2023 P Cr. L J 1823
[Balochistan]
Before Abdullah Baloch and Iqbal Ahmed Kasi, JJ
MUSHTAQ AHMED ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 271 of 2022, decided on 19th June, 2023.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---CCTV footage ---Forensic test not
carried out ---Effect ---Accused was charged for committing murder of the uncle of the
complainant ---Prosecution alleged that the accused was involved in the present case through
CCTV footage ---For proving the murder, video clips/tapes were produced during the
evidence through a Police Official ---According to said witness, the video clips/tapes were
downloaded in USB from the room of deceased and from a Medical Store, but the original
video clips/tapes were never produced during the trial ---No forensic analysis of the said
video clips/tapes was ever carried out, nor any report of expert was ever produced by the prosecution---If original video clips/tapes were delivered to Investigating Officer, then, the
forensic test would have been done ---Original clips/tapes were not brought on record, thus,
an adverse presumption could be drawn that the said clips/tapes were the result of camera trick ---Moreover, it was not established by the prosecution that as to when and by whom the
video in a USB were prepared/downloaded, so there was possibility that same were prepared in the lab or some film studio---In absence of any forensic report, the genuineness or otherwise of the said video clips/tapes could not be determined and no reliance could be placed on such piece of evidence ---Circumstances established that the prosecution had failed
to bring home guilt of accused---Appeal against conviction was allowed accordingly.
Asfadyar and another v. Kamran and another 2016 SCMR 2084 and Ishtiaq Ahmed
Mirza and others v. Federation of Pakistan PLD 2019 SC 675 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Admission of accused before the
police ---Non -admissible ---Accused was charged for committing murder of the uncle of the
complainant ---Admittedly, the admission of accused was before Police, but he was not
produced before the Judicial Magistrate, concerned, as admittedly, at that time he was in police custody---Confession made by any person while he was in custody of Police Officials would not be proved against an accused of any offence ---In the present case, the accused was
arrested on 08.12.2020, while the alleged confession was made before Police on 11.12.2020,
which showed delay of about 03 days and hence lost its credibility---Circumstances
established that the prosecution had failed to bring home guilt of accused---Appeal against conviction was allowed accordingly.
(c) Penal Code (XLV of 1860)---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S. 103---Qatl -i-amd---Appreciation of
evidence--- Recovery of currency from the house of circumstantial witness ---Non -associating
of private witnesses during recovery proceedings ---Effect ---Accused was charged for
committing murder of the uncle of the complainant ---Circumstantial witness deposed that no
currency was recovered from his house, while as per recovery memo, Rs.5,42,000/ - were
recovered from the house of said witness ---Alleged recovery was also made in sheer
violation of S. 103, Cr.P.C. ---Admittedly, the alleged recovery was made in thickly
populated area, but none of the inhabitants was made as mushir ---As per recovery memo,
when the main door of the house was knocked one person came out, who was inquired about said witness, whereafter, he called the said witness, but surprisingly, he was also not associated as mushir to strengthen the prosecution version--- Circumstances established that
the prosecution had failed to bring home guilt of accused---Appeal against conviction was allowed accordingly.
(d) Penal Code (XLV of 1860)---
----S. 302(b) --- Qatl-i-amd--- Appreciation of evidence--- Material contradictions between
the statements of witnesses ---Effect ---Accused was charged for committing murder of the
uncle of the complainant ---Record showed that there were material contradictions between
the statements of prosecution witnesses ---Circumstantial witness in his testimony before the
Court deposed that on 06.12.2020, he was present at his shop, in the meanwhile, a witness came there and told that the deceased was lying unconscious in his room; as he knew the deceased, for the last 3/4 years, therefore, he and other witness rushed towards the room of deceased and when he checked the pulse of deceased, the same had stopped; thus, he came out and informed other people ---However, the statement of the other witness did not support
the version of circumstantial witness, as he did not state a single word with regard to presence of said witness at the place of occurrence, in his testimony before the Court ---
Circumstances established that the prosecution had failed to bring home guilt of accused---Appeal against conviction was allowed accordingly.
(e) Penal Code (XLV of 1860)---
----S. 302(b) ---Qanun -e-Shahadat (10 of 1984), Art. 22---Qatl -i-amd---Appreciation of
evidence--- Non-conducting of identification parade of the accused---Effect ---Accused was
charged for committing murder of the uncle of the complainant ---Record showed that the
witness, who first visited the room/office of the deceased, where he found him dead, deposed that he saw a young boy there, but after arrest, the prosecution did not conduct identification parade of the accused through said witness, which also gave r ise to doubts that why the
Investigating Officer did not conduct identification parade ---Thus, a presumption could be
drawn that the said witness did not support the stance of prosecution--- Circumstances
established that the prosecution had failed to bring home guilt of accused---Appeal against
conviction was allowed accordingly.
(f) Criminal trial ---
----Benefit of doubt ---Principle ---If a single circumstance creats reasonable doubt in a
prudent mind regarding guilt of an accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right.
Muhammad Mansha v. The State 2018 SCMR 772; Tariq Pervez v. The State 1995
SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Zaman v. The State 2014 SCMR 749 rel.
Alamzaib Nasar and Rehmatullah Momin for Appellant.
Hameedullah Kakar for the Complainant.
Ameer Hamza Mengal, Additional Prosecutor General for the State.
Date of hearing: 16th May, 2023.
JUDGMENT
IQBAL AHMED KASI, J. ---The instant Criminal Appeal has been preferred by
appellant Mushtaq Ahmed son of Faiz Muhammad, challenging the validity of the judgment
dated 23.05.2023 ("the impugned judgment") passed by the learned Additional Sessions Judge -II/Model Criminal Trial Court, ("the trial Court"), whereby, the appellant was
convicted under section 302(b), P.P.C. and sentenced imprisonment for life (RI) as ta'zir and to pay compensation Rs.5,00,000/ - (rupees five hundred thousand) to the legal heirs of the
deceased Abdul Ghaffar. In case of default, to further undergo six (06) months' S.I.
2. Brief facts arising out of the instant appeal are that on 06.12.2020, the complainant
Athar Khan son of Dawood Akhtar, lodged FIR No.208 of 2020, with Police Station, City, Quetta, alleging therein that his uncle, namely, Abdul Ghaffar, was living with him in his house, who was a retired employee of Cantonment Board, Quetta. His above named uncle was running the office of Islahi Aman Committee, situated at Second Floor of Pakistan Milkshake and Icecream, Liaqat Bazar, Quetta. On the fateful day, he received information that the corpse of his uncle is lying at Bolan Medical College, Hospital, Quetta, as such, he rushed to hospital and found his uncle dead. On query, he came to know that at about 05:00 p.m. his uncle was found dead in his aforesaid office. On such information, the FIR was against unknown persons.
3. After registration of FIR, the appellant/accused was arrested, investigated and sent to
face trial before the trial Court.
4. A formal charge was framed and read over to the appellant/accused, to which he
pleaded not guilty and claimed trial.
5. The prosecution in order to substantiate charge against the appellant/accused
produced and examined the following witnesses before the trial Court:
PW-1 Muhammad Yaqoob. He is a circumstantial witness.
PW-2 Atar Khan, is the complainant of the case, who produced his fard- e-bayan as
Ex.P/2- A.
PW-3 Mira Jan, is the witness, who seen the deceased lying dead in his office and
informed the other shopkeepers.
PW-4 Muhammad Zeshan, PW -5, is Masoom Khan son of Noor Muhammad PW -6
Muhammad Qaseem and PW- 7 Abdul Rehman, are the circumstantial witnesses.
PW-8 Sabir Jan (Judicial Magistrate) recorded the statement of PW -6 and PW -7,
under section 164, Cr.P.C. in the presence of appellant/accused and produced the
same as Ex.P/8 -A to Ex.P/8 -G, respectively.
PW-9 Ibrar Hussian, ASI, produced site memo, recovery memo of certain articles
along with the parcel No.1 as Ex.P/9- A and Ex.P/9 -B, seal sample, bloodstained
tissue, syringe, three injections, tissue paper as Art.P/1 to Art.P/8, parcel No.2, seal sample, white shopper, risik tables, serbex -D, protiden, tea cup along with spoon
Art.P/9 to Art.P/18. Parcel No.3, seal sample, white shopper, USB Art.P/19 to Art.P/22. Parcel No.4, seal sample, cap and coat Art.P/23 to Art.P/26. Parcel No.5, seal sample, shopper, Nokia Mobiles, one touch Mobile and Jug Art.P/27 to Art.P/32.
PW-10 Muhammad Tariq ASI, is the witness of disclosure of appellant/accused and
produced disclosure memo of appellant/accused as Ex.P/9- A and recovery memo of
5,42,000/ - as Ex.P/9 -B along with parcel seal and Notes/Pakistani Currency as
Art/P.32 to Art.P/37.
PW-11 Dr. Ali Mardan, Police Surgeon, who medically examined the dead body of
deceased and produced postmortem report as Ex.P/11- A.
PW-12 Pir Zada SI, produced recovery memo of shalwar/ qamees of deceased
Ex.P/12 -A along with parcel, seal sample and shalwar/qamees Art.P/38 to Art.P/41.
He further brought on record the recovery memo of boxes, memo of CD, as Ex.P/12-C and CD as Art.P/42.
PW-13 Muhammad Shahbaz, brought on record memo of personal search of
appellant/accused as Ex.P/13 -A along with parcel, seal sample and Mobile Phone
Art.P/43 to Art.P/45.
PW-14 Muhammad Shah, IP, is the first Investigating Officer, of the case, who
brought on record FIR, sketch of place of occurrence, sketch of place of occurrence on pointation, incomplete challan No.202 of 2020, FSL report and complete challan as Ex.P/14/A to Ex.P/14- F.
PW-15 Dr. Ali Mardan, Police Surgeon. This witness previously recorded his
statement as PW -11. He brought on record his final opinion No.029, dated 17.04.2022
as Ex.P/15 -A.
PW-16 Habibullah, ASI, recovery witness of USB and CDR.
PW-17 Muhammad Shah, IP, is the second Investigating Officer of the case, who
brought on record PFSL report, transcript report, detail of transcript report and
challan No.202B/2020 as Ex.P/17- A to Ex.P/17 -B. He articled transcript report and
detail of transcript report as Art.P/46 and Art.P/47.
6. On closure of prosecution side, appellant/accused was examined under section 342,
Cr.P.C., wherein, he again denied the prosecution allegations levelled against him and professed his innocence. However, the appellant/accused neither got recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence.
7. At the close of trial, the learned trial Court, after hearing arguments from both sides,
convicted and sentenced the appellant/ accused as mentioned in para supra.
8. Learned counsel for the appellant contended that the appellant is innocent and has
wrongly been implicated in the instant case; that the FIR was lodged against unknown persons, but the appellant was roped through alleged CCTV, footage, despite the fact that no forensic report was obtained with regard to the genuineness of the same; that no direct or
indirect evidence is available on record against the appellant/accused to connect him with the
commission of the alleged offence; that nothing has been recovered from the personal possession of the appellant; that no identification parade of the appellant was made through PW-3 Mira Jan, as, as per prosecution he saw the appellant/accused near the room of
deceased; that there are major contradictions amongst the testimony of prosecution witnesses; that the impugned judgment is result of misreading and non -reading of evidence,
warranting interference by this Court.
9. On the other hand learned DPG and learned counsel for complainant while opposing
the contention of the learned counsel for the appellant contended that the appellant/accused was arrested on the basis of CCTV footage; that circumstantial evidence also involved the appellant with the commission of the alleged offence; that the trial Court passed a well reasoned and speaking judgment, thus, there is no room available to interfere in it.
10. We have heard the learned counsel for the parties and have perused the available
record. The prosecution alleged that the appellant/convict was involved in the instant case through CCTV footage. For proving the murder, video clips/tapes were produced during the evidence through PW -16 Habibullah. According to him, the video clips/tapes were
downloaded in USB from the room of deceased and from the New Haq Medical Store, but the original video clips/tapes, were never produced during the trial. It is a circ umstance that
no forensic analysis of the said video clips/tapes were ever carried out, nor any report of expert was ever produced by the prosecution. If original video clips/tapes were delivered to Investigating Officer, then, the forensic test would have been done. The original clips/tapes were not brought on record, thus, an adverse presumption can be drawn that the said clips/tapes were the result of camera trick. It was not established by the prosecution that as to
when and by whom the video in a USB were prepared/downloaded, so there is possibility
that same were prepared in the lab or some film studio. In absence of any forensic report, the genuineness or otherwise of the said video clips/tapes could not be determined and no reliance can be placed on such piece of evidence. The Hon'ble Supreme Court of Pakistan, in the case of Asfadyar and another v. Kamran and another 2016 SCMR 2084, held that:
"Mere producing any footage of C.C.T.V. as a piece of evidence in the Court is not sufficient to be relied upon unless and until the same is proved to be genuine. In order
to prove the genuineness of such footage it is incumbent upon the defence or prosecution to examine the person who prepared such footage from the C.C.T.V. system."
Furthermore, the guidelines to prove an audio or video in the Court are elaborated in the case of "Ishtiaq Ahmed Mirza and others v. Federation of Pakistan" PLD 2019 SC 675. The Hon'ble Supreme Court of Pakistan, after referring numerous judgments on the point, incorporated following guidelines in the referred judgment. Relevant para is reproduced as under:
"11. The precedent cases mentioned above show that in the matter of proving an audio tape or video before a court of law the following requirements are insisted upon:
* No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored.
* A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the
provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.
* Under Article 164 of the Qanun- e-Shahadat Order, 1984 it lies in the discretion of a
court to allow any evidence becoming available through an audio tape or video to be produced.
* Even where a court allows an audio or video to be produced in evidence such audio tape or video has to be proved in accordance with the law and evidence.
* Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, has to be produced so as to rule out any possibility of tampering with the record.
* An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.
* The person recording the conversation or event must produce the audio tape or video itself.
* The audio tape or video must be played in the court.
* An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.
* The person record the conversation or event must identify the voice of the person
speaking or the person seen or the voice or person seen may be identified by any other
person who recognizes such voice or person.
* Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.
* The voices recorded or the persons shown must be properly indentified.
* The evidence sought to be produced through an audio tape or video has to be relevant to the controversy and otherwise admissible.
* Safe custody of the audio tape or video after its preparation till producing before the court must be proved.
* The transcript of the audio tape or video must have been prepared under independent supervision and control.
* The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.
* The source of an audio tape or video becoming available has to be disclosed.
* The date of acquiring the audio tape or video by the person producing it before the court ought to be disclosed by such person.
* An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.
* A formal application has to be filed before the court by the person desiring an audio tape or video to be brought to the record of the case as evidence."
In view of above guidelines, in the case in hand, the piece of evidence i.e. video clips/tapes are not worthy of reliance. The learned trial Court has failed to appreciate this legal aspect of the case and wrongly passed by the impugned judgment by convicting the appellant on the basis of video clips/tapes without any corroborative piece of evidence. It has already been settled by the Hon'ble apex Court that mere on audio or video clips without other
corroborative piece of evidence, conviction cannot be awarded.
11. So far as confession over admission of appellant/convict before the Police Personnel
i.e. PW -10 Muhammad Tariq, ASI, is concerned, the same was objected when he appeared
during trial and claimed that appellant/convict made admission regarding the guilt of offence
in his presence. Articles 38 and 39 of the Qanun- e-Shahadat Order 1984, are quite clear on
the subject and such admission, in view of the above said Articles, are inadmissible. Both the Articles of the Order, 1984, are reproduced as under:
"38. Confession to Police Officer not to be proved---No confession made to Police Officer shall be proved as against a person accused of any offence."
"39. Confession by accused in custody of Police not to be proved against him.- Subject
to Article 40 no confession made by any person whilst he is in custody of Police
Officer, unless it be made in the immediate presence of Magistrate, shall be proved as
against such person."
In the present case, admittedly, the admission of appellant/convict was before Police, but he was not produced before the Judicial Magistrate, concerned, as admittedly, at that time he was in Police custody. The plan reading of the above quoted Articles clearly indicate that confession made by any person while he is in custody of Police officials, shall not be proved against a person/accused of any offence. In this case, the appellant/accused was arrested on 08.12.2020, while the alleged confession was made before Police on 11.12.2020, which shows delay of about 03 days and lost its credibility.
12. Another important aspect of the case is that Muhammad Qaseem PW- 6 and Abdul
Rehman PW -7 made confession before the Judicial Magistrate concerned i.e. PW -8.
Muhammad Qaseem. PW- 6 when appeared in a witness box deposed that the Police officials
detained him for three days and thereafter produced him before the concerned Magistrate (PW -8). He further stated that:
The impression of fear was not removed from the mind of PW -6 Muhammad Qaseem,
so the circumstances of the confession are quite clear that the confession was not made voluntarily. The PW -6 further deposed that no currency was recovered from his house, while
as per Ex.P/10 -B, Rs.5,42,000/ - were recovered from the house of PW -6 Muhammad
Qaseem. The alleged recovery was also made in sheer violation of section 103, Cr.P.C.
Admittedly, the alleged recovery was made in thickly populated area, but none of the inhabitant was made as mushir, particularly as per Ex.P/10 -B, when the main door of the
house was knocked one Muhammad Ewaz, came out, who was inquired about Muhammad Qaseem, then, he called the said Muhammad Qaseem, but surprisingly, he was also not associated as mushir to strengthen the prosecution version.
13. Apart from above, there are material contradictions between the statements of
prosecution witnesses. The PW -1 in his testimony before the Court, deposed that on
06.12.2020, he was present at his shop situated at Liaqat Bazar Quetta, in the meanwhile, Merra Jan came there and told that Abdul Ghaffar is lying unconscious in his room, as he know Abdul Ghaffar, for the last 3/4 years, therefore, he and Meera Jan, rushed towards the room of Abdul Ghaffar and when he checked the pulse of Abdul Ghaffar, the same f ound
stopped, thus, he came out and informed the other people, but when we gone through the statement of PW -3, we found that the same is not supporting the version of PW -1, as he did
not state a single word with regard to presence of PW -1 Muhammad Yaqoob at the place of
occurrence, in his testimony before the Court. Besides this the prosecution also badly failed to associate the person who prepared the CDs, which were taken into possession, Habibullah PW-16 admitted that he prepared the CDs with the help of one computer operator, in Baldia
Plaza. The other PW states that the said USB was prepared in a shop namely Naseeb Photographer, but who prepared the CDs, was not produced during trial. Likewise, the other video clip/tape was downloaded from the CCTV cameras of New Haq Medical Store, here
too, the owner of the said Medical Store was not associated as witness, which dent the
prosecution story.
14. Another important aspect of the case is that PW -3 Mira Jan is the witness, who first
visited the room/office of the deceased where he found him dead. He further deposed that he saw a young boy, but after arrest, the prosecution not conducted identification parade of the appellant/accused through said Mira Jan PW- 3, which also give rise to doubt that why the
Investigating Officer not conducted the identification parade, thus, a presumption could be drawn that the PW -3 not supported the stance of prosecution.
15. After careful reappraisal of entire evidence, as discussed above, we are entertaining
no amount of doubt that the prosecution has failed to bring home guilt of appellant/accused and the prosecution evidence furnished during the trial is full of factual and legal defects. In this case regarding each and every piece of evidence, the doubts are emerging from the mouth of witnesses, and it is settled since centuries that benefit of doubt automatically goes in favour of an accused, even if, a single circumstance create reasonable doubt in a prudent mind regarding guilt of an accused, then too, the accused shall be entitled to such benefit not as a matter of grace and concession, but as a matter of right and such benefit must extended to the accused person(s) by the Courts without any reason. Reliance can be placed on the case titled as "Muhammad Mansha v. The State", 2018 SCMR 772, reproduced herein below:
"Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a
matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).
In view of above discussion, this appeal is accepted, impugned judgment dated 23rd
May 2022, of the learned Additional Sessions Judge -II/Model Criminal Trial Court, is set
aside and appellant Mushtaq Ahmed son of Faiz Muhammad is acquitted of the charge, in case FIR No.208 of 2020, registered with Police Station City, Quetta. The appellant is in custody, he shall be set at liberty, if not required in any other case.
JK/120/Bal. Appeal allowed.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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