2019 P Cr. L J 573
[Balochistan]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
NASEER AHMED and others ---Appellants
Versus
The STATE---Respondent
Criminal Appeals Nos. 401, 415 and 442 of 2017, decided on 31st July, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---
Prosecution case was that accused and his co -accused persons murdered brother of the
complainant by strangulation ---Record showed that accused, before prosecution wi tness, had
disclosed that all the accused persons were friends of the deceased and the accused persons
made a plan to commit unnatural offence with the deceased ---Accused persons took the
deceased to the house of co -accused and made attempt to persuade him for unnatural offence,
but deceased was reluctant and started shouting that he would inform the police ---Co -accused
committed his murder by strangulation ---Accused got recovered motorcycle and pointed the
place of occurrence and the place where accused persons threw the dead body of the
deceased ---Said disclosure of accused was recorded in presence of Police Official/witness,
who had fully corroborated the same on all counts ---Co -accused whilst narrating the story
had stated about the conspiracy for calling the deceased in his house, persuading the deceased for unnatural offence and his shouting and reluctance, which ultimately resulted into his murder with handkerchief by him, while accused and other co- accused caught hold of the
deceased ---After committin g his murder, they put the dead body in a sack and threw the same
in the field ---Disclosures of the accused persons brought new facts regarding motive behind
the occurrence, i.e. attempt to commit unnatural offence with the deceased, which fact earlier was not known to anyone ---In pursuance of disclosure, recovery of motorcycle and the
mobile phone of the deceased was effected on the pointation of co -accused from his house ---
Recovery of trolley/handcart, sack and the handkerchief corroborated the contents o f the
disclosures ---Accused persons had confessed that they had committed the murder by
strangulation with handkerchief, while at the time of discovery of dead body, said handkerchief was found tightened on the neck of deceased and that fact was confirmed by Medical Officer ---Discovery of new facts in the disclosures, which were not previously
known to anyone followed by the recovery of incriminating articles were suggestive of the fact that the disclosures made by the accused persons were voluntary thus admissible ---
Accused persons had failed to bring on record any mala fide of the police for their false
implication ---Circumstances established that the prosecution through confidence inspiring
circumstantial evidence had proved the charge against the accused persons ---Appeals, thus
being devoid of merits, were dismissed in circumstances.
(b) Qanun- e-Shahadat (10 of 1984) ---
----Art. 40--- Disclosure of accused --- Admissibility --- If any incriminatory material related
to the case was recovered or any fact was discovered in consequence of the information
conveyed by the accused persons, the information so received would be admissible in
evidence within the purview of Art. 40 of the Qanun- e-Shahadat, 1984.
Muhammad Amjad v. The State PLD 2003 SC 704 and Za kir Khan and others v. The State
1995 SCMR 1793 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence---Non -
appearance of complainant ---Effect ---Non -appearance of the complainant was not fatal for
prosecution if he was not eye -witness of the occurrence nor had nominated any accused.
Iqbal Ahmed Kasi for Appellants.
Shabir Ahmed Rajput for the Complainant.
Habibullah Gul, Additional Prosecutor -General for the State.
Date of hearing: 23rd July, 2018.
JUDGMENT
ABDULLAH BALOCH, J .---This common judgment disposes of Criminal Appeals
Nos. 401, 415 and 442 of 2017 filed by the appellants (convicts) Naseer Ahmed son of Abdul
Ghafoor, Rehmat Ullah son of Abdul Marjan and Muhammad Younas son of Khair Muhammad, respectively, against the judgment dated 29th November 2017, (hereinafter referred as, "the impugned judgment") passed by learned Sessions Judge, (Ad hoc) Quetta (hereinafter referred as, "the trial Court"), whereby the appell ants were convicted under
sections 302(b), 34, P.P.C. and sentenced to suffer life imprisonment as Tazir each with compensation of Rs.200,000/ - (Rupees Two Lac) each, as envisaged under section 544- A,
Cr.P.C. to be paid to the legal heirs of deceased or in default thereof to further suffer one (01)
year's S.I., with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 8th January 2015, the complainant Muhammad Hassan
son of Ali Juma, lodged FIR No. 02/2015 at Police Station Saddar Quetta , under sections
302, 34, P.P.C., stating therein that on 3rd January 2015 at about 12:00 pm his younger
brother Mustafa aged 18/19 years, being plumber by profession went out of his house on his motorcycle to Liaquat Bazar Quetta having a Nokia Mobile hav ing SIM No.0311- 1842119
and while proceeding in the way he met with his friend Abdul Latif volunteer at police blockade at A -One City and told him that he is going to Bazaar and if his number was found
off, then he may contact him on his another mobile num ber 0313- 2280082. It is further
averred in the FIR that when at about 04:00 p.m. he (complainant) made a call on his brother's number i.e. 0311- 1842119, the same was found off, hence he contacted his relatives
and friends of his brother. The friend of his brother volunteer Abdul Latif told him that
at 12:00 p.m. (Mustafa) came at A -1 City Police blockade and also given another number to
him, he (complainant) also contacted on second number, but the same was also going off, hence he at his own was making se arch, but the whereabouts of his brother could not be
traced out. However, today (08.01.2015) he saw a publication in Daily Mashriq, thus along with his relatives went to mortuary of Civil Hospital Quetta, where found the dead body of his brother in whose neck strangulation mark was visible, besides his right eye was also removed. It is further averred that the dead body of his brother was brought in hospital a day before by the police authorities of Police Station Saddar from Killi Arbaban field.
3. Pursuant to above FIR, the investigation was entrusted to PW -6 Abdul Rahim
Khokhar, IP/Investigating Officer ("IO"), who during investigation visited the site and
prepared map; took into possession the clothes of deceased; recorded the statements of witnesses under section 161, Cr.P.C.; obtained Call Detail Reports ("CDR") of Mobile Sims
Nos.0311- 1842119 and 0313- 2280082; took into possession the mobile phone of the
appellant Naseer Ahmed containing Sim No.0332- 7884635; arrested the appellant; recorded
the disc losure of appellant Naseer Ahmed and on his pointation made recovery of Ravi
Motorcycle; prepared site map of house; arrested the appellant Muhammad Younas and recorded his disclosure; recovered the motorcycle and mobile phone of deceased on the pointation of appellant Muhammad Younas from his house; prepared inquest report of
deceased; obtained MLC and on completion of investigation submitted the challan in the trial Court.
4. At the trial, the prosecution produced seven witnesses. The appellants have al so been
examined under section 342, Cr.P.C. They neither recorded their statements on oath under
section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of trial and hearing the arguments, the trial Court convicted and sentenced th e appellants as mentioned
above in para -1 above, whereafter the instant appeals have been filed.
5. Learned counsel for the appellants contended that the impugned judgment is result of
misreading, non -reading and mis - appreciation of evidence available o n record; that the
complainant of the case has not been produced by the prosecution, thus the contents of the
FIR were left unrebutted and inference can be drawn that had the said witness was produced in the court, his statement would be unfavorable to the prosecution; that the prosecution has
absolutely failed to bring on record any direct or indirect evidence against the appellants; that
the circumstantial evidence so produced by the prosecution is nothing, but a broken chain and
thus not enough to establ ish the guilt of the appellants; that the alleged disclosures of the
appellants whilst recorded in police custody are inadmissible under Articles 38 and 39 of the
Qanun- e-Shahadat Order, 1984; that the recoveries so made are also not helpful to the case of
prosecution being easily available in open markets; that the prosecution has failed to establish that the alleged mobiles Sims were registered in the name of deceased and the appellant, thus in absence of any incriminatory evidence it cannot be presumed t hat mobile phones were
remained in the use of the deceased or the appellant or that they had any relation with each other; that the prosecution has failed to establish the charge against the appellant, but despite all these material aspects of the case, th e learned trial Court has erroneously held guilty to the
appellants and recorded sentences through the impugned judgment, which requires
interference of this Court by means of reversing the impugned judgment and acquitting the appellants of the charge.
6. Learned Additional Prosecutor General assisted by learned counsel for the
complainant while supporting the conviction and sentence contended that sufficient
incriminating evidence is available on record connecting the appellants with the commission of of fence, who initially called the deceased in the house of appellant Muhammad Younas
and made an attempt to commit unnatural offence with him, but on his hue and cries and shouting, they committed his murder by strangulation; that the disclosures so recorded by the
appellants have also been followed by the discovery of new facts, whereby not only the motive behind the occurrence and the manner of committing murder were emerged, but also the recovery of motorcycle and mobile phone remained in the use of the de ceased were
effected, thus admissible under the law; that all the circumstantial evidences are connecting with each other, thus the trial Court after proper appreciation of evidence had rightly awarded conviction to the appellants through the impugned judg ment, which otherwise is not open for
interference by this Court.
7. Heard the learned counsel and perused the available record with their able assistance.
It is evident from the perusal of record that the unnatural death of deceased Mustafa by
strangula tion is not disputed. The defence has admitted the unnatural death of deceased, but
pleaded their false implication. PW -7 Dr. Ali Mardan, Police Surgeon Civil Hospital Quetta,
examined the deceased and confirmed that the deceased was strangulated and his r ight eye
was missing and removed by a sharp edge weapon. Whilst examining the dead body, PW -7
has observed that a Reshmi Roomal tied and the neck removed and a 16 cm length and 3 cm
width circular bruise seen around the neck. The Investigating Officer whil e carrying out
proceedings under section 174, Cr.P.C. has also observed such injuries on the person of deceased.
8. Adverting to the statements of prosecution witnesses, suffice to state here that the
prosecution in order to substantiate the charge has produced the evidence of seven witnesses.
PW-1 Abdul Latif, was the friend of deceased, who brought on record that on the day of
occurrence the deceased had met him and told that he is going to somewhere and in case his mobile phone was found switched off, he may contact him on his second Cell No.0313-
2280082, but after his departure when at about 01.00 p.m. he contacted the deceased on his
Cell numbers, but the same were found switched off. According to PW -1 in the evening he
brought the facts in the notice of the complainant, who is the brother of the deceased and also
provided him the second Cell number.
The statement of PW -1 is suggestive of the fact that the deceased had already some
reservations/fear of his harming and that was the reasons he provided his second Cell number
to PW -1 as precautionary measure.
9. PW-2 Mansoor Ahmed is the witness to disclosure of the appellant Naseer Ahmed
Ex.P/2 -A, perusal of which reflect that the appellant Naseer Ahmed has confessed his guilt
and has brought on recor d that they (appellants) were the friends of the deceased Mustafa
since long, while the deceased had requested them for preparation of his Computerized
National Identity Card (CNIC), hence all the appellants made a plan to commit unnatural offence with the deceased, thus on such pretext of preparing his CNIC, i.e. the appellants
contacted him on telephone and picked him from Spiny Road. The deceased was riding his own motorcycle, while the appellants Rehmatullah and Naseer Ahmed were riding on another motor cycle, whereas as per plan the appellant Muhammad Younas was already present in his
house. Thus, they took him in the house of Muhammad Younas situated at Kharotabad and made an attempt to persuade him for unnatural offence, but he was reluctant and starte d
shouting that he will inform the police, thus the appellant Muhammad Younas took out handkerchief from his pocket and revolved the same around the neck of the deceased and also suggested the co -accused to commit his murder, otherwise he will create probl em for them,
which was conceded to, thus they overpowered the deceased, while the appellant Muhammad Younas committed his murder by strangulation. Thereafter, they put the dead body in a sack and on a trolley/handcart they took the dead body and threw the same in the fields of Killi Arbaban. Appellant Naseer Ahmed in his disclosure admitted that the crime weapon i.e. Reshmi Roomaal remained on the neck of the deceased, while the motorcycle of deceased remained in the house of Muhammad Younas.
After recording his disclosure, the appellant Naseer Ahmed got recovered his motorcycle
from a house situated nearby the Jinnah Town, which was taken into possession through
recovery memo Ex.P/2 -B. He also pointed the place of occurrence situated at Noorzai Town
Kharotabad and the place where they threw the dead body i.e. fields of Killi Arbaban.
10. The disclosure of appellant Muhammad Younas (Ex.P/3- B) was recorded in presence
of PW -3 Naseer Ullah, AS1, perusal of which reveals that it has fully corroborated the
disclosure of the co- accused Naseer Ahmed on all counts. The appellant Muhammad Younas
whilst narrating the story stated about the conspiracy for calling the deceased in his house;
persuading the deceased for unnatural offence and his shouting and relu ctance, which was
ultimately resulted into his murder with handkerchief by him, while the co -convicts accused
Naseer Ahmed and Rehmatullah caught hold of the deceased and after committing his murder
they put the dead body in a sack and threw the same in the fields of Killi Arbab. The sack
was produced in the Court as Ex.P/3- A, while the appellant Muhammad Younas got
recovered the Nokia mobile phone white colour along with a Battery owned by the deceased
as Ex.P/3 -C, the trolley/handcart as Ex.P/3- D. The appellant Muhammad Younas has also
correctly pointed out the place of recovery of dead body, where they had thrown the same. The motorcycle of deceased Honda CD -70 bearing Registration No.7929 was got recovered
on the pointation of appellant Muhammad Younas a nd produced as Art.P/7.
11. The disclosure of the appellants brought new facts regarding motive behind the
occurrence i.e. an attempt to commit unnatural offence with the deceased, which fact earlier
was not known to anyone. In pursuance of disclosure, r ecovery of motorcycle and the mobile
phone of the deceased was effected on the pointation of appellant Muhammad Younas from his house. The recovery of trolley/handcart, sack and the handkerchief also corroborate the contents of the disclosures. The appella nts have confessed that they have committed the
murder by strangulation with handkerchief, while at the time of discovery of dead body the said handkerchief was found tightened on the neck of deceased and this fact was confirmed by PW -7, being Medical Offi cer.
Discovery of new facts in the disclosures, which were not previously known to anyone followed by the recovery of incriminating articles mentioned above are suggestive of the fact that the disclosures made by the appellants are voluntary and are admi ssible.
12. So far as the objection raised by the defence that the disclosures of the appellants are
not admissible under Articles 38 and 39 of the Qanun- e-Shahadat Order, 1984, suffice to
observe here that if any incriminatory material related to the ca se is recovered or any fact is
discovered in consequence of the information conveyed by the accused person, then the
information so received would be admissible in evidence within the purview of Article 40 of the Qanun- e-Shahadat Order, 1984 because then t he presumption would be towards its
truthfulness. Since, the disclosure of the appellant relates to discovery of new facts as well as followed by the recovery of mobile phone and motorcycle of the deceased and the articles
used in the crime, therefore, the same are admissible pieces of evidence. In the case titled
Muhammad Amjad v. The State, PLD 2003 SC 704, the Hon'ble Supreme Court held as
under:
"Further it is noted that as per Article 40, corresponding to section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in
custody of a police officer, such information whether it amounts to a confession or not as it
relates distinctly to the fact thereby discovered, may be proved. The information supplied by
the appellant under Article 40 ibid relating to incriminating articles is admissible."
Similar view has also been taken from the case of Zakir Khan and others v. The State, 1995
SCMR 1793, wherein it has been held that:
"In fact Article 40 operates as a proviso to the preceding Articles. However, in order to make
any such information admissible, what is required to be established by the prosecution is that any Article or such other evidence discovered during the investigation of a case in consequenc e of information supplied by the accused connects him with the crime. The
information supplied by one accused in this case led to another accused which in consequence of the information supplied by the latter, led to the discovery of incriminating
evidence against him, connecting each of them with the crime. There being no doubt about
the admissibility of such evidence under Article 40 of Qanun- e-Shahadat, the Court was only
left to consider sufficiency of such evidence against each of the appellants to connect him with the crime. Such evidence, as pointed out earlier, was therefore, admissible under Article 40 of Qanun- e-Shahadat."
13. The circumstantial evidence in the case in hand links one circumstance with the other
without any lapse. The fard- e-bayan of complainant, wherein he has specifically stated
missing of his brother. Secondly, PW -1 being friend of deceased met him (as last seen
evidence) the deceased given his two numbers to him that if he became late or his first Cell
number was found switched off, then he (PW -1) should contact on his second Cell number,
which suggests that the deceased had already some reservations/fear. Thirdly, accordingly after his departure his numbers were found switched off. Such information was conveyed by the PW -1 to t he complainant on the same day, however, they themselves made search till the
time of discovery of dead body by the police and kept it in mortuary of Civil Hospital, accordingly FIR was lodged on 8th January 2015 against unknown accused persons. Thirdly, the appellants were arrested during investigation, made disclosure coupled with the recovery
of motorcycle and mobile phone of deceased from the house of the accused Muhammad Younas. The new facts disclosed by them connect the chain of crime unbroken, as pe r
disclosure of appellants the handkerchief used for strangulation of deceased was also found on the neck of deceased. Fourthly, the medical evidence has corroborated the circumstantial evidence and disclosures of the appellants. Fifthly, the motive behind occurrence has also
been established i.e. an unsuccessful attempt of committing unnatural offence. All these
evidences have fully established the prosecution case and the defence has not been able to
shatter the same.
14. Now adverting to the objections taken by the defence that the prosecution has failed to
establish that the mobile Sims so recovered were not registered in the name of the deceased
and the appellants, thus it cannot be presumed that the same were in the use of the deceased or appellants, it is observed that legally there is no bar that a person cannot use or possess the
mobile Sim of any of his friends or blood relations. Even otherwise, it is a bitter truth that still
hundreds of thousands of Sims have wrongly been registered on the name s of the persons,
who are not users of the same. Thus, the objection of the learned defence counsel is without
any substance, which is hereby spurned.
15. As far as the objection regarding non- production of the complainant being the brother
of deceased i s concerned, suffice to observe here that non- appearance of the complainant is
not fatal for prosecution as he was not an eye -witness of the occurrence nor he had nominated
any accused.
16. Reappraised of prosecution evidence establishes the fact that th e prosecution through
confidence inspiring circumstantial evidence has proved the charge against the appellants.
17. The appellants have failed to bring on record any mala fide of the police for their false
implication. Mere bald words of an accused that he was involved in the crime due to non-
payment of bribe to the police, is not sufficient to brush- aside the entire prosecution evidence,
which otherwise is consistent and confidence inspiring. The motive behind the occurrence
has also been established.
18. We have also perused the impugned judgment delivered by the trial Court and it is
observed that the trial Court has properly appreciated the evidence available in record. The
impugned judgment passed by the trial Court does not warrant interference of this Court.
For the above reasons, the appeals being devoid of merits, are hereby dismissed.
JK/68/Bal. Appeals dismissed.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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