the appellants Munir Ahmed a nd Ghulam Shabbir, but failed. It
was for the reason that the document was also not proved as required. The owner or the manager of the Hotel was not produced as witness, nor any effort was made to identify the appellants as the persons who in fact resided in the hotel on the relevant dates.
18. (v) Positive report of Fire Arms Expert.
The prosecution also placed reliance on the Examination Report of the Fire Arms
Expert placed on record as Ex -P/11- B. The record reveals that the two crime empties and five
led were recovered on 14.7.2010, the day of incident, but were not sent to the Fire Arms Examination Unit, Karachi (FAEUK) for analysis, rather remained in the police custody till 20.9.2010. If it be presumed that the said crime empties were in fact availa ble at the spot, and
had been rightly recovered by the Investigating Officer were in safe custody. The empties remained in the police station for more than eight weeks as received on 20.9.2010 for examination in the Laboratory along with a kalashnikov and two pistols, which had allegedly been recovered at the instance of the appellants on 13.8.2010. Even no explanation had been offered for not dispatching the crime weapons to the FAEUK on their recovery, which were sent with a delay of more than one month. The prosecution did not come forward to tender any explanation for the delay in dispatching the crime shells, kalashnikov and pistols for the Expert's opinion and about their safe custody during the period. This fact seriously undermine the evidentiary val ue of the recovered weapons as well as of the empties. Sending of crime
empties and the weapons of offence together after a long delay cast a serious doubt and diminish legal value of the report though in positive terms. Reliance in the behalf is placed on
the cases Muhammad Shafi and another v. The State {PLD 1968 Lahore 869}, Mustaqeem v. Nawab Khan {2016 YLR 905}, Iqbal Zada v. The State through Additional Advocate General and 3 others {2014 PCr.LJ 1397}, Samandar alias Qurban v. The State {2017 MLD 539}, Mehmood Ahmed v. The State {2012 YLR 2314} and Ali Shair and others v. The State {2008 SCMR 707). As far the pistols were concerned, the report only stated them to be in working condition, but no match with crime empties. It was to be noted as per seizur e memo Ex -P/7-C
no shell of bullets fired from pistols were recovered from the site, nor taken into custody. Similarly, positive Serologist Report qua blood stained articles as well as Death Certificate of
the deceased only prove the unnatural death of the deceased with firearm on the particular
place, but by whom, it never tells the names of the culprit(s).
19. We have considered all the aspects of this case and have come to this irresistible
conclusion that the prosecution failed to prove its case against the appellants beyond shadow
of doubt. The evidence on record unable to connect the appellants with commission of the
offence. It is by now well settled law that if there is a single circumstance, which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances, which have created serious doubt about the prosecution story. In Tariq Pervez v. The State (1995 SCMR 1345), the Hon'ble Supreme Co urt of Pakistan, at page 1347, was pleased to observe as under: -
"5.......The concept of benefit of doubt to an accused person is deep- rooted in our
country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creat ing doubts. If there is a circumstance which creates reasonable
doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
The Hon'ble Supreme Court of Pakistan, while reiterating the same principle in the case
Muhammad Akram v. The State (2009 SCMR 230), at page 236, observed as under:
"13 .............It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed
by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances
creating do ubts. If there is circumstance which created reasonable doubt in a prudent
mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
20. In the light of above discussion, we are of the view that the prosecution has failed to
prove its case against the appellants beyond the shadow of doubt, therefore, we accept the Criminal Appeals Nos. 317 of 2012 and 8 of 2013 filed by the appellants Ghulam Shabbir, Eja z
Ali and Munir Ahmed, set aside the conviction and sentence recorded by the Sessions Judge, Quetta vide judgment dated 13.12.2012 and acquit them of the charges by extending them benefit of doubt, in case FIR No.151/2010, Satellite Town Police Station, Quetta. They are in custody, be released forthwith if not required in any other case.
JK/117/Bal. Appeal accepted.
2018 P Cr. L J 570
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer- ud-Din Kakar, JJ
GHULAM SHABBIR and 2 others ---Appellants
Versus
The STATE---Respondent
Criminal Appeals Nos. 317 of 2012 and 8 of 2013, decided on 17th July, 2017. (a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---Ocular account, proof of ---Prosecution case was that three accused persons had
murdered brother of complainant by firing ---Ocular account was furnished by the witnesses,
described to witness the incident ---Complainant was not an eye -witness of the occurrence ---
Eye-witness of the case was later on booked in the case as one of the accused, he faced the trial
and was convicted ---Other eye -witness supported the prosecution case, mentioned the details
of the incident, but identified only one accused, however he w as unable to assign any specific
role to the said accused in commission of the offence ---Statement of said witness to the extent
of identification of the accused was not corroborated by prosecution witnesses, who were
shown to be present near the place of incident and had seen the culprits ---Accused persons
were not nominated in the FIR as at the relevant time, none of the prosecution witnesses
recognized any of the culprits ---Test of identification was to be made, on the arrest of the
accused persons, whic h was not done ---Circumstances established that prosecution had failed
to prove the ocular account of the case beyond shadow of doubt, benefit of which would resolve in favour of accused persons ---Accused persons were acquitted in circumstances by setting
aside conviction and sentence recorded by the Trial Court.
[Case- law referred]
(b) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---Medical evidence---Scope---Medical evidence was only supporting evidence, which
might confirm the ocular evidence with regard to the receipt of injury, nature of the injury, kind
of weapon used in the occurrence, but not to identify the assailants.
[Case- law referred]
(c) Qanun -e-Shahadat (10 of 1984) ---
----Art. 40---Disclosure of accused ---Evidentiary value ---Disclosure, while in custody of
police, was of less value under the provision of Qanun -e-Shahadat, 1984--- If nothing in
consequence of the disclosure was recovered or discovered then the inform ation so received
by itself would not be admissible.
[Case- law referred]
(d) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention ---Appreciation of evidence ---Recovery of
weapon of offence---Scope---Prosecution case was that the ac cused and his co- accused persons
were armed with fire arms ---Kalashnikov along with five rounds were recovered from the
residential room of accused ---T.T. pistol along with four rounds were recovered from the
possession of co- accused ---T.T. pistol along wi th one round from the possession of other co-
accused were recovered ---Record showed that ocular account and the disclosures of accused
recorded while in custody were not believed, accused persons, in circumstances, could not be convicted merely on the basi s of said recoveries, which were only corroborative piece of
evidence ---Alleged recoveries were inconsequential.
[Case- law referred]
(e) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Recovery ---
Benefit of doubt ---Prosecution case was that unknown persons on motorcycle arrived at the
site and committed murder of the deceased ---Witness/police official stated that someone came
and handed over the motorcycle to him ---Particulars of said person and connection of said
person with the motorcycle were not mentioned in the statement of said official witness ---
Person who handed over the motorcycle was not produced as witness before the Trial Court ---
Investigating Officer had stated that the motorcycle was re covered from a shop, but neither he
disclosed the name of the shop or that of the shopkeeper ---Both the witnesses contradicted each
other regarding recovery of the motorcycle, which created doubt in its veracity ---Said evidence
was unable to establish the nexus between the accused persons and the motorcycle and its use
in the commission of offence ---No reliance could be made on the recovery of the motorcycle.
(f) Penal Code (XLV of 1860) ---
----Ss. 302 & 34----Qatl -i-amd, common intention---Appreciation of evidence--- Benefit of
doubt ---Delay in dispatching crime empties and weapons to the Laboratory ---Effect ---Record
showed that two crime empties and five led were recovered on 14.7.2010, the day of incident -
--One Kalashnikov and two pistols were recovered f rom the accused persons on 13.8.2010---
Said recoveries were not sent to the Fire Arms Examination Unit for analysis and remained in the police custody till 20.9.2010---No explanation was offered for not dispatching the crime weapons to the Examination Unit on their recovery but with delay ---Prosecution did not tender
any explanation about their safe custody during the said period---Report about pistols only showed that those were in working condition, but were not matched with the crime empties ---
Sending of crime empties and the weapons of offence together after delay cast doubt and diminished legal value of the report.
[Case- law referred]
(g) Criminal trial ---
----Benefit of doubt ----Principles ---If there was a single circumstance, which created doubt
regarding the prosecution case, the same would be sufficient to give benefit of doubt to the
accused.
[Case- law referred]
Syed Ayaz Zahoor for Appellants (in Criminal Appeal No. 317 of 2012).
Najam -ud-Din Mengal for Appellants (in Criminal Appeal No.8 of 2013).
Mrs. Noor Jehan Kaboor, Additional Prosecutor -General for the State.
Dates of hearing: 8th and 31st May, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---Through this common judgment, we intend to
dispose of Criminal Appeals Nos.317 of 2012 and 8 of 2013 filed by the appellants convicts (Ghulam Shabbir, Ejaz Ali and Munir Ahmed), outcome of the judgment dated 13.12.2012 (the impugned judgment), passed by the Sessions Judge, Quetta (the trial Court), whereby they (appellants) were convicted and sentenced in the terms:
Therefore, the accused persons Ejaz Ali son of Abdul Qadir, Munir Ahmed son of Muhammad Ishaq and Ghulam Shabbir son of Shah Mir are convicted under section 302(b), Qisas and Diyat Ordinance, (P.P.C.) read with section 34, P.P.C. as Tazir a nd
sentenced/awarded RI for life each accused with amount of Rs.300,000/ - (Rupees three
lacs) each accused as compensation to the legal heirs of deceased i.e. Habib Jalib as provided under section 544- A, Cr.P.C. In default, they have to further undergo SI for a
period of two (02) years each. Benefit of section 382- B, Cr.P.C. was also extended in
favour of accused persons.
2. Precisely stated facts of the case, as per FIR No.151/2010 dated 14.7.2010, under
sections 302, 34, P.P.C. registered at Satellite Tow n Police Station, Quetta, on the report of
Malik Khuda Bakhsh were that he (complainant) was at his home, when received information through phone that his younger brother Habib Jalib was injured due to firing while he (victim) was in his shop situated adja cent to his house. Upon such information, he reached at Civil
Hospital and found the dead body of his brother. On query it was informed that at about 7:45 a.m. when Habib Jalib was reading Newspaper at the shop, three unknown persons riding on
Yamaha motor cycle arrived at the site, one of them remain seated, while the remaining two
duly armed made firing with kalashnikov and pistol, thus, seriously injured Habib Jalib, who
fell down and they (culprits), by making aerial firing, escaped from the place of occ urrence.
Ejaz Ali son of Abdul Qadir and Amir Hamza son of Rehmatullah were described to be the persons who witnessed the incident.
3. After registration of the FIR, investigation was entrusted to SI Ahmed Nawaz Khan
(PW-9), who produced the FIR Ex -P/9-A, went to Civil Hospital where Ejaz Hussain Haideri,
SI/SHO prepared Inquest Report Ex -P/9-B, inspected the place of occurrence and prepared the
site plan Ex -P/9-C. He (PW -9) also took into possession blood stained earth, two empties of
kalashnikov and five led from the place of incident, also recorded statement of the witnesses, and obtained Death Certificate from the Civil Hospital, Quetta. Thereafter, the investigation was handed over to Ghulam Fareed IP, who proceeded further with the case.
4. Though the case was registered against unknown persons, but during investigation the
appellants and Mst. Rehana were booked in the case. Except Mst. Rehana, the three were
arrested and faced trial. On the stated allegations, Charge was framed on 4.2.2011 and read-over to the appellants (convicts) to which they pleaded not guilty and claimed trial. During
trial, the prosecution examined the following witnesses, eleven (11) in numbers.
PW-1 Malik Khuda Bakhsh (complainant) deposed that the incident took place on
14.7.2010 and on the same day at about 7:45 a.m. he received a telephonic call that someone murdered his brother Habib Jalib. On receiving such information, he reached to the house of Habib Jalib where he came to know that Habib Jalib had been taken to Hospital a nd when he reached hospital, Habib Jalib had been martyred. There he came
to know that three persons came on motorcycle and two of them made firing at Habib Jalib, who sustained bullet injuries and died. The culprits, while making firing, fled away from th e scene of occurrence. He stated about presence of his nephew Hamza at
the place of occurrence, with assertion that the culprits also fired on him.
PW-2 Amir Hamza , the named eye -witness deposed that on 14.7.2010 at about 7:45
a.m., when he was opening his shop, saw a young man, standing in front of his shop on
cycle from whom he asked the reason, and it was his reply that he was waiting for some visitor. Thereafter, his uncle Habib Jalib came to his shop and also asked about that young man. He told him tha t the young man is waiting for his friend. His uncle Habib
Jalib asked him for newspaper, meanwhile, that young man took out his mobile and started talking, and then proceeded on his cycle towards Railway Track at western side. The witness further deposed that after 8 to 10 minutes, three persons came on motorcycle, two of them came towards shop, one was armed with kalashnikov, whereas the other was armed with pistol, they made 7/8 fires upon his uncle, who fell down and thereafter, the culprits by making f iring made their escape good. PW -2 identified
accused Munir Ahmed.
PW-3 Mir Hamza , deposed that on 14.7.2010 at about 8/9 a.m. he was making bread
at his Tandoor, heard fire shots and when came out, saw two muffled persons making firing at Rehmatullah Prov ision Store, one of them was armed with Kalashinkov while
the other was armed with pistol. He further deposed that both the persons seated on motorcycle with third person and went towards east.
PW-4 Khan Muhammad deposed that on 14.7.2010 at about 7:45 a.m . he heard fire
shots, whereupon he came out and saw that firing was being made at the shop of brother
of the deceased Habib Jalib by two persons. One was armed with Kalashnikov and the other was with pistol, both were with muffled faces. Their third compa nion was
standing with motorcycle at a some distance at Chowk. He further deposed that the said persons also fired at him and his brother and then fled away towards eastern side.
PW-5 Dr. Abdul Rasheed Jamali, Medico Legal Officer (MLO) Sandeman
(Provincia l Hospital) examined the dead body of the deceased and found the following
injuries on his person:
i. Gunshot entrance wound about 1/2 x 1/2 cm, 2cm above the left nipple of chest.
ii. Gunshot entrance wound 1/2 x 1/2 cm, left clavicular region.
iii. Gunshot entrance wound 1/2 x 1/2 cm, 3 cm medially left nipple of chest.
iv. Gunshot entrance wound 1/2 x 1/2 cm, epigastric region.
v. Gunshot slippery wound about 6/x3 cm on chin.
vi. Gunshot entrance wound 1/2 x 1/2 cm, 3 cm above the right nipple of chest.
vii. Two gunshot entrance wound 1/2 x 1/2 left hypochondrium.
viii. Gunshot entrance wound 1/2 x 1/2 cm, mid, lateral aspect of left upper arm.
ix. Gunshot entrance wound 1/2 x 1/2 cm right flank.
x. Gunshot exit wound 2x1 cm, mid, medial aspect of left upper arm.
xi. Three gunshot exit wound, 2x1, l x l, l x 1 cm on lower part right side back of
the abdomen.
xii. Two gunshot exit wound l x l, l x l, cm on left lumber region.
Probable cause of death: is severe injuries to vital organs of chest and abdominal
cavities, internal and external hemorrhage, shock and death due to gunshot.
He issued MLC Ex -P/5-A.
PW-6 Ghulam Shabbir IP was witness of the seizure memos Ex -P/6-A and Ex -P/6-
B, whereby a register of Shalimar Hotel and Restaurant and one Yamaha m otorcycle
were taken into custody. He was also the witness of the recovery of Kalashnikov along with five live cartridges from the residential room of the appellant Munir Ahmed and witness of the recovery of one pistol TT along with four rounds Ex -P/6-D from the
possession of accused Ejaz Ahmed. He signed all the four documents as attesting
witness, which were prepared on 8.8.2010 and 13.8.2010, respectively.
PW-7 Faiz Ahmed SI signed seizure memos, prepared site inspection memo, collected
blood stained mud, two empties from the place of incident, Ex -P/7-B and Ex -P/7-C. He
was also witness to the disclosure memos of appellant Munir Ahmed and Ejaz Ali Ex -
P/7-D and Ex -P 7-E and witness to the recovery memo of TT pistol Ex -P/7-F recovered
from the possession of appellant Ghulam Shabbir.
PW-8 Zafar Iqbal SI, a witness of the recovery memo of two CDs and one Memory
Card of Mobile SIM produced as Ex -P/8-A.
PW-9 Ahmed Nawaz Khan SI, the first Investigating Officer, produced FIR as Ex -
P/9-A, Inquest report as Ex -P/9-B and site plan as Ex -P/9-C.
PW-10 Ghulam Fareed IP, the second Investigating Officer, took into possession
register from Shalimar Hotel, conducted raid at the house of Munir Ahmed, recovered Kalashnikov and five rounds, and also recovered one TT pistol from the possession of accused Ejaz Ali, prepared disclosure memos of the appellants Munir Ahmed and Ejaz Ali, taken into possession motorcycle, arrested appellant Ghulam Shabbir and recovered one TT pistol .30 bore from his possession, recorded statement of the witnesses, sent blood stained articles, arms and ammunition to Forensic Science Laboratory (FSL) and, thereafter, he handed over the case file to SHO Malik Nisar Ahmed, who prepared incomplete challan and produced as Ex -P/10- A.
PW-11 Nasir Sattar SI, produced the report of FSL regarding blood stained s articles
as Ex -P/11- A and Fire -arms Examination Report as Ex P/11 -B and incomplete challan
as Ex -P/11- C.
5. On completion of the prosecution's evidence, the appellants (accused) were got
examined by the trial Court, as required by section 342, Cr.P.C. Duri ng course, while replying
to the questions, the appellants not only denied the commission of the offence, but also denied their involvement in the instant case. They also recorded their statements on oath and produced witnesses in defence. The accused Ghul am Shabbir produced DW -1 Ghulam Raza and DW -3
Hameedullah Dasti, PDSP. The accused persons Ejaz Ali and Munir Ahmed, produced DW -2
Waqar Ahmed, Senior Clerk of this Court and DW -4 Manzoor Ahmed.
In his statement on oath, appellant Ejaz Ali deposed that he had worked with the
deceased as Munshi. On 14.7.2010, at about 7:00 a.m. Habib Jalib was reading newspaper at the shop and he was present with him. He further deposed that, he told the deceased that they should leave for the Court, and for that purpose he went to house to bring the vehicle, meanwhile heard fire shots, thus, ran towards the street, and saw a person making firing with Kalashnikov towards the shop. Two persons armed with pistols and they seated on Yamaha motorcycle, thereafter they fled away t owards
eastern side. When he reached at the shop, found Habib Jalib in injured condition. The
witnesses Amir Hamza son of Rehmatullah and Khan Muhammad after firing reached
at the spot. They took the injured to Civil Hospital. Thereafter, he and Amir Hamza got
prepared the sketch of accused vide memo Ex -D/1 and also appeared before the Judicial
Tribunal, High Court of Balochistan as eye -witness and recorded his statement. On
4.8.2010 at about 9:30 p.m. the police officials took him to CIA center for identif ication
parade, but there he was handcuffed. He further deposed that when he was produced before the Judicial Magistrate for recording his statement, he showed the marks of violence, whereupon the Judicial Magistrate called Ghulam Fareed and directed to sh ift
him to judicial custody, but he was again took to CIA center by the police. From 14.7.2010 till 4.8.2010 he remained present at the house of deceased and the police never raided at his house nor recovered anything from him. Appellant Munir Ahmed is his cousin, who is resident of Goth Baho Khosa, Jacobabad and has also a house near
to his house. The wife of deceased namely Rehana is like his sister and mother, against whom a false allegation has been leveled.
Appellant Munir Ahmed, deposed that he was re sident of Goth Baho Khosa, District
Jacobabad and runs a cloth shop there, whereas his brother Manzoor Ahmed also used to sit with him in the shop. On 6.8.2010, his brother was arrested by the local police and taken to police station. When he and his uncle went to the office of DPO Jacobabad,
the police arrested him, and released his brother, where after, he was tortured.
Appellant Ghulam Shabbir deposed that on 10.8.2010, he and his brother Ghulam
Raza were sitting in their Kariana shop at their village. M irpur police came and on the
pretext of information, they were taken to Mirpur Police Station. After a while they were shifted to Shikarpur from where they were handed over to Quetta police. After sometime his brother was released, but on false allegations he was involved in the
murder case and put him on trial. He denied recovery of pistol or ammunition from him and also having any concern with commission of the offence.
DW-1 Ghulam Raza (brother of appellant Ghulam Shabir) deposed that on 10.8.2010,
he al ong with Ghulam Shabbir and other relatives was present at his shop, at Goth.
When the police of Mirpur Mathelo, arrested them, taken them to Shikarpur and handed over to Quetta police. They were kept in custody for 23 days, and he was released on personal surety, but his brother remained in custody. He deposed that no arm was
recovered from his brother, who was falsely implicated in the instant case.
DW-2 Waqar Ahmed (Senior Clerk, District and Sessions Court, Quetta) produced a
number of papers, marked as Ex-D/2 to Ex -D/8, prepared during the course of
investigation.
DW-3 Hameedullah Dasti PDSP, deposed that on 9.9.2010, he gave his legal opinion
in case FIR No.177/2010, offence under section 13(d), Arms Ordinance, 1965 and produced the same as Ex -D/3.
DW-4 Manzoor Ahmed, deposed that on 6.8.2010, at about 10:00 O'clock local police
arrested him and his brother Munir Ahmed, at Jacobabad, but later on he was released while his brother was falsely implicated in the instant case.
6. On conclusion of the trial and hearing the arguments, the trial Court found the
appellants guilty of the offence, thus, sentenced them in the terms as reproduced in the preceding paras.
7. The learned counsel for the appellants (convicts) contended that the name of the
appellants did not transpire in the FIR; that it was a case of circumstantial evidence, which is always considered as a weak type of evidence and is not admissible as per Article 38 of the Qanun- e-Shahadat Order, 1984; that the circumstantial evidence produced by the prosecution
is not worthy of reliance due to the improvements and contradictions; that the requirement of section 103, Cr.P.C. was not complied with at the time of recovery of the weapons used in commission of the offence. The learned counsel further contended that the crime empties were
taken into custody from the site on the day of incident, but the same were not sent for chemical examination on the day, rather remained in custody of the Investigating Officer till recovery of the crime weapon. Furthe r the empties, and the crime weapons were sent together for chemical
analysis, this state of affairs create doubt, therefore, cannot be relied upon: that during the trial the prosecution has miserably failed to bring on record the evidence which specifical ly involve
the appellants in commission of the offence, hence, in the circumstances, the convictions are highly unwarranted and liable to be set aside. In support of their contentions, they relied upon 2009 SCMR 230 + 2010 SCMR 1009 + 2011 MLD 811 + 2012 S CMR 428 + 2015 PCr.LJ 459
Sindh + 2016 YLR 905 Peshawar and 2016 PCr.LJ 206 FSC.
8. Conversely, the learned Additional Prosecutor General (APG) opposed the appeal, and
stated that the trial Court after taking into consideration the material available on th e record,
has rightly convicted and sentenced the appellants, which do not call for interference by this
Court. She relied on the disclosures made by the appellants resulted in recovery of the crime weapons and the report of the Fire Arms Expert in the pos itive terms, fully corroborated the
case of the prosecution, supported the decision of the trial Court.
9. We have heard the learned counsel for the parties at length and have gone through the
record. The prosecution case is based on the following pieces of evidence.
i. Ocular evidence produced by PWs -2, 3 and 4.
ii. Medical Evidence
iii. Disclosure by the appellants Munir Ahmed and Ejaz Ali (Ex -P/7-D and Ex -P/7-
E).
iv. Recoveries of the crime weapons i.e. Kalashnikov, pistols, and the empties from
the place of incident, and the motorcycle used in the act.
v. Positive report of the Firearms' Expert.
(i) Ocular Evidence.
10. The complainant was not an eye -witness of the occurrence, rather as contained in FIR,
Ejaz Ali son of Abdul Qadir and Amir Hamza son of Rematullah were the persons who
described to witness the incident. As far, Ejaz Ali son of Abdul Qadir was concerned, he was later on booked in the case as one of the accused, thus faced the trial and was convicted. The careful analysis of statement of Am ir Hamza (PW -2) would reveal that he supported the
prosecution case, mentioned the details of unfortunate incident, but identified only the appellant Munir Ahmed, however unable to assign any specific role to him (Munir Ahmed) in commission of the act. Though, he (PW -2) was nephew of the deceased, but was not proved to
be an interested witness. His statement to the extent of identification of the appellant Munir Ahmed was not corroborated by PW -3 Mir Hamza son of Khan Muhammad, and PW -4 Khan
Muhammad son of Haji Sultan, who were shown to be present near the place of incident and
also saw the culprits. These witnesses though supported the prosecution version as they mentioned the details of the incident, but were unable to identify the culprits. They (PW -3 and
PW-4) were with the statements that the persons, who made firing upon the shop where the
deceased was present, were with muffled faces and it was the reason they were unable to identify them.
11. In the present case, the appellants were not nominated in the FIR, meaning thereby that
at relevant time none of the prosecution witnesses recognized any of the culprits. Thus on arrest of the appellants, test of identification was to be made, but it was not done. Identification parades were not held, nor any eff orts were made to identify the appellants by the eye -witness
Amir Hamza (PW -2). Rather for the very first time, he (PW -2) identified Munir Ahmed (one
of the appellants) before the trial Court, without specification of the role on his part. This identification was of less value, thus, need further corroboration by some positive evidence, but missing in the instant case. It was held by the Hon'ble Supreme Court in case Farman Ali
v. The State reported in 1997 SCMR 971 that:
"Holding of identification test bec omes necessary in cases; when names of the culprits
are not given in the FIR. Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits."
The Hon'ble Supreme Court further held in case Asghar Ali v. The State, reported in
1992 SCMR 2088 that;
"the identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving the identity of the culprit."
In view of the principle determined, the mere identification of the appellant Munir
Ahmed before the Court by the PW -2 that too without any specific role unable to meet the
requirement, thus, no reliance could be placed on it.
12. (ii) Medical Evidence.
The evidentiary value of the medical evidence furnished by the prosecution is to be
assessed on basis of the law as settled that the medical evidence is a type of supporting
evidence, which may confirm the ocular account with regard to receipt of injury, nature of the
injury, kind of wea pon used in the occurrence, but not able to identify the assailants. Reference
in this context may be made to the cases Muhammad Tasweer v. Hafiz Zulqarnain and 2 others (PLD 2009 SC 53) + Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103) and Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410). Thus the
medical evidence on the record only proved unnatural death of the victim due to the injuries sustained through firearms and none else.
13. (iii) Disclosure by appellants Munir Ahmed and Ejaz Ali
In addition to the statement of PW -2, the other important piece of evidence was the
disclosures made by the appellants Munir Ahmed and Ejaz Ali on 13.08.2010. PW -7 SI Faiz
Ahmed the marginal witness of the memos of disclosure produced a nd marked as Ex. P/7- D
and Ex -P/7-E. It is a settled principle of law that the disclosure, while in custody of Police, is
of less value under the provisions of Qanun - e-Shahadat Order, 1984. Article 40 of the Order
is with an exception and determine the ev identiary value of a disclosure on part of an accused
while in custody. It reads as under:
"Article 40. How much of information received from accused may be proved .---
When any fact is deposed to as discovered in consequence of information received, from a person accused of any offence, in the custody of a police- officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
But if nothing in consequence of the disclosure is recovered or discovered then the
information so received by itself would not be admissible. In this regard, the reference can be made to the following judgments/case laws:
Confessional statement of accused before police which leads to discove ry of no new
fact or circumstance on pointation of accused would have no evidentiary value and such confessional statement before police cannot be used against accused. 'The State and others v. Asmatullah and others' {PLD 2007 Quetta 12}.
Appreciation of evidence.---Extra -judicial confession. Principle. Extra -judicial
confession is a very weak type of evidence and no conviction on it can be awarded without its strong corroboration on the record. Wazir Muhammad and others v. The State {2005 SCMR 277(a)}.
In the case in hand, on 13th August 2010, the appellants Munir Ahmed and Ejaz Ali
were arrested and Kalashnikov and pistol were recovered respectively on pointation and possession. The disclosures were made later in time on the same date. It was evident that the
recovery of crime weapons were not in consequence of the disclosures, rather it was effected earlier in time, thus, there was no discovery of fact on basis of the information given, thus, of no legal effect nor could be relied upon.
14. Furthermore, p erusal of the record reveals that on 17.8.2010 (Ex D/3 and Ex -D/4), at
the request of Investigation Officer, the Sessions Judge, Quetta authorized Judicial Magistrate -
II, Quetta for recording statement of accused Ejaz Ali under section 164, Cr.P.C. Ex -D/7 shows
that on the same day, the Judicial Magistrate -II, called Ejaz Ali for recording his statement
under section 164, Cr.P.C. and found that the accused was under fear and pressure, who told him that electric shocks were given to him. The Magistrate also observed marks of torture on his body, thus, the Investigating Officer was directed to shift the accused to judicial custody. This fact further negate the making of disclosure voluntary on part of Ejaz Ali.
15. (iv) Recovery of crime weapons
The prosecuti on further placed reliance on the recovery of Kalashnikov along with five
rounds from the residential room of appellant Munir Ahmed, which were taken into possession vide seizure memo Ex -P/6-C, recovery of T.T pistol along with four rounds from the possess ion
of appellant Ejaz Ali vide seizure memo Ex -P/6-D and recovery of T.T pistol along with one
round from the possession of appellant Ghulam Shabbir vide seizure memo Ex -P/7-F. There is
no need to discuss the said evidence because we have already disbeliev ed the ocular evidence
and the disclosures recorded while in custody, therefore, the appellants cannot be convicted merely on the basis of the above mentioned recoveries, which are only corroborative pieces of evidence. Reference in this regard may be made to the case Muhammad Afzal alias Abdullah
and others v. The State and others {2009 SCMR 436}, wherein the Hon'ble Supreme Court held as under:
"After taking out from consideration the ocular evidence, the evidence of identification
and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well -settled that
unless direc t substantive evidence is available conviction cannot be recorded on the
basis of any other type of evidence howsoever, convincing it may be."
Similarly in the case Abdul Mateen v. Sahib Khan and others (PLD 2006 Supreme
Court 538), at page 543, the following dictum was laid down.
'It is a settled law that, even if recovery is believed, it is only corroborative. When there is no evidence on record to be relied upon, then there is nothing which can be corroborated by the recovery as law laid down by this Co urt in Saifullah's case 1985
SCMR 410.'
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases
Muhammad Yaqub v. The State (1971 SCMR 756) and Nek Muhammad and another v. The State (PLD 1995 Supreme Court 516).
16. So far recovery of motorcycle Yamaha 100 CC was concerned, perusal of the statement
of PW -6 IP Ghulam Shabbir shows that on 13.8.2010, he along with ASI Fakhr Alam and IP
Ghulam Farid was present in CIA staff office, meanwhile a person Sher Muhammad came, and handed over a motorcycle to the Investigating Officer, which was taken into possession vide seizure memo Ex -P/6-B. PW -6 in his statement remained unable to disclose the particulars of
Sher Muhammad and his connection with the motorcycle. Even said Sher Muhammad was not produced as witness before the trial Court. On the contrary, PW -10 IP Ghulam Fareed, the
Investigating Officer, was with the statement that on the basis of disclosure and pointation of the appellant Munir Ahmed, the motorcycle was recovered from a shop sit uated at Abdul Sattar
Road, Quetta, but neither he disclosed the name of the shop or of the shopkeeper, from where the recovery was effected. Both the witnesses contradicted each other regarding recovery of the motorcycle, which creates serious doubt in it s veracity. In addition this piece of evidence
unable to establish the nexus between the accused and the recovered motorcycle, and its use in commission of the offence. Therefore, no reliance can be made on the recovery of the motorcycle.
17. The Investiga ting Officer also took into possession extract of register of Shalimar Hotel
and Restaurant (seizure memo prepared and produced before the court as Ex -P/6.A) to
corroborate the acts on part of the appellants Munir Ahmed and Ghulam Shabbir, but failed. It was for the reason that the document was also not proved as required. The owner or the manager
of the Hotel was not produced as witness, nor any effort was made to identify the appellants as the persons who in fact resided in the hotel on the relevant dates .
18. (v) Positive report of Fire Arms Expert.
The prosecution also placed reliance on the Examination Report of the Fire Arms
Expert placed on record as Ex -P/11- B. The record reveals that the two crime empties and five
led were recovered on 14.7.2010, the day of incident, but were not sent to the Fire Arms Examination Unit, Karachi (FAEUK) for analysis, rather remained in the police custody till 20.9.2010. If it be presumed that the said crime empties were in fact available at the spot, and had been right ly recovered by the Investigating Officer were in safe custody. The empties
remained in the police station for more than eight weeks as received on 20.9.2010 for examination in the Laboratory along with a kalashnikov and two pistols, which had allegedly been recovered at the instance of the appellants on 13.8.2010. Even no explanation had been
offered for not dispatching the crime weapons to the FAEUK on their recovery, which were sent with a delay of more than one month. The prosecution did not come forwar d to tender any
explanation for the delay in dispatching the crime shells, kalashnikov and pistols for the Expert's opinion and about their safe custody during the period. This fact seriously undermine the evidentiary value of the recovered weapons as well as of the empties. Sending of crime
empties and the weapons of offence together after a long delay cast a serious doubt and diminish legal value of the report though in positive terms. Reliance in the behalf is placed on the cases Muhammad Shafi and anoth er v. The State {PLD 1968 Lahore 869}, Mustaqeem v.
Nawab Khan {2016 YLR 905}, Iqbal Zada v. The State through Additional Advocate General and 3 others {2014 PCr.LJ 1397}, Samandar alias Qurban v. The State {2017 MLD 539}, Mehmood Ahmed v. The State {2012 YLR 2314} and Ali Shair and others v. The State {2008 SCMR 707). As far the pistols were concerned, the report only stated them to be in working condition, but no match with crime empties. It was to be noted as per seizure memo Ex -P/7-C
no shell of bullets fired from pistols were recovered from the site, nor taken into custody.
Similarly, positive Serologist Report qua blood stained articles as well as Death Certificate of
the deceased only prove the unnatural death of the deceased with firearm on the parti cular
place, but by whom, it never tells the names of the culprit(s).
19. We have considered all the aspects of this case and have come to this irresistible
conclusion that the prosecution failed to prove its case against the appellants beyond shadow
of doubt. The evidence on record unable to connect the appellants with commission of the offence. It is by now well settled law that if there is a single circumstance, which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused,
whereas, the instant case is replete with number of circumstances, which have created serious doubt about the prosecution story. In Tariq Pervez v. The State (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under: -
"5.......The concept of benefit of doubt to an accused person is deep- rooted in our
country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
The Hon'ble Supreme Court of Pakistan, while reiterati ng the same principle in the case
Muhammad Akram v. The State (2009 SCMR 230), at page 236, observed as under:
"13 .............It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed
by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances
creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
20. In the light of above discussion, we are of the view that the prosecution has failed to
prove its case against the appellants beyond the shadow of doubt, therefore, we accept the Criminal Appeals Nos. 317 of 2012 and 8 of 2013 filed by the appellants Ghulam Shabbir, Ejaz Ali and Munir Ahmed, set aside the conviction and sentence recorded by the Sessions Judge, Quetta vide judgment dated 13.12.2012 and acquit them of the charges by extending them benefit of doubt, in case FIR No.151/2010, Satellite Town Police Station, Quetta. They are in custody, be released forthwith if not required in any other case.
JK/117/Bal. Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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