2012 YLR 2314
[Balochistan]
Before Mrs. Syeda Tahira Safdar an d Muhammad Noor Meskanzai, JJ
MAHMOOD AHMED ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.81 and Murder Reference No.2 of 2010, decided on 18th June, 2012.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Benefit of doubt ---Incident was
unseen as no one witnessed the occasion ---Even the complainant was not the eye -
witness of the occurrence ---Matter though was reported promptly without any delay, but
without nomination ---Accused for the very f irst time was implicated in the commission
of offence .after four days of occurrence in supplementary statement on the stance of
the complainant ---Such implication was made on information received by the
complainant from some other person, who had not witn essed the occasion nor saw the
accused committing the act ---In absence of direct evidence, the prosecution had to
establish its case on basis of other material i. e. circumstantial evidence, confession,
recovery of crime weapon ---Witness recognized accused in the court being the same
person ---Such identification before the court, was of less value because accused was not
identified by him during course of investigation as required ---Confession in the case
was made by accused with the delay of four days ---Delay in recording of confessional
statement, though was not fatal, but as accused remained under illegal custody for a
period of four days for which no reason was stated, strong presumption was that
accused was kept in custody with mala fide intention and to pressurize .him---Non-
observance of required procedure in recording confessional statement had lessened the
credibility of confession ---Confessional statement was least corroborated by the
accompanying facts ---Confessional statement being retracted one, conviction of accused
could not be based solely on that ---Motive had remained unproved ---Strong link of the
case had been missed by the prosecution ---Disclosure allegedly made by accused before
the Police, was of less evidentiary value ---Variation in the s tatements and observations
made by the Trial Court had created suspicion in alleged recovery of crime weapon ---
Statement of prosecution witness was of no avail to the prosecution as neither he had
seen accused while committing crime nor even in armed posit ion---Accused wax not
identified by the person who either saw him just before the incident, or from whom he
made some transaction in course of commission of the offence, which was a lapse on
part of prosecution ---Five recovered crime empties were sent to F orensic Science
Laboratory after more than 15 days from their recovery ---Recovery of crime weapon
was also not free from reasonable doubt ---In presence of discrepancies, the case as
made up by the prosecution, got less support front the material on record --
Circumstantial evidence was of less help to prosecution because several links were
found missing with no explanation thereto ---Prosecution had failed to make out a case
free from all doubts, benefit of which had to be exercised in favour of accused ---Trial
Court, in circumstances was not justified to convict accused and award hint penalty of
death ---Impugned judgment of the Trial Court was set aside, accused was acquitted and
was released, in circumstances.
Ali Nawaz v. The State 2009 SCMR 736; Abdul Sa ttar v. The State 2005 YLR 908; Nawab
Khan v. The State 2009 PCr.LJ 1062; Nazir Shehzad v. The State 2009 SCMR 1440; 1992
SCMR 572; Najiba v. Ahmed Sultan alias Sattar 2001 SCMR 988; Jaffar Ali v, The State
1998 SCMR 2669; Ali Sher v. The State 2008 SCMR 7 07; Ghulam Akbar v. The State 2008
SCMR 1064; Allah Nawaz v. The State 2009 SCMR 736; Sohail Iqbal v. The State 1993
SCMR 2377; Mst. Sairan alias Saleem v. The State 1970 PLC SC 56; Ali Khan v. The State
1999 SCMR 955; PLD 2004 SC 324; Inayatullah v. The S tate PLD 2007 SC 237; 1997
SCMR 330 and 1989 PCr.LJ 491 ref.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 37 & 38 ---Criminal Procedure Code (V of 1898), S.164 ---Confession, recording
of---Basic principle for recording of confession, was to be volunta ry, without any
inducement and threat, or without any promise ---Confession was an admission of
commission of crime, which could not be ignored ---Confession made without
inducement and free from promise would be very much relevant, and could be relied
upon ---While placing reliance on confession, fact which required to be established was
that the confession so made was voluntary and based on truth --If one of those
ingredients was missing, reliance could not be made thereon ---Section 164, Cr. P. C.
provided th e procedure, which was to be adopted by a Magistrate while recording
confessional statement of an accused ---Confessional statement though retracted, could
be made basis of conviction, but in each case it was to be established that confession
was made volun tarily; and also truthful at first instance; and the contents thereof be
corroborated by the other material and evidence on record, though circumstantial in
nature.
Manjeet Singh v. The State PLD 2006 SC 30 and State v. Minhum PLD 1964 SC 813 rel.
(c) Criminal trial ---
----Circumstantial evidence ---Conviction could be based on circumstantial evidence,
subject to the fact that the chain of events had no break.
(d) Penal Code (XLV of 1860) ---
----S.302(b) --Qatl-e-anrd--Appreciation of evidence ---Medico-legal Certificate and
Chemical Examination Report as a corroborative piece of evidence ---Scope ---Medico -
legal Certificate and the Chemical Examination Report only established the fact of
unnatural death of the deceased; and the stains present on cloth , and articles were of
human blood and nothing more ---Both the said certificate and report, being
corroborative piece of evidence, something more was required to connect those pieces
of evidence with accused in commission of offence ---Examination Report pe rtaining to
crime empties was of much importance, because it was in respect of the crime empties,
taken into custody from the site soon after commission of the crime.
(e) Criminal trial ---
----Motive ---Motive for commission of an offence was not necess ary, but once the same
was set up by the prosecution, that had to be proved, otherwise' it would be quite fatal for
the prosecution case.
Muhammad Aslam Chishti for Appellant.
Syed Ayaz Zahoor for the Complainant.
Abdul Sattar Durrani, Addl: P.G. for the State.
Date of hearing: 22nd December, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Through this judgment, we, intend to dispose of
Criminal Appeal No. 81 of 2010 filed by the convict Mehmood Ahmed son of Muhammad
Dawood, against the judgment d ated 18th March, 2010 of Additional District Judge -I, Quetta,
whereby ,the appellant was convicted for the offence punishable under section 302(b)
Pakistan Penal Code (P. P. C. ),and was awarded death penalty with fine of Rs.1,50,000
(Rupees one lac fifty thousand only), and the Murder Reference No. 02 of 2010, which is
made for confirmation of the sentence. Therefore, to avoid any contradiction, both the appeal
and the reference are decided through this judgment.
2. The appellant Mehmood Ahmed questioned the impugned judgment on grounds that there
was complete failure on the part of the trial Court to appreciate the relevant facts, and the law
applicable in the matter, which resulted in grave miscarriage of justice. Further, the case as
set up by the pros ecution was not established beyond the °reasonable doubt, therefore, benefit
whereof was to be extended in favour of the accused person, but the trial Court failed to
exercise the discretion in his favour, thereby violated the basic principles of natural j ustice.
Furthermore, without prejudice to the plea of innocence the sentence awarded to the appellant
is harsh in nature. The trial Court made an error while ignoring the mitigating circumstances
available on record. The prayer was made to the effect that the conviction order be set aside,
and he be acquitted of the charge.
3. The brief facts appearing from the record are that pursuant to F.I.R. No. 376 of 2008 of
Police Station City Quetta, on 8th December, 2008 at 6 -00 p.m. occurrence of an incident
was reported by one Dr. Masoom son of Abdul Manan with assertion that his brother
Muhammad Khalid seriously injured in result of firing made on him by some unknown
person, at western gate of Jinnah Cloth Market, Quetta. The motive behind the act was
'disclose d as the victim had some dispute, and litigation with his relatives in respect of his
ancestral property. The F.I.K. was lodged on the report on same date at 6 -00 p.m. against
unknown persons. But on 12th December, 2008 through a supplementary statement th e
complainant Dr. Masoom, implicated the appellant Mehmood Kasi, in commission of the
offence. Whereby the complainant referred to his niece Bibi Memona, and other persons
being source of his knowledge. The appellant was booked in the instant case on this
statement, got arrested, investigated, and on submission of challan, tried by the trial Court.
During course the charge was framed on 3rd March, 2009 to the effect: --
"That on 8 -12-2008, deceased namely Khalid son of Abdul Manan was
entering in the Jinna h Cloth Market then you were there with pistol in your hand.
You made firing on deceased when he was trying to save himself then you also
made firing on him from behind. Due to firing made by you bullets hit to the
deceased on various parts of body and bec ame injured. Subsequently deceased
Khalid succumbed to the injuries inflicted by you by means of firing from pistol.
Motive of the incident is the dispute between your family and family of deceased.
You made prior arrangement /plan for commission of offenc e and for that purchased
pistol in order to fulfil that plan. You committed the Qatl -e-Amd of deceased
Khalid, by means of firing and after that escaped from there. Thus you have
committed offence which is punishable under section 302 Q&D within the
cogniz ance of this court"
The appellant pleaded not guilty of the charge and claimed trial. Thereby eleven witnesses
appeared on instance of prosecution to substantiate the charge. While in defence the
appellant/accused opted not to appear as his own witness, nor produced any person as his
witness. The trial Court through judgment dated 18th May, 2010 arrived to the conclusion
that the prosecution remained successful in proving the charge against the appellant/accused,
and thereby sentenced him under section 30 2(b), P.P.C. for the offence of murder of
Muhammad Khalid and awarded him Death penalty as Tazir, with fine of Rs.1,50,000, which
was to be paid to the legal heirs of the deceased. But in case of default, he has to suffer Six
(06) months simple imprisonmen t. The appellant being aggrieved of the sentence preferred
the instant appeal on the ground as mentioned hereinabove. While the trial Court also referred
the judgment for confirmation of the sentence as per requirement of section 374 Criminal
Procedure Cod e (Cr.P.C). In view of the same both the appeal, and the Reference are to be
assessed on basis of the material on record, and to consider the quantum of sentence awarded
to the appellant in circumstances of the case.
4. It was the case of the prosecution that on the day of incident when the victim Muhammad
Khalid was returning to his shop situated at Jinnah Cloth Market, Quetta, and reached near its
western gate at 6 -00 p.m. a person ambushed at the site made firing, thereby seriously injured
Muhammad Kha lid, who was taken to the hospital, but did not survive. The brother of the
victim Dr. Masoom is the complainant, and at initial stage he did not nominate any person,
therefore, initially the F.I:R. was lodged against unknown person. But later in time thro ugh
his supprementary statement, he specifically named the appellant/accused being the real
person, who made firing on his brother Muhammad Khalid (victim). This statement was
made on 12 December 2008 i.e. after lapse of four days. While appearing before t he court .as
prosecution witness No.1 (P.W.1), it was his (Dr. Masoom complainant's) statement that on
relevant day he was present in his clinic at Saleem Complex, when he received a phone call'
from one Parvez, a workman in the shop of the victim, who tol d him that some one had fired
at Khalid, who was taken to hospital in injured condition along with his nephew Maaz. It was
further his statement that he reached at the hospital, where his brother Khalid was under
treatment, and during course the victim suc cumbed to injuries. The complainant (P.W.1)
further stated that during course his relatives told him that son of Dawood namely Mehmood
(the appellant) committed murder of Khalid, and after getting confirmation of the fact he
believed the suspicion so made. It was also his statement that a workman of the victim also
told him that on the day at 3 -00 p.m. the appellant/present Mehmood visited the shop, and
asked for Khalid, in aggressive mode, the workman namely Parvez handed over a visiting
card of the shop t o him. In addition, it was his statement that at said occasion his minor niece
was also present in the shop on occasion of Eid shopping, who was well acquainted with the
appellant/accused. He further stated that since long a dispute and litigation in respe ct of
ancestral property existed between Khalid and his uncles, and it was the basis of strained
relations between them.
5. The mentioned person Parvez (Umer Pervez) who informed the complainant about the
incident, appeared as P.W.2. It was his statement that on 8th December, 2012 near Maghrib
prayers, he was present in the shop of the deceased Khalid, who left the shop on. occasion to
buy shoes for his children. But after 10/15 minutes there was sound of firing, on inquiry from
Sangeen Khan son of the de ceased about the occasion of firing,, who told him that the firing
was made on his (Sangeen Khan's) father. Therefore, as soon as he came out of the shop, he
saw the victim lying in the injured condition, he raised hue and cry, and asked nephew of the
victim namely Maaz to take the deceased to the hospital. Thereafter, informed the incident to
Dr. Masoom on telephone. This witness also narrated about the occasion occurred 2/3 days
earlier to the incident, when the appellant/accused, identified to be present in the court,
visited him (witness) twice or thrice, thereby inquired about the deceased Khalid, whereupon
he (witness) informed him that due to vacations of children, he had no occasion to meet the
deceased Khalid. But at the eve of Eid at 4 -30 p.m. the accused/appellant again visited the
shop; asked for Khalid (deceased), on query the appellant/accused became annoyed, and
asked for the mobile phone number of the victim, thereby, he (witness) handed over the card
of the shop. The witness stated that after 3/4 hours of this meeting the incident occurred.
P.W.2 also disclosed presence of one person namely Maaz in the shop when the incident
occurred.
6. This person namely Muhammad Maaz appeared as P.W.3. It was his statement that at 6 -15
p.m. on 8th Decembe r, 2008 he along with his brother Arsalan visited deceased Khalid at his
shop at Jinnah Cloth Market with his son Sangeen Khan. Whereafter the deceased Khalid left
the shop along with Arsalan, and Sangeen Khan on occasion of buying shoes for both of
them. After 10 to 15 minutes he heard gunfire, first two shots, thereafter, 3/4 shots. It was his
statement that soon after sound of gun's firing Arsalan and Sangeen entered the shop, and told
them that one person made firing on the deceased. He rushed outside t he shop to western side
of the Market, where the deceased Khalid was lying in injured condition. He also deposed to
have seen a person, with long hair having pistol in his hand, leaving hurriedly from the site.
Further, he with the help of other persons sh ifted the injured to hospital, but he did not
survive. P.W.4 Barakat Ali is the Judicial Magistrate, who recorded the confessional
statement of the accused/appellant, which is on record, as Exh.P/4 -B. It was his statement
that on 16th December, 2008 ., ther e was a request on behalf of the Investigating Officer Nasir
Mehmood for recording of confessional statement of the accused. Therefore, after observing
all the legal requirements, he recorded the statement of the accused/appellant, and ordered for
shifting of the accused to judicial custody.
7. The remaining witnesses are official witnesses. P.W.5 Asif Ali, A.S. -I., is witness of
seizure memos Exh -P/5-B and Exh -P/5-C, whereby the blood -stained mud, and empty shells
five in numbers collected from the site, and the blood -stained clothes of the victim were taken
into custody. He is also the witness of memo of site inspection Exh -P/5-A. He signed all the
three documents as attesting witness, which were prepared on Sth December 2008. P.W.6,
Sardar Fazal, Patwar i, recorded his statement to the effect that he prepared scaled map of the
site Exh -P/6-A, on 22nd December, 2008. P.W.7 Abid Hussain, A.S. -I., was witness of
seizure memo Exh -P/ 7 -A, prepared on 17th December, 2008 whereby the copy of F.LR. in
Case No. 2 81/2008 was taken into custody, which was in respect of offence of having in
custody of unlicensed arms. P.W.8, Ali Jan is a businessman, doing . business of sale, and
purchase of motorcycles. It was his statement that on a date, which he did not remember, a
boy visited his shop at 3 -00, with no description of A.M. or P.M., who wanted to sell his
Yamaha Motorcycle, which was purchased by him for a sum of Rs.34,000 (Rupees thirty
Four thousand only). Further, he (witness) paid an amount of Rs.31,000 (Rupees t hirty one
thousand only) to the boy, while the remaining amount of Rs.3000 (Rupees three thousand)
was agreed to be paid, when the transfer letter be handed over to him by the boy after
occasion of Eid. He further stated that he did not issue any receipt f or the said transaction.
The witness refused to recognize the accused, present in the court, being the boy, who sold
his motorcycle to him. The witness was declared hostile on request of District Attorney,
while both the counsel were allowed to cross -exami ne him. This witness produced a receipt
for sale of motorcycle as Exh -13/8-A, wherein the name of the seller is mentioned as
Mehmood Ahmed son of Muhammad Dawood.
8. P.W.9 Noor Ahmed, A S. -I., produced memo prepared on basis of disclosure made by the
appellant/accused on 16th December, 2008 as Exh.P/9 -A. It was his statement that on the said
day he along with DSP City Circle Investigation Ghulam Dastagir, A.S. -I. Muhammad Nasir
Investigating Officer, and H/C Abdul Hameed were present, the accused/ appella nt made
disclosure to the effect that the victim Khalid was cousin of his father, and between them
there existed some dispute pertaining to partition of their ancestral property. Further, as the
deceased maltreated, and called names to his father, due to h is conduct he had feelings for the
deceased. Therefore, on 8th December, 2008, he (appellant) took motorcycle for the purpose
to sell it to Ali Jan. The transaction was finalized at Rs.34,000, whereupon Ali Jan handed
over an amount of Rs.30,500 to him (ac cused), subject to the remaining amount would be
paid after handing over of the transfer letter. Thereafter, he visited the Rehmat Arms dealer,
situated at Circular Road, Quetta, wherein Naseebullah, his relative, was present. From whom
he purchased a Chin a pistol .30 bore along with 25 live cartridges in the sum of Rs.36,000
(Rupees thirty six thousand only). Where after he visited the shop of the victim, and asked for
Khalid, but he was informed about his (victim) non -presence, therefore, he obtained his card,
and contacted the deceased Khalid from a PCO, and asked for his location, who told him to
be in Bazar engaged in shopping. Therefore, he waited for deceased Khalid in front of Jinpah
Cloth Market, when he (Khalid) reached there, he (appellant/ accuse d) pushed the victim,
who started running, whereupon he shot four times on his back, then went towards Qandhari
Bazar by foot, from where in Rickshaw to Station, and made call to his uncle, and described
the incident. Thereafter, again went to Qandhari Baz ar, .and placed the pistol wrapped in a
shopping bag, behind a cabin situated adjacent to Nagshbandia Medical Store. The witness
further stated that on this disclosure, at 2 -30 a.m., the DSP Investigation along with
Investigating Officer, and Abdul Majeed, ' took the appellant/accused reached the site, and on
the pointation made by him (accused), a shopping bag wherein a.pistol .30 bore, with one
spare magazine, having 17 live cartridges wrapped, was got recovered behind the cabin. The
recovered articles wer e taken into custody, further; three live cartridges were in the magazine
of the pistol. Further, the, accused was asked for the licence of the weapon, but he was unable
to produce it with assertion that the had the licence, but at time not in his custody. The
witness produced the memo of disclosure as Exh. P/9 -A, and seizure memo of crime weapon
as Exh. P/9 -B.
9. The Medico -legal Officer Muhammad Anwar appeared as P. W.10, and got recorded his
statement, thereby produced the Medico -legal Certificate Exh. P/10-A. The Investigation
Officer Muhammad Nasir, A.S. -I. appeared as P. W.11, stated about the investigation
conducted by him, further produced the Articles taken into custody. It was his statement that
on 12th December, 2008, the complainant, by way of s ubmitting supplementary statement,
nominated the appellant/accused, being involved in the murder of his brother Khalid.
Whereupon the accused/appellant was arrested in instant case on 12th December, 2008. It
was further his statement that during course of investigation on 16th December, 2008 the
accused/appellant made disclosure about commission of the offence, consequent thereof
recovery of the crime weapon was effected on stance of the accused/appellant. Further,
another F I R . for the offence punishable un der section 13(e) of Arms Ordinance, 1965, was
also registered against the accused/appellant. He further stated that the accused/appellant got
recorded his statement under section 164, Cr.P.C, on same date thereby confessed the crime.
He also produced Exam ination Reports as Exh.P/11 -H and Exh.P/11 -J.
10. On completion of the prosecution's evidence the appellant/accused was got examined by
the trial Court, as per requirement of section 342, Cr.P.C. During course while replying to the
questions the accused/ appellant not only denied the commission of the offence, but also
denied his involvement in instant case. He further denied recording of his confessional
statement by Judicial Magistrate. But in reply to the question No.13 he contended that "the
complainan t of the case is a doctor by profession, with connivance of the police, by
administering drugs obtain confession, and at the time I. was not in .senses due to drugs effect."
But in his defence no evidence was produced, nor he appeared as his own witness.
11. Learned counsel for the appellant argued the matter at length with reference to the
material on record. It was his argument that there was no eye -witness of the occasion
therefore, there was lack of direct evidence in the matter. Rather, the only piec e of evidence
available against the appellant was his confessional statement that too recorded on 16th
December, 2008 with a delay of eight (8) days. He argued the delay so occurred destroyed the
evidentiary value of confession. Therefore, it cannot be rel ied upon , The second submission
of the learned counsel was to the effect that the accused was in custody since 11th December,
2008, but his arrest was shown on 12th December, 2008 by the prosecution, therefore, the
mala fides on its part cannot be ruled o ut, which also created doubt. He further argued that
both the confessional statement, and the disclosure were made on same date, but there was no
explanation to the effect that which of them was made earlier. Because, the exact time, and
date of recording of the both the statements were not specifically described on record. The
learned counsel further argued that the confessional statement was retracted, despite the same
the trial Court completely relied on it and decided the case thereon which was neither legal
nor just. Therefore, in absence of eye -witnesses a retracted confessional statement cannot be
made sole basis for the conviction, rather it was to be corroborated through independent
evidence. It was his further argument that there were several discr epancies noted in process
of recording of the confessional statement, because the safeguards provided under the law
were not observed, during the course, by the Judicial Magistrate which diminish its legal, and
evidentiary value. He further argued that the Judicial Magistrate while appearing before the
court, clearly admitted that he did not provide time for reflection to the accused, nor he got
him satisfied about the fact that he (accused) was subject to torture or otherwise.
12. The learned counsel for the appellant emphasized that there was delay, in making of the
disclosure, effecting of the recovery of crime weapon, and recording of the confessional
statement, created doubt in their credibility. Further, the recovery of crime weapon is a
corroborativ e piece of evidence, but in present case the recovery was effected after midnight,
which creates reasonable suspicion. The learned counsel argued that in view of the fact it
appears that the recovery of the crime weapon was effected after the confessional statement
was already recorded. Therefore, in the circumstances neither the confessional statement, nor
the recovery effected thereon, were of any legal significance. It was also argument of the
learned counsel that the crime empties were taken into custod y from the site on the date of
the incident, but the same , were not sent for chemical examination on the day; rather
remained in custody of the Investigating Officer till recovery .of crime weapon. Further, the
empties, and crime weapon were sent together for chemical analysis. This state of affairs
creates doubt, therefore, cannot be relied upon. The learned counsel further argued that
though a motive was asserted by the complainant behind the commission of the offence, but
there was no evidence to the eff ect, therefore, it remained mere an assertion. The learned
counsel contended that the conviction was granted by the trial Court on the basis of retracted
confession, recovery of crime weapon, positive report of Ballistic Expert, disclosure made by
the appe llant and Medical evidence. It was his argument that in absence of direct evidence,
the circumstantial evidence as enumerated above must be of such a standard, which can
establish the case as made out by the prosecution, without any loopholes. But, contrar y to it
the evidence on record is not of such a standard. The learned counsel pointed out that, the
confessional statement did not get support from the Medico -legal Certificate (MLC), as
contrary to it all, the injuries, recorded therein were from the' fro nt. Further, according to
confessional statement the appellant (accused) sold his motorcycle, and the money so
obtained was consumed in purchasing of crime weapon, but the arms dealer was not
associated during investigation, nor produced. Further, the pers on who purchased the
motorcycle, did not even recognize the appellant in the court. He further proceeded with the
arguments that though the disclosure memo, and memo of recovery of crime weapon were
prepared by the Investigating Officer, but both the docum ents were signed only by the
members of the investigating team, which is in contravention of law. Because, as per legal
requirement the marginal witnesses may not be the members of the investigating team. The
learned counsel while further arguing the matte r was of the view that the age of the accused
person is to be recorded correctly as required by Article 40 of the Qanun -e-Shahadat Order,
'1984. Because, the court has to consider the age of an accused person while convicting him
for the offence, and to de termine the quantum of sentence. But this was not done in present
case, which is an error on part of the trial Court.
13. The learned counsel while formulating his points for consideration contended that the
charge was not proved beyond reasonable doubt. Further, the confessional statement was toy
be excluded ' from consideration, as it was neither proved nor corroborated by the remaining
evidence. Furthermore, the date of arrest of the accused as per statement of P.W.9 was very
material, who disclosed it as 8th December, 2008. In addition the recovery, of crime weapon
was neither proved through reliable, and independent evidence, because, in the given
circumstances the Investigating Officer cannot be treated as a witness of the recovery.
Further, if the r ecovery of crime weapon was effected in between night of 16th and 17th, it
means that confessional statement was not positively permissible, because it concluded that
he was still in police custody after recording of his confession. But, if the recovery wa s
effected in between 15th and 16th, then there arises strong presumption of being tortured for
getting his confessional statement. Learned counsel urged that death penalty cannot be
granted solely on basis of circumstantial evidence to a boy of only of 19 years. The learned
counsel concluded that the accused was under illegal custody for several days, and the
possession of the crime weapon with the accused remained unproved. Further, the chemical
analysis report was of no legal significance, until and unle ss the recovery was established
beyond shadow of doubt.
14. The learned State Counsel in reply fully supported the judgment of the trial Court. He
relied on the medical evidence, the examination report, and the confessional statement. The
learned counsel was of the view that there was sufficient evidence on record to implicate the
applicant with commission of the offence. The learned counsel for the complainant in
addition to the arguments of the State counsel contended that complete reliance can be made
on the confessional statement, which in present case otherwise had not been denied. He
further contended that the disclosure made by the accused can be relied upon, keeping in
view the provisions of Article 40 of the Qanun -e-Shahadat Order, 1984. Because t he
discovery of the crime weapon was effected on the pointation made by the accused
person/present appellant. Further, a positive report of the Firearms Expert, being a
corroborative piece of evidence, and can be relied upon, which was rightly done by the trial
Court. There was no illegality committed by the court below. He relied on:--
Ali Nawaz v. The State 2009 SCMR 736
Abdul Sattar v. The State 2005 YLR Quetta 908, Nawab Khan v. The State
2009 PCr.LJ 1062, Nazir Shehzad v. The State 2009 SCMR 1440, 1992 SCMR 572,
Najiba v. Ahmed Sultan alias Sattar 2001 SCMR 988, Jaffar Ali v. The State and
1998 SCMR 2669.
In reply of the arguments, the learned counsel for the appellant relied on:
Ali Sher v. The State 2008 SCMR 707, Ghulam Akbar v. The State 200 8
SCMR 1064, Allah Nawaz v. The State 2009 SCMR 736, Sohail Iqbal v. The State
1993 SCMR 2377, Mst. Sairan alias Saleem v. The State PLD 1970 SC 56, Ali Khan
v. The State 1999 SCMR 955, PLD 2004 SC 324, Inayatullah v. The State PLD 2007
SC 237, 1997 SCMR 3 30 and 1989 PCr.LJ 491.
The learned counsel for the appellant contended that as the murder reference is before this
court, therefore, the whole case is open, and each and every material on record is to be seen
and consider while making decision thereon i rrespective of the grounds taken in the appeal.
He further argued that the arms dealer neither produced nor associated in the investigation,
nor any action was taken against him. Furthermore, it is requirement of law that the empties
recovered from the sit e be sent, for chemical analysis without any delay, but if there is a
delay, a reasonable doubt arises which cannot be ignored. The learned counsel at last
contended that in case of circumstantial evidence, no link of chain of events must be missing,
but i n present case the circumstantial evidence was not well connected, rather links were
missing, which were overlooked by the trial Court. He requested for acceptance of the appeal
and setting aside of the conviction order. Learned counsel further argued that if the court
arrived to the conclusion and thereby sustained the conviction, then in case the age of the
accused is to be considered for determination of quantum of sentence as required under the
law.
15. From whole set of the evidence the incident was unseen as, no one witnessed the
occasion. Even the complainant was not the eye -witness of the occasion. Though the matter
was reported promptly without any delay, but without nomination. The appellant/accused for
the very fist time was implicated in commis sion of the offence on 12th December, 2008, on
stance of the complainant Dr. Masoom. And this implication was made on information
received by him (complainant) from the some other persons, and his niece Bibi
Mohsina/Masnoona, aged about eight years, descri bed to be present in the shop at the
relevant time, and was described to be familiar with the appellant/accused. The remaining
witnesses P.W.2 and P.W.3 though claimed their presence in the shop reached at the site,
soon after the incident, but they had no t witnessed the occasion nor saw the accused/appellant
committing the act.
16. The appellant Mehmood Ahmed was implicated in murder of Muhammad Khalid, who
died due to firearm injuries. The unnatural death of the victim is established through Medico -
legal Certificate (MLC) Exh -P/10-A, which was produced by P. W.10 Dr. Muhammad
Anwar the Medico -legal Officer (MLO). In the MLC five bullet injuries in the body of the
deceased were noted. Further, recovery of five shells of thirty (30) bore pistol from the si te,
along with blood -stained clothes of the deceased, and the mud collected from `the site stained
with the human blood also affirms the fact that the victim met with unnatural death due to
firearm injuries. But it is not enough rather the act, and the rec overed articles are to he
connected with the appellant to establish him to be the real culprit, involved in commission of
the offence.
17. Therefore, in absence of direct evidence, the prosecution has to establish its case on basis
of other material i.e. circumstantial evidence, confession recovery of crime weapon. The
complainant Dr. Masoom Kasi, is also not an eye -witness of the occasion, rather his source of
information was Pervez (P.W.2), an employee of the deceased, who informed him about the
occurre nce on phone. But, this witness was not familiar with the appellant/accused. He only
stated that one person twice visited the shop, and asked for the deceased. The witness
recognized the appellant/accused in the court being the same person. This identifica tion
before court is of less value because the accused was not got identified by him during course
of investigation as required. The complainant after four days of the occurrence on 12th
December, 2008 nominated the appellant being the real culprit on basi s of some information
collected by him. But he only disclosed the name of his niece Memona/Mohsina (name not
clearly noted in the case file), aged about 8 years, who was described to be present in the
shop at the time of incident, when the appellant visite d, and asked for the deceased. The
complainant also referred to some other persons, who told him that his brother was killed by
son of his cousin Dawood Kasi namely Mehmood Kasi. But he failed to disclose the names
of these persons, who were source of his knowledge, nor these persons appeared in course of
investigation or during trial, But on both the occasions the complainant described the motive
behind the act as existence of a dispute between the deceased, and his relatives in respect of
partition of the ir ancestral property. In his supplementary statement he specifically described
litigation in respect of partition of property between the deceased and one Dawood Kasi, the
father of the 'appellant. Further presence of one Maaz was also asserted, who appea red as
P.W.3 before the court. But he had also not witnessed the occasion. Rather according to him
his brother Arsalan, and son of the deceased namely Sangeen Khan entered the shop, and told
him that one person made firing on his father. This witness also stated that he saw one person
with long hair having pistol in his hand escaping from the site. But contrary to the statement
of P.W.3, P.W.2 did not mention presence of Arsalan rather he only referred to Sangeen
Khan, minor son of the deceased. Both these witnesses also not referred presence of minor
girl in the shop at relevant time.
18. But before evaluating the circumstantial evidence, the confessional statement, and the
disclosure made by the appellant is to be considered, and assessed because the who le case of
the prosecution rests on them. According to the material on record the appellant was arrested
on basis of the supplementary statement of the complainant made on 12th December, 2008. It
further appears that during course of investigation the appe llant allegedly confessed thereby
recorded his statement before the Judicial Magistrate Barakat Ali, (P.W.4) on 16th December,
2008. It was also the case of the prosecution that appellant/accused also made disclosure
about commission of the offence on 16th December, 2008 at 2 -20 a.m., and in consequence
thereof the recovery of. crime weapon was effected on the same date. The confessional
statement of the appellant is Exh.P/4 -B. while the disclosure memo is placed on record as
Exh.P/9 -A. One of the witnesses of this disclosure memo Noor Ahmed appeared as P. W .9,
and got recorded his statement. According to the contents of Exh.P/9 -A the appellant/accused
disclosed that due to presence of dispute in respect of their ancestral property, the deceased
Khalid disg raced his father, which created adverse feeling in his (accused) heart, therefore, he
decided to take revenge from him. In wake thereof he sold his motorcycle on 8th December,
2008 at showroom to one Ali Jan in consideration of Rs.34,000 who paidhim an amo unt of
Rs.30,500, while undertook to pay the remaining amount when the transfer letter would be
provided. Further, after receiving the money, he visited Rehmatullah Arms situated at
Circular Road, thereby bought a pistol .30 bore, China made, in considerat ion of Rs.25,000,
further paid an amount of Rs.4000 to Naseebullah for preparation of Arms licence. He also
purchased 25 live cartridges in consideration of Rs.11,00 Thereafter, he went to Jinnah Cloth
Market, visited the shop of the deceased, who was not present, he (accused) obtained the
visiting card of deceased Khalid, thereby contacted him on his mobile phone through PCO,
and thereafter, kept waiting for him at Jinnah Cloth Market. But on his (Khalid's) arrival he
pushed him (deceased) and thereby made four fires on his body. After commission of the act
proceeded towards Qandhari Bazar by foot, and thereafter on rickshaw went to station, from
where he talked to his father, and told him about the incident. The remaining disclosure was
to the effect that he placed the pistol wrapped in a shopping bag behind the cabin situated at
Qandhari Bazar adjacent to Naqshbandia Medical Store. The prosecution not only asserted
making of disclosure, but also asserted that on its basis recovery of pistol was effected at 2-30
a.m. on the same date, at pointation made by the appellant/accused. The confessional
statement was in addition to the disclosure. The contents of the confessional statement Exh -
P/4-B are identical to that of disclosure Exh -P/9-A. Both of them were ma de on same date i.e.
16th December, 2008 in addition to recovery of the crime weapon.
19. The appellant completely denied making of disclosure, and recovery of the crime weapon
on his stance. It is apparent from his reply to question No. 13 of the examin ation made under
section 342, Cr.P.C. But, to the question No. 5, relating to confessional statement, he stated
that "I had made no confessional statement, while as the complainant of the case is doctor by
profession, who in connivance with police by admin istering drugs, obtained confession and at
that time I was not in senses due to effect of drugs." In view of his reply the appellant
retracted from the confessional statement to certain extent. The evidentiary value of such a
statement is to be considered where after, reliance can be made thereon.
20. The basic principle for recording of a confession is to be voluntary, in addition be
recorded without any inducement and threat, or without any promise. A confession is an
admission of commission of crime, w hich cannot be ignored. Article 37 of Qanun -e-Shahadat
Qrder, 1984, is relevant which describes the instances, in presence whereof a confession
deemed to be irrelevant in criminal proceedings:
"Article 37. Confession caused by inducement, threat or promi ses, when
irrelevant in criminal proceedings. A confession made by an accused person is
irrelevant in a criminal proceedings, if a making of the confession appears to the
Court to have been caused by any inducement, threat or promise having reference to
the charge against the accused person, proceeding from a person in authority and
sufficient, in the opinion of the Court, to give the accused person grounds which
would appear to him reasonable for supposing that by making it he would gain any
advantage or a void any evil of a temporal nature in reference to the proceedings
against him. "
In view of this provision the confession made without inducement, and free from promise
shall be very much relevant, and can be relied upon in a criminal proceeding. But wh ile
placing reliance this fact is required to be established that the confession so made was
voluntary, and based on truth. If one of these ingredients is missing, reliance can not be made
thereon. Section 164, Cr.P.C. provide the procedure, which is to b e adopted by a Magistrate,
while recording the confessional statement of an accused person. This section also
emphasized on ascertaining voluntarily making of the confession Hon'ble Supreme Court in
Judgment made in Criminal Petition titled as Manjeet Sing h v. The State, reported in PLD
2006 SC 30, provided a complete guideline for assessing validity of a confession and
awarding conviction on basis of a retracted confession. It was held by their lordship that:
"The Court should be very careful in ascertai ning the true character of the
confession for conviction and must consider the reasons given for retraction of the
confession to find out the truth in such reason before making use of the confession for
conviction."
"This is settled law that a retracted confession either judicial or extra -judicial,
if is found truthful and confidence -inspiring and also qualifies the test of
voluntariness, can be used for conviction without looking for any other sort of
corroboration."
It was further held that: --
"Ther e is no cavil to the general rule that it is not prudent to base the
conviction in a criminal case only on the strength of retracted confession without
independent corroboration in necessary particulars and the Court is under obligation
to inquire into all the material points and surrounding circumstances to satisfy itself
regarding the truthfulness and voluntaries of the confession but it is not an inflexible
rule that retracted confession cannot be made basis of conviction without independent
corroboratio n rather the rule of corroboration ,is a rule of abundant caution which is
insisted only to exclude any possibility of doubt qua the guilt of a person. The law is
that a retracted confession can be legally taken into consideration, against the maker,
if the confession is found true and voluntary and can also be used as sole evidence for
conviction without any corroboration if the Court is satisfied about its voluntary
character and truthfulness."
Their lordship during course placed reliance on a judgment made in case State v. Minhum
PLD 1964 SC 813, whereby it was held:
"Retracted confessions, whether judicial or extra judicial, could legally be
taken into consideration against the maker of those confessions himself and if the
confessions were found to b e true and voluntary, then there was no need at all to look
for further corroboration. As against the maker himself his confession, judicial or
extra -judicial, whether retracted or not retracted, can in law validly form the sole basis
of his, conviction, i f the Court is satisfied and believes that it' was true and voluntary
and .was not obtained by torture or coercion or inducement. The question, however, as
to whether in the facts and circumstances of a given case the Court should act upon
such a confessio n alone is an entirely different question, which relates to the weight
and evidentiary value of the confession and not to its admissibility in law.
Unless a retracted confession is corroborated in material parti culars it is not
prudent to base a convict ion in a criminal case on its strength alone. It is the duty of
the Court that is called upon to act upon a retracted confession to enquire into all the
material points and surrounding circumstances and satisfy itself fully that the
confession cannot but b e true."
Keeping in view the verdict of the Hon'ble Supreme Court, and the guideline provided therein
the confessional statement in the instant case is required to be valued and assessed being a
retracted one. There is no evidence except mere assertions that the appellant/accused was
under the trance of psychotropic drugs, and confession was obtained under influence
thereon. Though it is a mere assertion, but apart from it to the satisfaction of court, it is to be
ascertained that the confession so made w as voluntarily, and based on truth, to exclude any
possibility of doubt in respect of involvement of the appellant in commission of the offence.
Therefore, the related facts are to be considered, and the material on record is to be assessed
in relation to the facts described in the confession.
21. The learned counsel for the appellant during , course of arguments initially emphasized
that there is delay of several days in recording of the confessional statement, which
completely destroyed its evidentiary v alue. It is also argued that on the basis of material on
record, there is doubt that whether the confessional statement was made earlier, or the
disclosure was made earlier in time, because both the confession and disclosure were alleged
to be made on 16th December, 2008. The learned counsel contended with force that if the
disclosure is believed to be made earlier in time at 2 -30 a.m. and confession in next morning,
this fact creates doubt in voluntariness of the confession. Because, in such like situation the
appellant must be under tremendous pressure, which cannot be ignored. He further pointed
out that the Judicial Magistrate while recording the confession did not give time to the
appellant for reflection, in sheer violation of law, which makes all the proceedings of no legal
effect,
22. From the material on record it is an admitted position that the confession was made with
the delay of four days, as the date of arrest was shown as 12th December, 2008 by the
prosecution, while the confession was made on 16th of the F month. But this fact had come
on record that the appellant/accused was in custody since 8th December, 2008, the day of
incident, being admitted by P.W.9 Noor Muhammad, a witness of disclosure, and recovery of
crime weapon. Though the delay in recording of confessional statement is not fatal in all
cases. But, in view of the stated facts the appellant was under illegal custody for a period of
four days, for which no reason was assigned. Therefore, there is a strong presumption that the
appel lant/ accused was kept in custody with mala fides, and to pressurize him. This
presumption cannot be overlooked. The Judicial Magistrate, P.W.4, who recorded the
confessional statement, though stated that he fulfilled all the legal requirements before
recording of the statement. But, during course of cross -examination he admitted that he did
not physically examine the accused to get himself confirm, about the fact of maltreatment or
torture to the accused person, nor recorded the same. Further admitted that he had not
recorded the fact that time for reflection was given to the accused before recording of the
confession. Both the acts established non -observance of the required procedure, which lessen
the credibility of the statement so made.
23. Though in a bsence of eye -witnesses, the confessional statement is of much worth in
present case but with above observations. Therefore, being retracted one the conviction
cannot be based solely on it; rather it requires corroboration from the material on record.
Ther efore, deep appreciation of the material is to be made with contents of the confessional
statement, so that the truthfulness can be assessed and a decision be arrived thereby. The first
part of the confessional statement contained a description of a disput e serious in nature
existed between the families of the accused/appellant and the deceased in respect of partition
of their ancestral property, from which they (appellant and his family) were deprived, being
the motive. The complainant also made statement to the effect, whereby the motive was
specifically alleged. Despite specific allegation there was failure on part of the prosecution.
Because, neither any material to the effect was collected during investigation, nor produced
before the court during trial . Even the details of the cases pending between .the two were not
disclosed, nor any witness to the effect was enlisted or produced before the court. Above all,'
the complainant contrary to his own statement and written report, during course of cross -
exami nation admitted that the case which was described to be pending before High Court of
Balochistan, the father of the appellant namely Dawood was not party to it. But he
(complainant) further admitted existence of dispute, and pending of cases between the
deceased Khalid, and one Baqi Agha pertaining to property; and in connection thereof firing
was made by Baqi Agha, whereby their brother Tariq sustained injuries, as five bullets hit
him.' Further, admitted that said Baqi Agha, and others were acquitted of t he charge from the
criminal case, but still the dispute between them remained unsettled. It was further an
admission on behalf of the complainant that litigation was pending between deceased Khalid,
Mullah Sher Muhammad, and Char Gul, which till date were not settled. The complainant,
who is the basic witness of the motive, made clear admission that there existed no litigation
between the appellant or his father, and the deceased Khalid, destroy his own case. The
prosecution even not tried to produce any ev idence to the effect, therefore, the motive
described remained unproved.
24. The second portion of the confessional 'statement related to the preparation of the crime.
It was described therein that the appellant/accused after repairing his YAMAHA motorcy cle,
sold it to some showroom at the eve of Eid in consideration of Rs.34,000, while he received
an amount of Rs.30,500 with undertaking that the remaining amount would be paid to him on
providing of its transfer letter. Where after, at 4 -30 p.m. he visite d Rehmat Arms, from where
he purchased a TT pistol in consideration of Rs.25,000, paid an amount of Rs.4000 for
getting the licence prepared, with further purchase of 25 live cartridges for Rs.1100. This part
of the confession though specifically asserted by the prosecution, while one of the persons, to
whom the motorcycle was allegedly sold, was produced as P.W.8. Ali Jan. This witness
tendered a receipt about sale of the motorcycle as Exh -P/8-A. This witness was declared
hostile, because he refused to ide ntify the appellant/accused in the court. But he (witness)
though admitte d'Exh-P/8-A, being the receipt issued by him, but refused to identify the
accused being the boy, who visited his shop for the purpose to sale out his motorcycle. From
the contents of the receipt it is clear that _ it is a receipt which is to be issued by the Bargain
Center on selling of a motorcycle to a buyer, not by a seller, in its .own favour. EN p the
signatures present at the column the seller did not tally with the signatures of the appellant
obtained by the trial Court on reply of the charge, and on his replies to the questions' of the
court during course of examination. The prosecution did not even try to get examined the
signatures by an Expert to get confirmed that the signat ures present on receipt intact as of the
appellant/accused. Furthermore, P.W.8 was a material witness, because the remaining acts of
the appellant/accused based on this act being the initial one. Despite the same during course
of investigation the appellan t/accused was not got identified by this witness, as no
identification parade was held for the purpose. Further the Investigating Officer did not take
into custody the motorcycle so sold, nor any evidence was collected that whether the
appellant in fact ow ned the motorcycle, even the documents were not taken into custody. Nor
the registration number was got confirmed from 'the concerned Department or on whose
name it existed. The prosecution is completely silent to this effect. A strong link of the case
had been missed by the prosecution.
25. The second corroborative evidence of this part -of the confession was the alleged Arms
dealer's statement, .from whom the appellant purchased the TT pistol (the crime weapon),and
the bullets. The appellant disclosed t he name of the shop as Rehmat Arms, and , the person
dealing therein was named as Naseebuliah. But this person nowhere appeared, neither in the
calendar of witnesses, nor associated in the investigation. There was an admission, to the
effect, on the part of the Investigating Officer, while appearing before the Court, with further
admission that no action was taken against the person as required under the law, even after
recovery of the crime weapon. This aspect of the case - also remained unproved.
26. The remaining parts of the confessional statement described the mode of commission of
the act. It was stated that the (appellant/accused) contacted Khalid on phone, thereafter; he
again came to Jinnah Cloth Market, and started waiting for Khalid, while sittin g on a
pavement of a shop. Further, stated that as soon as the deceased passed through him, he 'tried
to stop him, but the deceased removed his hand, due to which a fire was made, whereupon
Khalid started running, where upon he started making firing, and m ade four shots on
his back, due to the same the deceased fell down. Where upon he proceeded towards Jinnah
Road, then towards Mezan Bank. This part of the confessional statement can only be
corroborated from the medical evidence, because there was no evide nce whereby the
presence of accused was noted by any person, or any one witnessed him making firing. The
Medico -legal Certificate Exh. P/ 10 -A noted five bullet entrance wounds on body of the
deceased, with two exit wounds on back of the chest. From this n ote it can be assessed that
remaining three bullets were remained in the body. But to this extent the MLC is silent, the
facts as narrated in confessional statement get less support from the medical evidence.
Because the entrance wounds are on chest, and e xit on the backside, while the appellant
asserted to hit the deceased on his back.
27. Further, the confessional statement with description of mode of the commission of act
comes to an end. But it is observed that the facts of concealment of the crime we apon,
making of disclosure before the police, and recovery of the crime weapon on his own stance
did not find place in the confession. The non -describing of remaining events created
suspicion on voluntary nature of the confession. Because, it was case of t he prosecution that
the disclosure, and the recovery were made earlier in time, which followed by recording of
the confessional statement before the Judicial Magistrate.
28. Apart from the confessional statement, the other important piece of evidence is the
disclosure made by the appellant/accused Exh -P/9-A, on 16th December, 2008. P.W.9 Noor
Ahmed, is the marginal witness of the memo of disclosure Exh.P/9 -A, he was also witness to
the recovery of TT pistol on poinatation made by the accused/appellant, an d preparation of
seizure memo Exh.P/9 -B. The evidentiary value of these documents are to be seen. Article 38
of the Qanun -e-Shandat Order, 1984, provided that no confession made to a police officer
shall be proved as against the person accused of any offen ce. In view of this legal
proposition, the disclosure allegedly made by the appellant before the police is of less
evidentiary value. But an exception is provided in Article 40 of the Order, which can help the
case of the prosecution. This Article reads as under: --
"Article 40. How much of information received from accused may be proved. -When any
fact is desposed 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 suc h information,
whether it amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.
In view of this legal proposition, the only portion of a disclosure/confession made to police
will be admissible in evidence, o n basis of which some new fact has been discovered. In
present case on basis of this disclosure recovery of crime weapon was alleged to have been
effected. Therefore; the burden was on the prosecution to establish the recovery of the crime
weapon free from all doubts. The two witnesses P.W.9 Noor Ahmed, A.S. -I., and the
Investigating Officer P.W.11. Muhammad Nasir pertain to the recovery of the crime weapon
on basis of disclosure so made, therefore, were of much importance.
Both the witnesses made stateme nts to the effect that on making of disclosure, the
appellant/accused along with DSP Investigation, Investigating Officer, and witness Abdul
Hameed, proceeded whereby the accused identified the place, and on his pointation so made
at 2-30 a.m. recovery was effected. The accused himself produced the crime weapon hidden
behind a cabin situated at Qandhari Bazzar, wrapped in a shopping bag. Further from the
shopping bag, so produced, contained a .30 (thirty) bore pistol along with a spare magazine
having 17 li ve cartridges therein. While on , unloading the pistol three live cartridges were
recovered from. its magazine. As far as licence is concerned, it was their statement that the
accused though asserted having licence thereof but showed non -presence of it at t he occasion.
Though statements of both the witnesses were identical to the effect, but during course of
cross -examination P. W.11 Investigating Officer stated that the statement 'of the person to
whom the accused rented out the cabin, was recorded by him, with further assertion that he
did not carry out any investigation about the ownership of the cabin. This piece of evidence
worths nothing, because it did not bear any effect on merits of the case. Though the recovery
of the crime weapon along with live ca rtridges on the pointation made by accused was
asserted, but this recovery becomes doubtful due to certain observations recorded by the trial
Court. It was observed by the trial Court, during course of recording statement of P.W.9 and
exhibiting the articl es, ' that in spare magazine of the pistol, eight cartridges were already
present and there was no place for the 9th one. This observation controvert the statement of
P.W.9 to the effect, who while describing the articles so recovered stated that a spare
magazine was found in the sopping bag, which contained seventeen (17) live cartridges. In
addition P.W.9 while replying to a suggestion stated that a magazine of TT pistol had
capacity of eight to ten cartridges, which was contrary to his own statement. But the
Investigating Officer on the other hand was unable to tell the capacity of a magazine of TT
pistol. Which showed not only his incompetency, rather mala fides on his part. Though in
seizure memo the assertion of existence of licence of recovered pistol in name of
accused/appellant was noted, with fact of non -production. But contrary to it, the confessional
statement contained an assertion that the appellant/accused paid an amount of Rs.4000 to the
arms dealer for getting prepared a licence of the weapon purchased by him. The variation in
the statements and the observation made by the trial Court created suspicion in alleged
recovery of the crime weapon.
29. Keeping in view the above mentioned facts, the confessional statement is least
corroborated by t he accompanying facts. The remaining material on record, which is
circumstantial in nature, needs consideration too. Because conviction can be based on
circumstantial evidence, subject to the fact that the chain of events have no break. The case of
the pro secution describes the events started from existence of dispute between the deceased,
and father of the accused about partition of their ancestral property being of same family, the
enmity and emotions of revenge due to conduct of victim, selling of motorc ycle, purchasing
of pistol, commission of act, and effecting recovery of crime weapon, and ended at making of
judicial confession. The sequence in which the event was described had to be established by
the prosecution without any link being missed.
The i nitial fact which was the starting point of the act i.e. existence of enmity due to dispute
in respect of partition of ancestral property and litigation pending thereon, remained
unproved. As discussed herein above, even the complainant failed to support h is own
assertion.
30. The second event was selling of a motorcycle, and purchasing of the crime weapon. In
same respect two persons came in the picture, one to whom the motorcycle was sold and the
other from whom the crime weapon was purchased. Both the persons were of much
importance, and their evidence was of great significance. But only one of them was produced
as P.W.8 Ali Jan. Though he admitted purchase of a motorcycle on the date, but refused to
identify the appellant, being the boy, who sold out h is motorcycle to him. The witness was
declared hostile but it does not serve the purpose. Because, during course of investigation the
appellant was neither got identified by this witness as required by holding an identification
parade. Neither the motorcyc le sold to him or the title papers of it were taken into custody,
nor any investigation was made to ascertain the ownership of the motorcycle. As far as fact of
purchasing of pistol is concerned the Arms dealer namely Naseebullah was never associated
in the investigation, no record of the alleged sale was taken into custody, nor even any legal
action about selling of unlicensed pistol was taken against the person who though had been
specifically described.
31. The statement of P.W.2 is of no avail to the prosecution as neither he had K seen the
accused while committing crime, nor even in armed position. This witness stated about the
fact of firing upon the victim through Sangeen Khan (a kid), but Sangeen Khan was not
examined. Similarly P.W.3 was also not an eye -witness. The statement of P.W.3 if accepted,
as it is, at the best the presence of Arsalan and Sangeen Khan stands established,
unfortunately, and for the reasons best known to the prosecution both the kids were never
examined, hence the statement o f P.W.3 failed to prove the prosecution case. Further, P.W.2
only stated about presence of Sangeen Khan, name of Arsalan did not appear in his
statement. As far as the complainant is concerned, in his written report he did not describe
presence of either o f the boys, rather in his supplementary statement he showed presence of
his niece namely Bibi Masnoona aged 8/9 years in the shop, in whose presence one person
visited the shop asked for Khalid in bitter language, and as per appearance of the person,
descr ibed by the girl, he arrived to the conclusion that the appellant/accused was that person.
P.W.2 and P.W.3 did not describe presence of the minor girl. In addition the complainant
referred some other persons ( ﻟﻮﮒ ﺴﺏ ) who told him that the appellant/accu sed was
involved in the commission of the offence. But these ( ﻟﻮﮒ ﺴﺏ )were neither specified, nor
named by the complainant. Even the Investigating Officer made no efforts to locate that ( ﻟﻮﮒ
ﺴﺏ ) or to approach the minor girl, and get identified the appella nt/accused as per
requirement of law. The appellant/accused was not identified by the person who either saw
him just before the incident, or from whom he made some transaction in course of
commission of the offence, which is a lapse on part of the prosecut ion. In absence thereof the
identification of the accused made in the court by the witnesses was of less significance,
coupled with the fact that there were variations in their statements about presence ofThis 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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