PLJ 2018 Cr.C. (Quetta) 509 (DB)
Present : ZAHEER -UD-DIN KAKAR AND SYEDA TAHIRA SAFDAR , JJ.
GHULAM SHABBIR etc. --Appellant
versus
STATE--Respondent
Crl. Appeal Nos. 317 of 2012 & 8 of 2013, decided on 17.7.2017.
Pakistan Penal Code, 1860 (XLV of 1860) --
----Ss. 302 & 34--Conviction and sentence --Accused were not nominated in FIR --Benefit of
doubt --Identification was not corroborated-- Ocular as well as Medical Evidence was not able
to identify assailants --Challenge to --Appellants were not nominated in F.I.R., meaning
thereby that at relevant time none of prosecution witnesses recognized any of culprits --Thus
on arrest of appellants, test of identificat ion was to be made, but it was not done --
Identification parades were not held, nor any efforts were made to identify appellants by eye -
witness --Rather for very first time, he (PW -2) identified Munir Ahmed (one of appellants)
before trial Court, without spe cification of role on his part --This identification was of less
value, thus, need further corroboration by some positive evidence, but missing in instant case -
-Prosecution failed to prove its case against the appellants beyond shadow of doubt. The
evidence on record unable to connect the appellants with commission of the offence. It is by
now well settled law that if there is a single circumstance, which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the acc used, whereas, the
instant case is replete with number of circumstances, which have created serious doubt about
the prosecution story.
[Pp. 518 & 523] A & I
Identification --
----Mere identification of the appellant before the Court by the PW -2 that too w ithout any
specific role unable to meet the requirement, thus, no reliance could be placed on it. [P.
519] B
Medical Evidence--
----Evidentiary value of medical evidence furnished by prosecution is to be assessed on basis
of law as settled that medical evi dence is a type of supporting evidence, which may confirm
ocular account with regard to receipt of injury, nature of injury, kind of weapon used in occurrence, but not able to identify assailants. [P. 519] C
Ocular Account --
----Appreciation of evidence --Contradiction--Appellants cannot be convicted merely on basis
of above mentioned recoveries, which are only corroborative pieces of evidence --Both the
witnesses contradicted each other regarding recovery of the motorcycle, which creates serious
doubt in its veracity. [Pp. 521 & 522] F & G
Pakistan Penal Code, 1860 (XLV of 1860) --
----Ss. 302 & 34--Sentence--Challenge to --Report of FAE --Empties crime --Investigation
officers --Empties remained in the police station for more than eight weeks for examination in
the Laboratory along with a kalashnikov and two pistols, which had allegedly been recovered
at the instance of the appellants --Even no explanation had been offered for not dispatching
the crime weapons to the FAEUK on their recovery, which were sent with a delay of more than one month. The prosecution did not come forward to tender any explanation for the delay in dispatching the crime shells, kalashnikov and pistols for the Expert’s opinion and about their safe custody during the period. This fact seriously undermine the evidentiary
value of the recovered weapons as well as of the empties. Sending of crime empties and the weapons of offence together after a long delay cast a doubt and diminish legal value of the report though in positive terms. [P. 522] H
Qanun- e-Shahadat Order, 1984 (10 of 1984) --
----Art. 40-- Important piece of evidence was disclosure --Evidentiary value of disclosure --
Marginal witness --Determination --It is a settled principle of law that disclosure, while in
custody of Police, is of less va lue under provisions of Qanoon- e-Shahadat Order, 1984 --
Article 40 of Order is with an exception and determine evidentiary value of a disclosure on
part of an accused while in custody. [P. 519] D
Recovery of Crime--
----It was evident that recovery of crime weapons were not in consequence of disclosures,
rather it was effected earlier in time, thus, there was no discovery of fact on basis of
information given, thus, of no legal effect nor could be relied upon-- Appeal accepted.
[P. 520] E
Syed Ayaz Zahoor, Advocate for Appellant (in Crl. Appeal No. 317 of 2012).
Mr. Najam -ud-Din Mengal , Advocate for Appellants (in Crl. Appeal No. 8 of 2013).
Mrs. Noor Jehan Kahoor, Addl. P.G. for State.
Date of hearing: 8 and 31.5.2017.
JUDGMENT
Zaheer -Ud-Din Kakar, J.--Through this common judgment, we intend to dispose of
Criminal Appeals No. 317 of 2012 and 08 of 2013 filed by the appellants (convicts Ghulam
Shabbir, Ejaz Ali and Munir Ahmed), outcome of the judgment dated 13.12.2012 (the
impugned judgme nt), passed by the Sessions Judge, Quetta (the trial Court), whereby they
(appellants) were convicted and sentenced in the terms:
Therefore, the accused persons Ejaz Ali son of Abdul Qadir, Munir Ahmed son of
Muhammad Ishaq and Ghulam Shabbir son of Shah M ir are convicted Under Section
302 (b) Qisas & Diyat Ordinance, (PPC) read with Section 34, PPC as Tazir and
sentenced/awarded RI for life each accused with amount of Rs.300,000/ - (Rupees
three lacs) each accused as compensation to the legal heirs of deceased i.e. Habib
Jalib as provided under Section 544- A, Cr.P.C. In default, they have to further
undergo SI for a period of two (02) years each. Benefit of Section 382- B, Cr.P.C. was
also extended in favour of accused persons.
2. Precisely stated facts of t he case, as per F.I.R No. 151/2010 dated 14.7.2010, under
Sections 302, 34, PPC registered at Satellite Town Police Station, Quetta, on the report of
Malik Khuda Bakhsh were that he (complainant) was at his home, when received information
through phone tha t his younger brother Habib Jalib was injured due to firing while he
(victim) was in his shop situated adjacent to his house. Upon such information, he reached at Civil Hospital and found the dead body of his brother. On query it was informed that at about
7:45 a.m. when Habib Jalib was reading Newspaper at the shop three unknown persons ridding on Yamaha motorcycle arrived at the site, one of them remain seated, while the
remaining two duly armed made firing with kalashnikov and pistol, thus, seriously inj ured
Habib Jalib, who fell down and they (culprits), by making aerial firing, escaped from the place of occurrence. Ejaz Ali son of Abdul Qadir and Amir Hamza son of Rehmatullah were
described to be the persons who witnessed the incident.
3. After registr ation of the F.I.R., investigation was entrusted to SI Ahmed Nawaz Khan
(PW-9), who produced the F.I.R Ex -P/9-A, went to Civil Hospital where Ejaz Hussain
Haideri, SI/SHO prepared Inquest Report Ex -P/9-B, inspected the place of occurrence and
prepared the site plan Ex -P/9-C. He (PW -9) also took into possession blood stained earth, two
empties of kalashnikov and five led from the place of incident, also recorded statement of the
witnesses, and obtained Death Certificate from the Civil Hospital, Quetta. There after, the
investigation was handed over to Ghulam Fareed IP, who proceeded further with the case.
4. Though the case was registered against unknown persons, but during investigation the appellants and Mst. Rehana were booked in the case. Except Mst. Rehana, the three were
arrested and faced trial. On the stated allegations, Charge was framed on 4.2.2011 and read-
over to the appellants (convicts) to which they pleaded not guilty and claimed trial. During
trial, the prosecution examined the following witnes ses, eleven (11) in numbers.
PW-1 Malik Khuda Bakhsh (complainant) deposed that the incident took place on
14.7.2010 and on the same day at about 7:45 a.m. he received a telephonic call that someone murdered his brother Habib Jalib. On receiving such information, he reached
to the house of Habib Jalib where he came to know that Habib Jalib had been taken to
Hospital and when he reached hospital, Habib Jalib had been martyred. There he
came to know that three persons came on motorcycle and two of them made firing at
Habib Jalib, who sustained bullet injuries and died. The culprits, while making firing,
fled away from the scene of occurrence. He stated about presence of his nephew
Hamza at the place of occurrence, with assertion that the culprits also fired on him.
PW-2 Amir Hamza , the named eye -witness deposed that on 14.7.2010 at about 7.45
a.m., when he was opening his shop, saw a young man, standing in front of his shop on cycle from whom he asked the reason, and it was his reply that he was waiting for
some visitor. Thereafter, his uncle Habib Jalib came to his shop and also asked about
that young man. He told him that the young man is waiting for his friend. His uncle
Habib Jalib asked him for newspaper, meanwhile, that young man took out his mobile
and started talking, and then proceeded on his cycle towards Railway Tra ck at western
side. The witness further deposed that after 8 to 10 minutes, three persons came on motorcycle, two of them came towards shop, one was armed with kalashnikov,
whereas the other was armed with pistol, they made 7/8 fires upon his uncle, who fe ll
down and thereafter, the culprits by making firing made their escape good. PW -2
identified accused Munir Ahmed.
PW-3 Mir Hamza, deposed that on 14.7.2010 at about 8/9 a.m. he was making bread
at his Tandoor, heard fire shots and when came out, saw -two m uffled persons making
firing at Rehmatullah Provision Store, one of them was armed with Kalashnikov
while the other was armed with pistol. He further deposed that both the persons seated
on motorcycle with third person and went towards east.
PW-4 Khan Muha mmad deposed that on 14.7.2010 at about 7:45 a.m. he heard fire
shots, whereupon he came out and saw that firing was being made at the shop of
brother of the deceased Habib Jalib by two persons. One was armed with Kalashnikov
and the other was with pistol, both were with muffled faces. Their third companion
was standing with motorcycle at a some distance at Chowk. He further deposed that
the said persons also fired at him and his brother and then fled away towards eastern
side.
PW-5 Dr. Abdul Rasheed Jamali , Medico Legal Officer (MLO) Sandeman
(Provincial Hospital) examined the dead body of the deceased and found the
following injuries on his person:
i. Gunshot entrance wound about ½ x ½ cm, 2cm above the left nipple of chest.
ii. Gunshot entrance wound ½ x ½ cm, left clavicular region.
iii. Gunshot entrance wound ½ x ½ cm, 3 cm medially left nipple of chest.
iv. Gunshot entrance wound ½ x ½ cm, epigastric region,
v. Gunshot slippery wound about 6/x3 cm on chin.
vi. Gunshot entrance wound ½ x ½ cm. 3 cm above the right nipple of chest.
vii. Two gunshot entrance wound ½ x ½ left hypochondrium.
viii. Gunshot entrance wound ½ x ½ cm, mid, lateral aspect of left upper arm.
ix. Gunshot entrance wound ½ x ½ cm right flank.
x. Gunshot exit wound 2x1 cm, mid, medial aspect of left upper arm
xi. Three gunshot exit wound, 2x1, 1x1, 1x1 cm on lower part right side back of the
abdomen.
xii. Two gunshot exit wound 1x1, 1x1, cm on left lumber region.
Probable cause of death: is severe injuries to vital organs of chest and abdominal
cavities, internal and external hemorrhage, shock and death due to gunshot.
He issued MLC Ex- P/5-A.
PW-6 Ghulam Shabbir IP was witness of the seizure memos. Ex -P/6-A and Ex -P/6-
B, whereby a register of Shalimar Hotel and Restaurant and one Y amaha motorcycle
were taken into custody. He was also the witness of the recovery of Kalashnikov
along with five live cartridges from the residential room of the appellant Munir Ahmed and witness of the recovery of one pistol TT along with four rounds Ex -P/6-D
from the possession of accused Ejaz Ahmed. He signed all the four documents as attesting witness, which were prepared on 8.8.2010 and 13.8.2010, respectively.
PW-7 Faiz Ahmed SI signed seizure memos., prepared site inspection memo.,
collected blood st ained mud, two empties from the place of incident, Ex -P/7-A, Ex -
P/7-B and Ex -P/7-C. He was also witness to the disclosure memos. of appellant Munir
Ahmed and Ejaz Ali Ex -P/7-D and Ex -P/7-E and witness to the recovery memo. of
TT pistol Ex -P/7-F recovered f rom the possession of appellant Ghulam Shabbir.
PW-8 Zafar Iqbal SI , a witness of the recovery memo. of two CDs and one Memory
Card of Mobile SIM produced as Ex -P/
8-A.
PW-9 Ahmed Nawaz Khan SI , the first Investigating Officer, produced FIR as Ex -
P/9-A, In quest report as Ex -P/9-B and site plan as Ex -P/9-C.
PW-10 Ghulam Fareed IP , the second Investigating Officer, took into possession
register from Shalimar Hotel, conducted raid at the house of Munir Ahmed, recovered Kalashnikov and five rounds, and also rec overed one TT pistol from the possession of
accused Ejaz Ali, prepared disclosure memos. of the appellants Munir Ahmed and Ejaz Ali, taken into possession motorcycle, arrested appellant Ghulam Shabbir and recovered one TT pistol .30 bore from his possession, recorded statement of the witnesses, sent blood stained articles, arms and ammunition to Forensic Science Laboratory (FSL) and, thereafter, he handed over the case file to SHO Malik Nisar Ahmed, who prepared incomplete challan and produced as Ex -P/10- A.
PW-11 Nasir Sattar SI , produced the report of FSL regarding blood stained articles
as Ex -P/11- A and Fire -arms Examination Report as Ex -P/11- B and incomplete
challan as Ex -P/11- C.
5. On completion of the prosecution’s evidence, the appellants (accused) we re got examined
by the trial Court, as required by Section 342, Cr.P.C. During course, while replying to the questions, the appellants not only denied the commission of the offence, but also denied their involvement in the instant case. They also recorded their statements on oath and produced witnesses in defence. The accused Ghulam Shabbir produced DW -1 Ghulam Raza and DW -3
Hameedullah Dasti, PDSP. The accused persons Ejaz Ali and Munir Ahmed, produced DW -2
Waqar Ahmed, Senior Clerk of this Court and DW -4 Manzoor Ahmed.
In his statement on oath, appellant Ejaz Ali deposed that he had worked with the
deceased as Munshi. On 14.7.2010, at about 7:00 a.m. Habib Jalib was reading newspaper at the shop and he was present with him. He further deposed that, he told the deceased that they should leave for the Court, and for that purpose he went to house to bring the vehicle, meanwhile heard fire shots, thus, ran towards the street, and saw a person making firing with Kalashnikov towards the shop. Two persons armed wi th pistols and they seated on Yamaha motorcycle, thereafter they fled away
towards eastern side. When he reached at the shop, found Habib Jalib in injured condition. The witnesses Amir Hamza son of Rehmatullah and Khan Muhammad after firing reached at the spot. They took the injured to Civil Hospital. Thereafter, he and Amir Hamza got prepared the sketch of accused vide memo. Ex -D/1 and also
appeared before the Judicial Tribunal, High Court of Balochistan as eye -witness and
recorded his statement. On 4.8.2010 at about 9:30 p.m. the police officials tool him to CIA center for identification parade, but there he was handcuffed. He further deposed that when he was produced before the Judicial Magistrate for recording his statement,
he showed the marks of violence, whereupon the Judicial Magistrate called Ghulam
Fareed and directed to shift him to judicial custody, but he was again took to CIA center by the police. From 14.7.2010 till 4.8.2010 he remained present at the house of deceased and the police never raid ed at his house nor recovered anything from him.
Appellant Munir Ahmed is his cousin, who is resident of Goth Baho Khosa, Jecobabad and has also a house near to his house. The wife of deceased namely Rehana is like his sister and mother, against whom a fal se allegation has been leveled.
Appellant Munir Ahmed, deposed that he was resident of Goth Baho Khosa, District Jecobabad and runs a cloth shop there, whereas his brother Manzoor Ahmed also used to sit with him in the shop. On 6.8.2010, his brother was ar rested by the local police
and taken to police station. When he and his uncle went to the office of DPO Jecobabad, the police arrested him, and released his brother, where after, he was tortured.
Appellant Ghulam Shabbir deposed that on 10.8.2010, he and his brother Ghulam
Raza were sitting in their Kariana shop at their village. Mirpur police came and on the pretext of information, they were taken to Mirpur Police Station. After a while they were shifted to Shikarpur from where they were handed over to Que tta police. After
sometime his brother was released, but on false allegations he was involved in the murder case and put him on trial. He denied recovery of pistol or ammunition from him and also having any concern with commission of the offence.
DW-1 Ghul am Raza (brother of appellant Ghulam Shabir) deposed that on
10.8.2010, he along with Ghulam Shabbir and other relatives was present at his shop,
at Goth. When the police of Mirpur Mathelo, arrested them, taken them to Shikarpur and handed over to Quetta police. They were kept in custody for 23 days, and he was released on personal surety, but his brother remained in custody. He deposed that no arm was recovered from his brother, who was falsely implicated in the instant case.
DW-2 Waqar Ahmed (Senior Clerk , District and Sessions Court, Quetta) produced a
number of papers, marked as Ex -D/2 to Ex -D/8, prepared during the course of
investigation.
DW-3 Hameedullah Dasti PDSP , deposed that on 9.9.2010, he gave his legal
opinion in case FIR No. 177/2010, offence under Section 13(d) Arms Ordinance, 1965 and produced the same as Ex -D/3.
DW-4 Manzoor Ahmed , deposed that on 6.8.2010, at about 10:00 o’clock local
police arrested him and his brother Munir Ahmed, at Jecobabad, but later on he was released, while his brother was falsely implicated in the instant case.
6. On conclusion of the trial and hearing the arguments, the trial Court found the appellants guilty of the offence, thus, sentenced them in the terms as reproduced in the preceding paras.
7. The learned counsel for the appellants (convicts) contended that the name of the appellants did not transpire in the F.I.R; that it was a case of circumstantial evidence, which is always considered as a weak type of evidence and is not admissible as per Article 38 o f the Qanoon-
e-Shahadat Order, 1984; that the circumstantial evidence produced by the prosecution is not
worthy of reliance due to the improvements and contradictions; that the requirement of Section 103, Cr.P.C. was not complied with at the time of recove ry of the weapons used in
commission of the offence. The learned counsel further contended that the crime empties were taken into custody from the site on the day of incident, but the same were not sent for chemical nation on the day, rather remained in cu stody of the Investigating Officer till
recovery of the crime weapon. Further the empties, and the crime weapons were sent together for chemical analysis, this state of affairs create doubt, therefore, cannot be relied upon; that during the trial the prose cution has miserably failed to bring on record the evidence which
specifically involve the appellants in commission of the offence, hence, in the circumstances, the convictions are highly unwarranted and liable to be set aside. In support of their contenti ons, they relied upon 2009 SCMR 230 + 2010 SCMR 1009 + 2011 MLD 811 + 2012
SCMR 428 + 2015 P.Cr.L.J 459 Sindh + 2016 YLR 905 Peshawar and 2016 P.Cr.L.J 206 FSC.
8. Conversely, the learned Additional Prosecutor General (APG) opposed the appeal, and stated that the trial Court after taking into consideration the material available on the record, has rightly convicted and sentenced the appellants, which do not call for interference by this Court. She relied on the disclosures made by the appellants resulted i n recovery of the crime
weapons and the report of the Fire Arms Expert in the positive terms, fully corroborated the
case of the prosecution, supported the decision of the trial Court.
9. We have heard the learned counsel for the parties at length and hav e gone through the
record. The prosecution case is based on the following pieces of evidence.
i. Ocular evidence produced by PWs -2, 3 and 4.
ii. Medical Evidence
iii. Disclosure by the appellants Munir Ahmed and Ejaz Ali (Ex -P/7-D and Ex -P/7-E).
iv. Recoveries of the crime weapons i.e. Kalashnikov, pistols, and the empties from the
place of incident, and the motorcycle used in the act. v. Positive report of the Firearms’ Expert.
(i) Ocular Evidence.
10. The complainant was not an eye -witness of the occurrence, rather as contained in F.I.R,
Ejaz Ali son of Abdul Qadir and Amir Hamza son of Rematullah were the persons who
described to witness the incident. As far, Ejaz Ali son of Abdul Qadir was concerned, he was later on booked in the case as one of t he accused, thus faced the trial and was convicted. The
careful analysis of statement of Amir Hamza (PW -2) would reveal that he supported the
prosecution case, mentioned the details of unfortunate incident, but identified only the appellant Munir Ahmed, however unable to assign any specific role to him (Munir Ahmed) in commission of the act. Though, he (PW -2) was nephew of the deceased, but was not proved
to be an interested witness. His statement to the extent of identification of the appellant Munir Ahmed was not corroborated by PW -3 Mir Hamza son of Khan Muhammad, and PW -4 Khan
Muhammad son of Haji Sultan, who were shown to be present near the place of incident and also saw the culprits. These witnesses though supported the prosecution version as they mentioned the details of the incident, but were unable to identify the culprits. They (PW -3
and PW -4) were with the statements that the persons, who made firing upon the shop where
the deceased was present, were with muffled faces and it was the reason they w ere unable to
identify them.
11. In the present case, the appellants were not nominated in the F.I.R., meaning thereby that at relevant time none of the prosecution witnesses recognized any of the culprits. Thus on arrest of the appellants, test of identi fication was to be made, but it was not done.
Identification parades were not held, nor any efforts were made to identify the appellants by the eye -witness Amir Hamza (PW -2). Rather for the very first time, he (PW -2) identified
Munir Ahmed (one of the appe llants) before the trial Court, without specification of the role
on his part. This identification was of less value, thus, need further corroboration by some positive evidence, but missing in the instant case. It was held by the Hon’ble Supreme Court
in case Farman Ali v. The State reported in 1997 SCMR 971 that:
“Holding of identification test become necessary in cases; when names of the culprits are not given in the F.I.R. Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits.”
The Hon’ble Supreme Court further held in case Asghar Ali v. The State , reported in 1992
SCMR 2088 that;
“the identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving the identity of the culprit. “
In view of the principle determined, the mere identification of the appellant Munir Ahmed before the Court by the PW -2 that too without any specific role unable to meet the
requirement, thus, no reliance could be placed on it.
12. (ii) Medical Evidence.
The evidentiary value of the medical evidence furnished by the prosecution is to be assessed on basis of the law as settled that the medical evidence is a type of supporting evidence, which may confirm the ocular account with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence, but not able to identify the assailants. Reference in this context may be made to the cases Muhammad Tasweer v. Hafiz Zulqarnain and t wo
others {PLD 2009 SC 53} + Altaf Hussain v. Fakhr Hussain and another {2008 SCMR
1103} and Mursal Kazmi alias Qamar Shah and another v. The State {2009 SCMR 1410}.
Thus the medical evidence on the record only proved unnatural death of the victim due to t he
injuries sustained through firearms and none else.
13. (iii) Disclosure by appellants Munir Ahmed and Ejaz Ali
In addition to the statement of PW -2, the other important piece of evidence was the
disclosures made by the appellants Munir Ahmed and Ejaz A li on 13.8.2010. PW -7 SI Faiz
Ahmed the marginal witness of the memos. of disclosure produced and marked as Ex -P/7-D
and Ex -P/7-E. It is a settled principle of law that the disclosure, while in custody of Police, is
of less value under the provisions of Qa noon- e-Shahadat Order, 1984. Article 40 of the Order
is with an exception and determine the evidentiary value of a disclosure on part of an accused
while in custody. It reads as under:
“Article 40. How much of information received from accused may be prove d.—
When any fact is deposed to as discovered in consequence of information received,
from a person accused of any offence, in the custody of a police -officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”
But if nothing in consequence of the disclosure is recovered or discovered then the information so received by itself would not be admissible. In this regard, the reference can be
made to the following judgments /case laws:
Confessional statement of accused before police which leads to discovery of no
new fact or circumstance on pointation of accused would have no evidentiary value and such confessional statement before police cannot be used against accused. “The State and others v. Asmatullah and others’ {PLD 2007 Quetta 12}.
Appreciation of evidence. —Extra -judicial confession Principle. Extra -judicial
confession is a very weak type of evidence and no conviction on it can be awarded
without its strong corroboration on the record. ‘Wazir Muhammad and others v. The
State {2005 SCMR 277(a)}.
In the case in hand, on 13th August 2010, the appellants Munir Ahmed and Ejaz Ali were arrested and Kalashnikov and pistol were recovered respectively on pointation and possession. The disclosures were made later in time on the same date. It was evident that the recovery of crime weapons were not in consequence of the disclosures, rather it was effected earlier in time, thus, there was no discovery of fact on basis of the information given, thus, of
no legal effect nor could be relied upon.
14. Furthermore, perusal of the record reveals that on 17.8.2010 (Ex -D/3 and Ex -D/4), at the
request of Investigation Officer, the Sessions Judge, Quetta authorized Judicial Magistrate -II,
Quetta for recording statement of accused Ejaz Ali under Section 164, Cr.P.C. Ex -D/7 shows
that on the same day, the Judicial Magistrate -II, called Ejaz Ali for recording his statement
under Section 164, Cr.P.C. and found that the accused was under fe ar and pressure, who told
him that electric shocks were given to him. The Magistrate also observed marks of torture on his body, thus, the Investigating Officer was directed to shift the accused to judicial custody. This fact further negate the making of disclosure voluntary on part of Ejaz Ali.
15. (iv) Recovery of crime weapons
The prosecution further placed reliance on the recovery of Kalashnikov along with five rounds from the residential room of appellant Munir Ahmed, which were taken into possession vide seizure memo. Ex -P/6-C, recovery of T.T pistol along with four rounds from
the possession of appellant Ejaz Ali vide seizure memo. Ex -P/6-D and recovery of T.T pistol
along with one round from the possession of appellant Ghulam Shabbir vide seizure memo.
Ex-P/7-F. There is no need to discuss the said evidence because we have already disbelieved
the ocular evidence and the disclosures recorded while in custody, therefore, the appellants cannot be convicted merely on the basis of the above mentioned recoveries, which are only corroborative pieces of evidence. Reference in this regard may be made to the case Muhammad Afzal alias Abdullah and others v. The State and others {2009 SCMR 436}, wherein the Hon’ble Supreme Court held as under:
“After taking out f rom consideration the ocular evidence, the evidence of
identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence
because it is well -settled that unless direct of substantive evidence is available
conviction cannot be recorded on the basis of any other type of evidence howsoever,
convincing it may be.”
Similarly in the case Abdul Mateen v. Sahib Khan and others (PLD 2006 Supreme Court
538), at page 543, the following dictum was laid down.
‘It is a settled law that, even if recovery is believed, it is only corroborative. When there is no evidence on record to be relied up on, then there is nothing which can be
corroborated by the recovery as law laid down by this Court in Saifullah ‘s case 1985 SCMR 410. “
Similar view was taken by the Hon’ble Supreme Court of Pakistan in the cases Muhammad Yaqub v. The State (1971 SCMR 756) and
Nek Muhammad and another v. The State (PLD 1995 Supreme Court 516).
16. So far recovery of motorcycle Yamaha 100 CC was concerned, perusal of the statement of PW -6 IP Ghulam Shabbir shows that on 13.8.2010, he along with ASI Fakhr Alam and IP
Ghulam Farid was present in CIA staff office, meanwhile a person Sher Muhammad came, and handed over a motorcycle to the Investigating Officer, which was taken into possession vide seizure memo. Ex -P/6-B. PW -6 in his statement remained unable to disclose the
particulars of Sher Muhammad and his connection with the motorcycle. Even said Sher Muhammad was not produced as witness before the trial Court. On the contrary, PW -10 IP
Ghulam Fareed, the Investigating Officer, was with the statement that on the basis of
disclosure and pointation of the appellant Munir Ahmed, the motorcycle was recovered from a shop situated at Abdul Sattar Road, Quetta, but neither he disclosed the name of the shop or
of the shopkeeper, from where the recovery was effected. Both the w itnesses contradicted
each other regarding recovery of the motorcycle, which creates serious doubt in its veracity. In addition this piece of evidence unable to establish the nexus between the accused and the
recovered motorcycle, and its use in commission of the offence. Therefore, no reliance can be
made on the recovery of the motorcycle.
17. The Investigating Officer also took into possession extract of register of Shalimar Hotel and Restaurant (seizure memo. prepared and produced before the Court as Ex -P/6.A) to
corroborate the acts on part of the appellants Munir Ahmed and Ghulam Shabbir, but failed. It was for the reason that the document was also not proved as required. The owner or the manager of the Hotel was not produced as witness, nor any effor t was made to identify the
appellants as the persons who in fact resided in the hotel on the relevant dates.
18. (v) Positive report of Fire Arms Expert.
The prosecution also placed reliance on the Examination Report of the Fire Arms Expert placed on reco rd as Ex -P/11- B. The record reveals that the two crime empties and five led
were recovered on 14.7.2010, the day of incident, but were not sent to the Fire Arms Examination Unit, Karachi (FAEUK) for analysis, rather remained in the police custody till 20.9.2010. If it be presumed that the said crime empties were in fact available at the spot, and had been rightly recovered by the Investigating Officer were in safe custody. The empties remained in the police station for more than eight weeks as received on 20.9.2010 for examination in the Laboratory along with a kalashnikov and two pistols, which had allegedly been recovered at the instance of the appellants on 13.8.2010. Even no explanation had been offered for not dispatching the crime weapons to the FAEUK on their recovery, which were sent with a delay of more than one month. The prosecution did not come forward to tender any explanation for the delay in dispatching the crime shells, kalashnikov and pistols for the Expert’s opinion and about their safe cust ody during the period. This fact seriously
undermine the evidentiary value of the recovered weapons as well as of the empties. Sending of crime empties and the weapons of offence together after a long delay cast a serious doubt and diminish legal value of the report though in positive terms. Reliance in this behalf is placed on the cases Muhammad Shafi and another v. The State {PLD 1968 Lahore 869},
Mustaqeem v. Nawab Khan {2016 YLR 905], Iqbal Zada v. The State through Additional Advocate General and three others {2014 P.Cr.LJ 1397}, Samandar alias Qurban v. The
State {2017 MLD 539}, Mehmood Ahmed v. The State {2012 YLR 2314} and Ali Shair and
others V. The State {2008 SCMR 707}. As far the pistols were concerned, the report only
stated them to be in workin g condition, but no match with crime empties. It was to be noted
as per seizure memo. Ex -P/7-C no shell of bullets fired from pistols were recovered from the
site, nor taken into custody. Similarly, positive Serologist Report qua blood stained articles as well as Death Certificate of the deceased only prove the unnatural death of the deceased with
firearm on the particular place, but by whom, it never tells the names of the culprit (s).
19. We have considered all the aspects of this case and have come to t his irresistible
conclusion that the prosecution failed to prove its case against the appellants beyond shadow
of doubt. The evidence on record unable to connect the appellants with commission of the offence. It is by now well settled law that if there is a single circumstance, which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances, which have created serious doubt about the prosecution story. In Tariq Pervez v. The State (1995 SCMR
1345), the Hon’ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under: --
“5…..The concept of benefit of doubt to an accused person is deep- rooted in our
country. For giving him benef it of doubt, it is not necessary that there should be many
circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. “
The Hon’ble Supreme Court of Pakistan, while reiterating the same principle in the case Muhammad Akram v. The State (2009 SCMR 230), at page 236, observed as under:
“13…..It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State, 1995 SCMR 1345 that for giving the benefit of doubt, it w as not necessary that there should be many
circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be
entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. “
20. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellants beyond the shadow of doubt, therefore, we accept the Criminal Appeal Nos. 317 of 2012 and 08 of 2013 filed by the appellants Ghulam Shabbir, Ejaz Ali and Munir Ahmed, set aside the conviction and sentence recorded by the Sessions Judge, Quetta vide judgment dated 13.12.2012 and acquit them of the charges by extending
them benefi t of doubt, in case F.I.R No. 151/2010, Satellite Town Police Station, Quetta.
They are in custody, be released forthwith if not required in any other case.
(M.M.R.) Appeal allowedThis 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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