2025 P Cr. L J 675
[Balochistan]
Before Muhammad Hashim Khan Kakar C.J and Shaukat Ali Rakhshani, J
SAFAR KHAN ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 479 of 2023 and Criminal Revision Petition No. 19 of 2024, decided on
6th August, 2024.
(a) Penal Code (XLV of 1860) ---
----S. 316---Qatl shibh -i-amd---Appreciation of evidence ---Death due to custodial
torture ---Defence plea not established ---Accused persons were Police Officials and
deceased died in their custody during investigation of a criminal offence ---Trial Court
convicted the accused persons ---Validity ---According to complainant, he brought his son
(deceased) and a relative in the Police Station and handed them over to the appellant, the
then SHO of the said Police Station, but later his son was found dead in the police custody due to severe torture by the then SHO (appellant), Head Moharar and Munshi ---
Defence tried to shake the testimony of complainant, but failed to succeed ---Testimony
of complainant inspired confidence, which by all means sounded truthful ---Complainant
had no reason to falsely implicate the appellant and let go the real culprits ---Other
witness testified in line with the testimony of complainant and affirmed the fact that while he along with the complainant were present outside the police station, they heard the clamor of deceased ---Testimony of said witness also went unshaken, despite lengthy
cross -examination ---Another witness/Santri deposed that on the fateful night on the
direction of appellant, he brought deceased from Hawalaat and handed over his custody to him in the room of DSP, whereafter he went for his duty at the gate, whereas the SHO (appellant) locked the room from inside and that after 20 to 25 minutes, when he came back, he found deceased lying unconscious on the water tank, whereas the appellant and Head Moharar were standing nearby,whereafter Inspector took the deceased to the Hospital ---Gunman testified that on the fateful night, while he was on patrol duty, at
about 1:00 a.m., he was called to the Police Station, whereupon he went to the Police Station, where he found the deceased unconscious, who was taken to the Hospital in a vehicle, where doctors examined him, however, later he succumbed, whereafter he brought the deceased to the Civil Hospital ---Santri and Gunman were cross -examined,
but both of them remained firm and consistent, thus, their testimony went unshaken---Indisputably, the prosecution had proved the presence of the deceased in the custody of the appellant in the Police Station and being incharge, he was responsible for the safety and life of the deceased ---Appellant had also not disputed the fact that the deceased got
injured in the police station, however, he came up with the defence that while scaling the wall in order to escape, the deceased fell down and received the injuries, which culminated into his death---During proceedings under S.22- A, Cr.P.C, a report was
submitted by the appellant himself, wherein he had admitted the custody of the appellant, thus, irresistibly, it had been established that the deceased died in the custody of the appellant ---Nature of the injuries could not in any way be received by the
deceased due to a fall while scaling the wall, thus, the plea of the appellant on the face of it seemed absurd, improbable and unconvincing---As the appellant had taken a specific plea, thus, he was obliged to have had discharged his burden of defence plea, but the appellant had failed to do the same ---Appellant neither reported the matter nor
did what he was obliged to do while discharging his duty, rather tried to cover up the incident by contesting and resisting the fair investigation, which conduct strengthened the stance of the prosecution---Circumstances established that the prosecution had proved its case beyond any shadow of doubt but due to certain extraneous circumstances, sentence awarded under S.316, P.P.C was reduced from 20 years to ten years ---Appeal was
dismissed with said modification in sentence.
2024 SCMR 156; 2022 SCMR 1540 and 2024 MLD 703 ref.
(b) Criminal trial ---
----Circumstantial evidence---Conviction--- 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 end the neck of accused---If such link is found missing, the whole chain breaks down and no conviction can be recorded on such circumstantial evidence.
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 rel.
(c) Penal Code (XLV of 1860) ---
----S. 316---Qatl -shibh -i-amd---Appreciation of evidence---Death due to custodial
torture ---Sentence, reduction in ---Accused persons were Police Officials and deceased
died in their custody during investigation of a criminal offence ---Trial Court convicted
the accused person and sentenced them to suffer imprisonment for 20 years ---Validity ---
Keeping in view the attending circumstances of the case, standard of evidence on record, absence of motive and there being no direct evidence, the sentence awarded to the appellant was harsh, thus, the impugned judgment was modified and the sentence awarded under S.316, P.P.C was reduced from 20 years to ten years ---Appeal was
dismissed with said modification in sentence.
Khalil Ahmed Panezai, Wali Muhammad Barech, Kaleemullah Achakzai, Habib -ur-
Rehman and Muhammad Rashid Ayub for Appellant (in Criminal Appeal No. 479 of 2023).
Habibullah Gul, Additional Prosecutor General ("APG") for the State (in Criminal
Appeal No. 479 of 2023).
Nisar Ahmed Alizai for the Complainant (in Criminal Appeal No. 479 of 2023).
Nisar Ahmed Alizai for Petitioner (in Criminal Revision Petition No. 19 of 2024).
Khalil Ahmed Panezai, Wali Muhammad Barech, Kaleemullah Achakzai, Habib -ur-
Rehman and Muhammad Rashid Ayub for Respondent No. 1 (in Criminal Revision Petition No. 19 of 2024).
Habibullah Gul, Additional Prosecutor General for the State (in Criminal Revision
Petition No. 19 of 2024).
Date of hearing: 25th July, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Through this consolidated judgment, we aim to
dispose of the captioned Criminal Appeal and Crl. Revision Petition brought before us pursuant to the judgment dated 14.10.2023 ("impugned judgment") penned by Sessions Judge Mastung ("Trial Court"), whereby the appellant was convicted under section 316 of Pakistan Penal Code, 1860 ("P.P.C") and sentenced to suffer RI for Twenty (20) years with payment of diyat amount, inclusive of benefit of section 382- B, Cr.P.C, emanating from FIR
bearing No.71 of 2019 (Ex.P/8 -A) registered with Police Station ("PS") City Mastung,
whereas through Criminal Revision Petition No.19 of 2024, petitioner Abdul Samad being father of deceased seeks enhancement of the sentence awarded by Trial Court to respondent No.1 from twenty years to that of death penalty.
2. Unfurled facts of the case are that the complainant Abdul Samad (PW -1) submitted an
application (Ex.P/1- A), which was incorporated in the FIR ibid, averring therein that on
16.07.2017 appellant Safar Khan being Ex- SHO Police Station City, Mastung called him to
bring his son Sohrab Khan alias Babul (deceased) and his relative Shakar Khan as SP called them, whereupon the complainant called both of them, who were detained by the appellant
and subsequently his son Sohrab Khan alias Babul and relative Shakar Khan were tortured,
whereby his son succumbed, whereof complainant Abdul Samad (PW -1) being levies
personal tried to lodge an FIR against the Ghazanfar Shah SP, the appellant and other officers, but in vain however, having no other alternative, the complainant approached Ex-Officio Justice of Peace/ Sessions Judge Mastung ("Ex- Officio JOP"), who vide order dated
05.10.2017 made direction for lodging the FIR against Safar Khan Ex- SHO, P.S City
Mastung and Mr. Izat Aziz Investigation Officer, which matter came up to this Court by means of C.P. No.1182/2017 and this Court vide order dated 05.11.2019 directed to carry out an independent investigation without considering their official status, however, ultimately except the appellant and Izat Aziz rest of the accused were discharged, which attained finality.
3. After registration of FIR (Ex.P/8 -A), Abdul Fatah S.I Investigation Officer ("IO")
(PW -08) was entrusted with the investigation, who brought on the record FIR (Ex.P/8- A) and
submitted incomplete challan (Ex.P/8 -B), whereafter investigation was entrusted to 2nd I.O
Abdul Qayum Changezai IP/DSP who recorded the statements of witnesses under section 161, Cr.P.C, arrested the appellant on 26.02.2020 and produced challan (Ex.P/9- A) and
(Ex.P/9 -B).
4. After denial of indictment by the appellant and co- accused Izat Aziz, the prosecution
to drive home the charge, produced as many as ten (10) witnesses. On closure 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 acquitted Izat Aziz and convicted and sentenced the appellant in the terms mentioned in para supra.
5. Learned counsel for the appellant inter alia contended that there is no eye -witness of
the occurrence and the entire case of the prosecution rests upon the testimony of complainant
Abdul Samad (PW -1), who is father of the deceased, circumstantial witness Haji Allah
Bakhsh (PW -6) and Abdul Basit (PW -7), but there are material contradictions in their
statements, creating doubt in the prosecution case. He strenuously urged that on the same set
of evidence SP Ghazanfar Shah, Head Moharar Attaullah and Munshi Muhammad Akbar were discharged during investigation and through impugned judgment on almost same set of prosecution evidence co -accused Izat Aziz was acquitted of the charge, whereas the appellant
was convicted and sentenced by cherry picking, which has made the impugned judgment a nullity in the eyes of law. He maintained that the prosecution has miserably failed to prove the indictment, thus, the appellant deserves to be acquitted of the charge. He placed reliance on the cases reported as 2024 SCMR 156, 2022 SCMR 1540 and 2024 MLD 703.
On the other hand, learned APG as well as learned counsel for the complainant
vehemently opposed the contention so put forward by the learned counsel for the appellant and contended that the prosecution has proved the case against the appellant to the hilt, leaving no room of doubt. Added further, that the complainant is the father of the deceased, who has no reason to falsely implicate the appellant by substituting him with the real culprits. They maintained that the testimony of prosecution witnesses have corroborated each other, which evidence has rightly been appreciated by the Trial Court, thus, the appeal deserves dismissal.
Learned counsel for the complainant while arguing the Criminal Revision Petition
No.19 of 2024 for enhancement of sentence urged that the deceased was done to death in the custody of the appellant due to torture, which was a cold blooded murder, hence there was no occasion or mitigating circumstance for the Trial Court to have had awarded punishment of twenty years, thus prayed that the sentence be enhanced to that of capital punishment.
6. Heard. Record pondered upon with the able assistance of learned counsel for the
adversarial parties.
7. The entire edifice of the prosecution case is pillared upon the testimonies of father of
deceased Abdul Samad (PW- 1), Haji Allah Bakhsh (PW -6) and Gunman Abdul Basit (PW -7)
coupled with the medical evidence of Dr. Noor Baloch (PW -5), who issued postmortem
report -MLC (Ex.P/5 -A), which affirms the death of deceased caused by various injuries on
his person.
According to complainant Abdul Samad (PW -1), he brought his son Sohrab Khan
alias Babul (deceased) and relative Shakar Khan in the Police Station, City Mastung and
handed over them to the appellant, the then SHO of the said Police Station, but later his son was found dead in the police custody due to severe torture by then SHO (appellant), SP Ghazanfar Shah, Head Moharar Attaullah and Munshi Muhammad Akbar. He testified that at
10:00 p.m he along with one of his relative Ghulam Rasool (PW -2) went to police station in
order to meet his son and relative, but were no allowed. He also stated that while they were
waiting outside, they heard claimurs of his son, whereupon he again tried to contact the appellant, but he hung up his call and that at 11:30 p.m, SP Ghazanfar Shah along with his squad came out of police station, as such, he once gain tried to meet his son, but he was not allowed, therefore, went home, however, in the morning at 7:00 a.m, he was informed one of his relative Aziz Muhammad that his son is injured who has been brought to Civil Hospital Mastung, whereafter he along with rushed to the Hospital, where he found the dead body of his son. Abdul Samad (PW -1) further added that he tried to get lodged the FIR, but remained
unsuccessful, thus, he approached the Ex- Officio JOP, who vide dated 05.10.2017 directed to
lodge the FIR.
8. The defence tried to shake his testimony, but failed to succeed. The testimony of
complainant (PW -1) inspires confidence, which by all means sound truthful. He had no reason
to falsely implicate the appellant and let go the real culprits. Ghulam Rasool (PW -2) testified
in line with the testimony of complainant (PW -1). He affirmed the fact that while he along
with the complainant were present outside the police station, they heard the clamor of deceased. His testimony also went unshaken, despite lengthy cross -examination. Muhammad
Gul (PW -3) testified that on 18.07.2017, while he was passing through the Hospital, he saw a
gathering, whereupon when he went inside and found the dead body of the deceased,
whereafter he informed the Complainant (PW- 1). Haji Allah Bakhsh (PW -6) is also very
important witness, who at the relevant night was serving as Santri (guard) in the Police Station,
Mastung. According to him, on the fateful night on the direction of appellant (SHO Safar Khan), he brought Sohrab Khan alias Babul (deceased) from Hawalaat and handed over his custody to him in the room of DSP, whereafter he went for his duty at the gate, whereas the SHO (appellant) locked the room from inside and that after 20 to 25 minutes, when he came back, he found Sohrab Khan alias Babul (deceased) lying unconscious on the water tank, whereas the appellant and Head Moharar Attaullah were standing nearby, whereafter Inspector Rehmatullah took the deceased to the Hospital. Abdul Basit Gunman (PW -7) testified that on
the fateful night, while he was on patrol duty, at about 1:00 a.m, he was called to the Police Station, whereupon he went to the Police Station, where he found the deceased unconscious, who was taken to the Nawab Ghous Bakhsh Raisani Memorial Hospital, Mastung in the said vehicle, where doctors examined him, however, later he succumbed, whereafter he brought the deceased to the Civil Hospital. Haji Allah Bakhsh Santri (PW -6) and Abdul Basit Gunman
(PW-7) were cross -examined, but both of them remained firm and consistent, thus, their
testimony went unshaken.
9. Indisputably, the prosecution has proved the presence of the deceased in the custody
of the appellant in the Police Station and being incharge, he was responsible for the safety and life of the deceased. The appellant has also not disputed the fact that the deceased got injured in the police station, however, came up with the defence that while scaling the wall in order to make his escape good, the deceased fell down and received the injuries, which culminated into his death. A star witness and relative Shakar Khan, who accompanied the deceased to the police station; locked up and tortured was albeit made witness, but did not testify before the court as he met an accident, resulting into his death. During proceedings under section 22- A of Cr.P.C, a report was submitted by the appellant himself, wherein he
had admitted the custody of the appellant, thus, irresistibly, it has been established that the deceased died in the custody of the appellant.
10. The Medical evidence (Ex.P/5 -A) produced by Dr. Noor Baloch (PW -5), shows the
following injuries on the person of deceased.
"1. Hematoma on the left side vault of skull 5 x 4 cm.
2. Hematoma on the occipital region 6 x 5 cm.
3. Abreeded bruise on the nasal and bridge.
4. Small bruise on the left side forehead.
5. Huge bruise on the right scapular region upto shoulder joint 29 x 20 cm and
extending upto interscapular region.
6. Huge bruise on the left scapular region upto measure 29 x 18 cm.
7. Deep bruises on the both buttock extending upto back of thigh upper margins.
8. Huge bruise on the right shoulder 16 x 20 cm.
9. Bruise on the right anterior of chest red in colour.
10. Bruise on the left shoulder joint anteriorly extend upto chest upper margin 18 x 10 cm.
11. Bruise on the lateral aspect of chest.
12. Bruise on the inner aspect of lower lip.
13. Huge bruise on the left hand dorsal aspect 11 x 11 cm.
14. Huge bruise on the left foot dorsal aspect 12 x 11 cm.
15. Bruise on the left leg lower margin.
CT Scan skull (Brain) report; Reveals "No intracranial bleed, mass or error of infaction ventricle and certicol sula are normal No mid line shift is seen. Brain steam appear normal soft tissue swelling is seen on the scalp left side."
11. The nature of the injuries cannot any way be received by the deceased due to fall
while scaling the wall, thus, the plea of the appellant on the face of it, seems absurd, improbable and unconvincing. As the appellant had taken specific plea, thus, he was obliged to have had discharged his burden of defence plea, but the appellant has failed.
12. We are aware that where the case depends upon circumstantial evidence,
extraordinary care and caution is required, therefore, while re- appraisal of the evidence on
record, we have taken utmost possible precaution so to avoid and rule out any wrong conclusion because there is always fabrication of circumstantial evidence. As held by the apex Court that the circumstantial evidence is always not of a standard and quality, as sometimes it is dangerous to explicitly place reliance upon such evidence. 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 end 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 fortified 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 ease of reference, para- 5 of Imran alias Dullay's case is facsimile herein below;
"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]
13. As the prosecution case entirely rest upon the circumstantial evidence, where none
has directly seen the deceased being tortured. However, the aforesaid the witnesses have
heard the clamors of torcher coming from the lockup where the deceased and his relative
Shakar Khan were detained by the appellant.
14. The prosecution has discharged its primary burden of proving the indictment through
circumstantial evidence discussed hereinabove, whereafter somewhat burden also shifts upon the appellant being SHO, having custody of the deceased, which burden seems not to have been discharged by the appellant being the custodian. Article 122 of QSO of 1984 stipulates that if a particular fact was especially within the knowledge of any person, the burden of proving that fact was upon him. For ease of reference, Article 122 of QSO of 1984 is as infra;
"122. Burden of proving fact especially within knowledge: - When any fact is
especially within the knowledge of any person the burden of proving that fact is upon him"
The Hon'ble Supreme Court, in the case of "Saeed Ahmed v. The State" (2015 SCMR
710), while referring to the case of "Deonandan Mishra v. The State of Bihar" (AIR 1955 SC 801), held that lack of explanation or false explanation can be considered to be an additional link with the chain of circumstances. Relevant portion whereof is reproduced herein below;
"It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the
circumstances point to the appellant as the probable assailant, with reasonable
definiteness and in proximity to the deceased as regards time and situation, and he
offers no explanation, which if accepted, though not proved, would afford a
reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be and an additional link
which completes the chain."
15. The appellant neither reported the matter nor did what was obliged, while discharging
his duty, rather tried to cover up the incident by contesting and resisting the fair
investigation, which conduct strengthens the stance of the prosecution.
16. For what has been discussed, we believe that the prosecution has established the case
beyond any glimpse of doubt, thus, the impugned judgment being based on proper and fair appreciation of evidence does not require to be meddled with.
17. Keeping in view the attending circumstances of the case, standard of evidence on
record, absence of motive and there being no direct evidence, we believe that the sentence awarded to the appellant is harsh, thus, the impugned judgment is modified and the sentence awarded under section 316 P.P.C is reduced from twenty years to that of ten years, whereas the remaining sentence shall remain intact with the premium of section 382 -B, Cr.P.C.
18. As the sentence has been reduced in the above terms, therefore, as a natural corollary,
Criminal Revision Petition No.19 of 2024 for enhancement of sentence stands dismissed.
JK/116/Bal. Sentence reducedThis 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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