2024 P Cr. LJ 2048
[Balochistan]
Before Muhammad Hashim Khan Kakar C.J and Shaukat Ali Rakhshani, J
MUHAMMAD WAQAS ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 58 and Murder Reference No. 03 of 2023, decided on 25th June,
2024.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Circumstantial evidence not proved--
-Accused was charged that he along with his wife committed murder of the son, daughter -in-
law and grandson of complainant ---Complainant was not the eye -witness and he lodged the
FIR on the basis of an application, wherein he testified that he was informed by two witnesses through cell phone about the murder of his son, daughter -in-law and grandson
committed by accused and his wife---Testimony of second witness did not incriminate the
accused in any manner, whereas first witness also did not utter a single word against him ---
Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt ---Appeal against conviction was allowed, in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S. 164---Qatl -i-amd---Appreciation of
evidence--- Confessional statement of accused ---Scope ---Accused was charged that he along
with his wife committed murder of the son, daughter -in-law and grandson of complainant ---
Record showed that confessional statement of the accused was recorded purportedly on
24.08.2022, i.e., 7th day of his arrest ---Judicial Magistrate testified and affirmed that he
recorded the confessional statement of accused on 24.08.2022--- As per confessional
statement, the accused made a single fire shot from the rifle, which pierced into the neck of the deceased son of complainant, making an exit by hitting daughter -in-law of complainant,
thus according to accused both of the them died due to fireshot wounds, but the medical
evidence did not affirm the story of accused, rather belied him ---Medico -Legal Certificate of
deceased son of complainant showed an entrance wound on the left side of his neck, making an exit on the right side of his neck, but the Medical Officer observed otherwise ---Medical
evidence absolutely negated the death of the female deceased by any firearm rather the
Medico -Legal Certificate clearly showed that she was strangulated ---Accused in his
confessional statement nowhere stated that female deceased was ever strangulated by him,
meaning thereby that he had not come forward with the truth, and as such, it could be
gathered that his confessional statement was not voluntary and truthful, having no consonance
with the other circumstantial evidence ---Circumstances established that the prosecution failed
to prove its case against the accused beyond any shadow of doubt ---Appeal against
conviction was allowed, in circumstances.
(c) Criminal Procedure Code (V of 1898) ---
----S. 164--- Confessional statement of accused ---Scope ---Confession statement must not only
be voluntary, without any duress or coercion, but it must be true, having consonance with the
other circumstantial evidence in order to hold a person guilty of the charge, more
particularly, for a capital punishment.
Manjeet Singh v. The State PLD 2006 SC 30 rel.
(d) Criminal trial ---
----Medical evidence--- Scope ---Medical evidence is always considered to be confirmatory in
nature, which only confirms the locale, nature and kind of weapon, but does not in any manner identify or directly relate the accused with the murder of the deceased person.
Muhammad Mansha v. State 2018 SCMR 772 rel.
(e) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Recovery of crime empties and
weapon of offence ---Inconsequential ---Accused was charged that he along with his wife
committed murder of the son, daughter -in-law and grandson of complainant ---According to
recovery witness, on 17.08.2022, while visiting the crime scene, he secured a crime empty
casing of .303 bore rifle through recovery memo--- Said witness further testified that on
20.08.2022, accused made a disclosure and led the police contingent to the house of the deceased and got recovered a .303 bore rifle with a live cartridge from beneath the blankets, which was secured through the recovery memo ---Undeniably, the crime scene was already
visited and known to the police officials, therefore, pointation of the house of the deceased in consequence of a disclosure was worthless, which in no manner helped the prosecution case -
--Moreover, the said house had already been visited and site plan was prepared, but no crime
weapon was recovered at that time, which fact made the recovery of rifle of 303 bore in
consequence of a disclosure doubtful, whereof no other view could be asserted except that the recovery had been shown ulteriorly in order to strengthen the prosecution case ---In view
of the cloudy recovery, the worth and evidentiary value of positive Forensic Science Laboratory Report got diminished--- Circumstances established that the prosecution failed to
prove its case against the accused beyond any shadow of doubt ---Appeal against conviction
was allowed, in circumstances.
(f) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Delay of 24 days
in sending the crime empties and crime weapon to laboratory---Consequential ---Accused was
charged that he along with his wife committed murder of the son, daughter -in-law and
grandson of complainant ---In the present case, .303 bore rifle being the crime weapon along
with one live cartridge were recovered on 20.08.2022 through recovery memo, but were
received in the office of Forensic Science Laboratory on 13.09.2022 with a delay of 24 days -
--No plausible explanation had been offered, which diminished the entire value of recovery of rifle 303 bore and Forensic Science Laboratory Report ---More particularly, when empty
secured form the crime scene and alleged crime weapon were sent together as in the present case, no explicit reliance could be placed on such tainted and unworthy piece of evidence ---
Circumstances established that the prosecution failed to prove its case against the accused beyond any shadow of doubt ---Appeal against conviction was allowed, in circumstances.
Barrister Zahoor Hassan Jamote for Appellant (in Criminal Jail Appeal No. 58 of
2023).
Habibullah Gul, Additional Prosecutor General ("A.P.G.") for the State (in Criminal
Jail Appeal No. 58 of 2023).
Habibullah Gul, Additional Prosecutor General ("A.P.G.") for the State (in Murder
Reference No. 03 of 2023).
Barrister Zahoor Hassan Jamote for Respondent (in Criminal Jail Appeal No. 03 of
2023).
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .--- Through this common judgment, we aim to
dispose of the captioned Criminal Jail Appeal and Murder Reference brought before us
pursuant to the judgment dated 12th April, 2023 ("impugned judgment") rendered by Additional Sessions Judge, Duki ("Trial Court"), whereby the appellant has been convicted and sentenced to death as 'Tazir' on three counts under section 302 (b) of the Pakistan Penal Code, 1860 ("P.P.C.") arising out of FIR bearing No.103 of 2022 (Ex.P/10- A) dated 16-
17.08.2022 registered with Police Station ("PS"), Duki for commission of offence of Qatl -i-
Amd of deceased Saifullah, his wife Mst. Sadia and their minor son Ehsanullah.
2. Unfurled facts of the case at hand are that on 17.08.2022 complainant Wahid Bux
(PW -1) got lodged the FIR ibid, averring therein that in the midnight of 16th and 17th
August, 2022, he was informed via cell phone by Abdul Habib and Niaz Muhammad that his son Saifullah, daughter -in-law Mst. Sadia and minor grandson Ehsanullah have been
murdered by appellant Muhammad Waqas and his wife, who have fled away towards Quetta. According to complainant, on such information he reached Civil Hospital, Duki from Quetta, where he found dead bodies of his son, daughter -in-law and minor grandson.
3. After conclusion of the investigation, the appellant along with his wife were sent up
to the Trial Court to face the deeds of their crime. During trial, an application under section
265- K of Criminal Procedure Code, 1898 ("Cr.P.C.") was submitted by the wife of appellant
Mst. Kiran, which was allowed and consequently she was acquitted of the charge vide order dated 29.03.2023.
After the denial of the indictment, the prosecution to drive home the charge to the
extent of appellant Muhammad Waqas produced as many as ten (10) witnesses, however, on close of the prosecution side, the appellant was examined under section 342 of Cr.P.C., who neither got recorded his statement on oath nor produced any defence, henceforth, the Trial Court vide impugned judgment dated 12.04.2023 convicted and sentenced the appellant in the terms mentioned in para supra.
4. Heard. Record vetted with the able assistance of learned counsel for the adversial
parties. Indisputably, the occurrence has gone un- witnessed. The entire edifice of the
prosecution case is pillared upon the testimony of two circumstantial witnesses namely Niaz Muhammad (PW -2), Abdul Habib (PW -4), confessional statement of the appellant recorded
under section 164 of Cr.P.C., recovery of 303 bore rifle being the crime weapon, thread of 'Taveez', whereby minor deceased was strangulated, statement of Khair Bibi (PW -7) and last
but not the least, the medical evidence.
5. Soon after the occurrence and registration of FIR (Ex.P/10 -A), Manzoor Ahmed SI
Investigation Officer ("IO") (PW -10) was entrusted with the investigation, who on arrival at
the Civil Hospital, Duki found the dead bodies of Saifullah, Mst. Sadia, minor Ehsanullah.
He also recorded statements of circumstantial witnesses namely Niaz Muhammad (PW- 2),
Abdul Habib (PW -4) and went to the crime scene, wherefrom he secured an empty shell of
rifle through recovery memo. (Ex.P/3- B), following preparation of site plan (Ex.P/10- B).
According to IO (PW -10), complainant Wahid Bux (PW -1) handed over him two blood
stained 'Kameez' of his deceased son Saifullah and daughter -in-law Mst. Sadia, which were
secured through recovery memo. (Ex.P/3 -C). Dr. Sadia Gul (PW -05) on 17.08.2022
examined deceased Mst. Sadia and issued Medico Legal Certificate ("MLC") (Ex.P/5 -A),
whereas Dr. Johar Khan (PW -06) examined deceased Saifullah and minor Ehsanullah on
17.08.2022 and issued their MLCs (Ex.P/6- B) and (Ex.P/6- A) respectively.
Appellant and his wife were arrested on 17.08.2022. Manzoor Ahmed IO (PW -10)
testified that during investigation on 20.08.2022 appellant Muhammad Waqas made a
disclosure (Ex.P/3- D) and disclosed that in the midnight of 16th- 17th August, 2022, he
murdered Saifullah and his sister, whilst they were sleeping with a .303 bore rifle, which he can get recover, henceforth, the appellant got recovered the crime weapon with one live round beneath the blankets kept in a room of the house of deceased, which were secured through recovery memo. (Ex.P/3- F), following preparation of pointation memo. of incident
(Ex.P/3 -E). The appellant failed to produce any valid license of the recovered crime weapon,
thus a case vide FIR No.104 of 2022 was registered under section 13 (e) of the Arms Ordinance, 1965. According to IO (PW -10), on 24.08.2022 the appellant was brought before
Hazrat Bilal Sherani, Judicial Magistrate, Duki ("JM") (PW -09), where he made confessional
statement. Manzoor Ahmed IO (PW- 10) sent the blood stained articles and recovered 303
bore Rifle for analysis to Forensic Science Laboratory, Crime Branch, Quetta ("FSL, Quetta") , whereof positive FSL reports (Ex.P/10- C) and (Ex.P/10- E) were received
respectively.
6. Complainant Wahid Bux (PW -1) is not the eye -witness. He lodged the FIR (Ex.P/10-
A) on the basis of application (Ex.P/1- A), wherein he testified that he was informed by Niaz
Muhammad (PW -2), Abdul Habib (PW -4) through cell phone about the murder of his son,
daughter -in-law and grandson committed by appellant Muhammad Waqas and his wife. Niaz
Muhammad (PW -2) testified that on 17.08.2022 at 7:00 pm appellant along with his wife
came to his house, who were found nervous. According to him, appellant told him that some
of his relative had died, as such. he had to go to Quetta, thus, he paid him some money; whereafter at 9:00 pm, he went to his fields and knocked the door of house of his 'Bazgar', which was bolted from outside, therefore, he called Saifullah two or three times and when he peeped from a hole of the door, he found Saifullah and his wife lying in the courtyard, as such, he called Abdul Habib (PW -4), who also called deceased Saifullah. He further deposed
that he along with Abdul Habib (PW -4) broke t he door and entered into the house, where
they saw Saifullah, his wife and minor son dead, whereof they informed the father of the
deceased Saifullah complainant Wahid Bux (PW- 1). Abdul Habib (PW -4) affirmed the
testimony of Niaz Muhammad (PW- 2) almost in the same words. The testimony of Niaz
Muhammad (PW -2) did not incriminate the appellant in any manner, whereas Abdul Habib
(PW -4) also did not utter a single word against him.
7. The most crucial evidence, whereupon the prosecution rests its case is the
confessional statement of the appellant recorded purportedly on 24.08.2022, which was the 7th day of his arrest. Hazrat Bilal Sherani JM (PW -9) testified and affirmed that he recorded
the confessional statement of appellant on 24.08.2022. He produced forwarding letter (Ex.P/9 -A), confessional statement of appellant under section 164 of Cr.P.C. (Ex.P/9- B),
certificate (Ex.P/9 -C) and sealed envelope as Art.P/1. The confessional statement of the
appellant reveals that his sister was married to deceased Saifullah, but after six (06) years of their marriage, the relation between them became strained, thus deceased Saifullah in lieu of divorce demanded Rs.150,000/ - (One hundred fifty thousand), as such, they collected money
and paid the amount to him, whereafter he divorced his sister; but after a month, deceased Saifullah started meeting with his deceased sister Mst. Sadia and that his sister joined him again, which annoyed him and he planned to take revenge. He further confessed that after
some time, he went to the house of the deceased situated at Shahpur with his wife in order to
kill him, but for one month, he did not get any chance and that in the meanwhile they shifted
to Duki for 'Bazgari' and started ploughing lands of Niaz Muhammad (PW -2), who gave
them a house for living. According to the confession, the appellant seven (07) days back in
the midnight woke up, brought rifle from the room and fired upon deceased Saifullah, piercing into his neck, making an exit wound, hitting his sister Mst. Sadia, who was lying beside him on the cot along with her minor son Ehsanullah, whereby she also succumbed. He
further confessed that with intent to commit murder of his nephew Ehsanullah, he pulled
thread strand of 'Taveez' and put his hand on the mouth of deceased minor, whereby he was
done to death by strangulation. Moreso, it also revealed in the confessional statement that after firing his wife woke up and snubbed him by saying that he had done tyranny, whereafter in the morning he went to Niaz Muhammad (PW- 2) on the pretext of death of one
of his relative and took an amount of fair of wagon and, as such, fled away from Duki.
As per confessional statement, the appellant made a single fire shot from the rifle,
which pierced into the neck of the deceased Saifullah, making an exist by hitting deceased Mst. Sadia, thus according to him both of the them died due to fire of wounds, but the medical evidence does not affirm the story of appellant, rather belies him. The MLC of deceased Saifullah (Ex.P/6 -B) shows an entrance wound on the left side of his neck, making
an exist on his right side of his neck, but the Medical Officer Dr. Sadia Gull (PW- 5)
observed otherwise, which follows in MLC (Ex.P/5- A) of deceased Mst. Sadia as infra;
"On postmortem Examination: -
Marked congestion were seen in the face and upper area of the neck.
Mark: - Multiple light and dark brown dry ligature mark about 1cm in width found on
the neck, mark crossing the fronth of the neck. Subcutanous hemorrages also seen on the Right Side of the neck, discontinuity were present in Ligature marks. Patient was seem to be pregnant of about 8 months, on P/A Examination then confirmed on ultrasound.
Nature: Strangulated by Ligature.
Remarks: Cause of death seem to be asphaxial death. "
8. The medical evidence absolutely denies the death of the deceased Mst. Sadia by any
firearm rather the MLC (Ex.P/5 -A) clearly shows that she was strangulated. The appellant in
his confessional statement no where stated that deceased Mst. Sadia was ever strangulated by him, meaning thereby that he has not come forward with the truth, and as such, it can be gathered with no other view that his confessional statement was not voluntarily and truthful, having no consonance with the other circumstantial evidence. It is now well settled principle of law that the confession statement shall not only be voluntarily, without any duress coercion, but it must be true, having consonance with the other circumstantial evidence in order to hold a person guilty of the charge, more particularly, for a capital punishment. In
this regard, reliance is placed upon the case of "Manjeet Singh v. The State" (PLD 2006 SC
30), the relevant portion whereof is facsimile hereunder;
"However, the real test is that confession must not only be voluntary but it must be true and to ascertain its truthfulness it is necessary to examine and compare the confession with the rest of the prosecution evidence to exclude any possibility or probability of any doubt qua its true character."
Moreso, Khair Bibi (PW -7), who statedly bathed the deceased Mst. Sadia stated that
she saw an entrance bullet wound on the chest with an exist wound on the back side of the her chest. The testimony of Khair Bibi (PW -7) neither co- inside with the confessional
statement of the appellant nor with the medical evidence, making the cause of death of deceased Mst. Sadia cloudy and mysterious. Even otherwise, the medical evidence is always considered to be confirmatory in nature, which only confirms the locale, nature and kind of weapon, but does not in any manner identifies or directly relates the accused with the murder of deceased person. In this regard, we are fortified with the view expounded in the case of "Muhammad Mansha v. State" (2018 SCMR 772), the relevant portion whereof is reproduced hereunder;
"It has been declared by this Court in various judgments that the medical evidence neither pin point the accused nor establish the identity of the accused, and at the most can depict the locale of injury, duration, weapon used etc. and medical evidence can never be considered to be a corroborative piece of evidence and at the most can be considered a supporting evidence only to the extent of specification of seat of injuries, the weapon used, duration, the cause of death etc. reference in this context can be made to the cases of Muhammad Sharif and another v. The State (1997 SCMR 127).
Dildar Hussain v. Muhammad Afzal alias Chala and others (PLD 2004 SC 663). Abdul Majeed v. Mulzim Hussain and others (PLD 2007 SC 637) and Hashim Qasim and another v. The State ( 2017 SCMR 986)."
9. Adverting to the disclosure and recovery of rifle being crime weapon, the testimony
of Safdar Hameed recovery witness (PW- 3) is important to be taken into consideration.
According to him on 17.08.2022, while visiting the crime scene, he secured a crime empty casing of .303 bore rifle through recovery memo. (Ex.P/3- B) and produced it as Art.P/5. He
further testified that on 20.08.2022, appellant Muhammad Waqas made a disclosure and led the police contingent to the house of the deceased and got recovered a .303 bore rifle with a live cartridge beneath the blankets, which was secured through recovery memo. (Ex.P/3 -F)
and the rifle and live cartridge were produced as Art.P/14 and Art.P/15 respectively. Undeniably, the crime scene was already visited and known to the police officials, therefore, pointation of the house of the deceased in consequence of a disclosure is worthless, which in no manner helps the prosecution case. Moreover, the said house had already been visited and site plan (Ex.P/10- B) was prepared, but no crime weapon was recovered at that time, which
fact makes the recovery of rifle of .303 bore in consequence of a disclosure doubtful, whereof no other view can be asserted except that the recovery has been shown ulteriorly in order to strengthen the prosecution case. In view of the cloudy recovery, the positive FSL report (Ex.P/10- E) also diminishes its worth and evidentiary value. So be it, mere recovery of
a crime weapon per se cannot be considered as an incriminating and corroborative piece of evidence unless positively endorsed by the FSL report. In the instant case albeit the prosecution has procured a positive FSL report (Ex.P/10- E) with regard to the .303 bore rifle
recovered at the pointation of the appellant, but such report instead of a help to the prosecution case has offended the dictum expounded by the apex court in the cases of "Mushtaq v. The State" (PLD 2008 SC 1) and "Ali Sher v. The State" (2008 SCMR 707). The .303 bore rifle being the crime weapon along with one live cartridge were recovered on 20.08.2022 through recovery memo. (Ex.P/3 -F), but were received in the office of FSL,
Quetta on 13.09.2022 with a delay of 24 days, whereof no plausible explanation has been offered, diminishing the entire value of recovery of rifle 303 bore and FSL report (Ex.P/10-E), more particularly, when empty secured form the crime scene and alleged crime weapon are sent together as in this case. Henceforth, no explicit reliance can be placed on such tainted and unworthy piece of evidence.
10. The apex court has time and again held that the circumstantial evidence is always not
of a standard and quality, rather it is dangerous to explicitly place reliance upon such evidence and that the circumstantial evidence must be of such a nature, where different
pieces of evidence must make a chain of events, where one end of it touches the dead body
and the other, the neck of accused and if such link is found missing, the whole chain breaks down and no conviction can be recorded on such circumstantial evidence. In this regard, we are guided with the view expounded in the case of "Imran Alias Dullay v. The State" (2015 SCMR 155), "Azeem Khan v. Mujahid Khan" (2016 SCMR 274) and "Hashim Qasim v. The
State" (2017 SCMR 986). For ready reference, para -5 of Imran alias Dullay's case is
facsimile herein under;
"5. By now, it is a consistent view that when any case rests entirely on circumstantial
evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its noose fit in the neck of the accused and the other
end touches the dead body. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge. As was held in the case of Fazal Elahi (ibid) and in view of the changed social norms and standard of ethics of the society, to which the witnesses belong and also the questionable credibility of the investigating agency and its incompetency to professionally investigate such blind crimes by now, the Courts have to exercise more and more cautions before accepting and resting its opinion of being guilty on a circumstantial evidence collected apparently in a dishonest, dubious and rough manner."
[Emphasis added]
11. Upshot of the above discussion is that the prosecution had failed to establish the
indictment beyond the shadow of doubt against the appellant, thus the impugned judgment was held to be unsustainable, requiring to be set at naught in view of the dictum expounded
by the apex court in the cases titled as "Muhammad Mansha v. The State" (2018 SCMR 772) and "Naveed Asghar v. The State" (PLD 2021 SC 600), wherein it was held that 'it is better than ten guilty persons be acquitted rather than one innocent person be convicted'. For ease of reference, the relevant excerpt of Muhammad Mansha's case is 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 better than ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this regard can be made upon the case 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)."
[Emphasis supplied]
12. These are the reasons of our short order dated 14.06.2024, whereby the appeal was
allowed; impugned judgment dated 12th April, 2023 was set -aside and inconsequence
thereto, acquittal of the appellant was recorded and the Murder Reference No.03 of 2023 was answered in negative.
JK/71/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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