2016 Y L R 1418
[Balochistan]
Before Naeem Akhtar Afghan and Muhammad Kamran Khan Mulakhail, JJ
ABDUL HALEEM ---Petitioner
Versus
The STATE---Respondent
Criminal Appeal No.127 and Criminal Revision Petition No.13 of 2013, decided on 4th January,
2016.
Penal Code (XLV of 1860) ---
----Ss. 302(b) & 324---Qatl -i-amd and attempt to commit qatl- i-amd---Appreciation of evidence -
--Benefit of doubt ---Eye -witnesses did not receive any firearm injury despite their alleged
presence at the place o f occurrence and firing by the accused ---Site plan did not mention the
presence of alleged eye -witnesses and complainant nor it mentioned the points/place where
accused were standing ---Site plan was not a substantive piece of evidence but it had evidentiar y
value with regard to the matters which were result of the observation of the investigating officer
and were not entered therein at the instance of eye- witnesses ---Omission to indicate the position
of eye -witnesses in the site plan at the time of occurren ce would reflect on the possibility of
witnesses not being present at the time of occurrence ---Injury report did not mention the
presence or arrival of the accused ---Delay in dispatching/handing over the weapon of offence
and crime empties to Forensic Science Laboratory would destroy the evidentiary value of the
report of Firearm Expert ---Such report could not be used to corroborate the ocular testimony of
witnesses nor it could be considered for conviction of accused---Statement of prosecution
witness unde r S.161, Cr.P.C. was recorded on 28- 08-2005 whereas occurrence took place on 26-
08-2005---Such statement of witness recorded with delay had shaken the credibility of his
testimony ---Prosecution evidence was suffered from infirmities ---Ocular testimony lack ed
independent corroboration which was not confidence inspiring---Plea of alibi had been proved
through oral as well as documentary evidence ---False implication of accused could not be ruled
out of consideration--- Impugned judgment was set aside while exte nding the benefit of doubt ---
Accused was acquitted of the charge and he was ordered to be released forthwith if not required
in any other case---Appeal was allowed in circumstances.
Abdul Sattar v. State 2008 PCr.LJ 869 and Ali Sher v. State 2008 SCMR 707 rel.
Mohammad Dawood Kasi for Appellant (in Criminal Appeal No.127 of 2013).
Rehmatullah Barrech for the Complainant (in Criminal Appeal No.127 of 2013).
Atiq Ahmed Khan, Deputy Prosecutor General for the State (in Criminal Appeal No.127
of 2013).
Rehmatullah Barrech for Petitioner (in Criminal Revision No.13 of 2013).
Mohammad Dawood Kasi for Respondent No.1 (in Criminal Revision No.13 of 2013).
Atiq Ahmed Khan, Deputy Prosecutor General for the State (in Criminal Revision No.13
of 2013).
Date of hearing: 21st December, 2015.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. --This common judgment disposes of Criminal
Appeal No.127 of 2013 and Criminal Revision No.13 of 2013 as common questions of fact and
law are involved in both the matters.
2. Criminal Appeal No.127 of 2013 has been filed by the appellant (convict Abdul Haleem)
against the judgment dated 26th April, 2013 (hereinafter "the impugned judgment") passed by
the learned Additional Sessions Judge -III Quetta (hereinafter "the trial C ourt") whereby the
appellant has been convicted and sentenced under section 302(b), P.P.C. to suffer imprisonment
for life and to pay fine of Rs.100,000 in terms of section 544- A, Cr.P.C. to the legal heir of
deceased Ahmed Ali and in default of payment of fine to further suffer six (6) months S.I, under
section 324, P.P.C. to suffer seven (7) years' R.I with fine of Rs.20,000/ - as Daman. The
appellant has been ordered to be kept in custody till realization of Daman amount. Both the
sentences have been orde red to run concurrently with benefit of section 382 -B, Cr.P.C.
3. Criminal Revision No.13/2013 has been filed by the complainant/ PW -1 for enhancement
of the sentence of the appellant and to award him death penalty.
4. Facts of the case are that on the basis of Fard -e-Bayan (Ex.P/1 -A) of Ali Ahmed son of
Shah Mohammad dated 26th August 2005 recorded by IP/SHO Police Station Sariab
Muhammad Jamil Kakar in Civil Hospital Quetta, FIR No.192/2005 was registered with Police
Station Sariab Quetta at about 6:15 p.m. with regard to the occurrence of 5:25 p.m. under
sections 302, 324 Qisas and Diyat Ordinance r/w section 34, P.P.C., wherein it has been stated
by the complainant/ PW -1 that he is residing in Killi Sheikhan with his parents and is tailor by
professi on; that Abdul Nabi (co- convict/appellant in Criminal Appeal No.268/2014) and Ismail
(absconding accused) both sons of Abdul Ali are his brothers -in-law; that for the last two years
his two sisters are residing in his house as their husbands (co- convict Ab dul Nabi and
absconding accused Ismail) used to assault them; that today, he along with his younger brother
Ahmed Ali (deceased) were present in the house; that at about 5:25 p.m, someone knocked the
door of the house; that his younger brother Asif went outside; that in the meanwhile, he heard a
fire shot; that on hearing the fire shot, he along with his brother Ahmed Ali also came out of the
house and saw Abdul Nabi alias Babu, Ismail and Sayedo sons of Haji Abdul Ali and their
brother -in-law Abdul Haleem son of Mohammad Karim (the appellant) standing outside the
house; that all the four accused were having pistols/revolvers in their hands; that all the four
accused suddenly started firing upon him and his brother Ahmed Ali, due to which, his brother
Ahmed Ali received a bullet injury in his abdomen and he received two bullet injuries in his right
and left arms; that he and his brother became severely injured; that his brother succumbed to the
injuries on his way to the hospital; that the accused left their motorcycle No.JKE -6254 at the
place of occurrence; that the accused have murdered his brother and have caused him injuries
due to matrimonial dispute.
5. In pursuance of above FIR, investigation was started. PW -10 Ghulam Fareed S.I was
appointed as Inve stigating Officer. PW -10/I.O prepared inquest report of the deceased Ahmed
All and requested for postmortem of the deceased. The I.O. along with other police officials
reached the place of occurrence and inspected the place of occurrence on the pointation of PW -4
Shah Mohammad and prepared site plan as well as site inspection memo. PW -10/I.O. recovered
two empties of 30- bore and a 30- bore pistol from the place of occurrence; that two live cartridges
were recovered from the magazine of the said pistol. The I .O. also took into possession the
motorcycle No.JKE -6254 allegedly left by the accused. The statements of the witnesses to the
recovery memos and of Shah Mohammad, Asif Ali and Farhana Shah were recorded under
section 161, Cr.P.C., whereafter PW -10/I.O. re turned to the Civil Hospital, where postmortem of
the deceased was already conducted. The Police Surgeon handed over the blood stained shirt of
the deceased. The dead body was handed over to the legal heirs for burial. The blood stained
shirt and Shalwar of the complainant/PW -1 (injured Ali Ahmed) were taken into possession in
the Orthopedic Ward of Civil Hospital. According to PW -10/I.O, in the meanwhile he came to
know that the co -convict Abdul Nabi and absconding accused Ismail had gone to Police Station
Shaal -Kot in injured condition along with Abdul Hakeem (the appellant) and had availed injury
reports for getting Medico Legal Certificates ("MLC") and that they had proceeded to Civil
Hospital; that upon this information, he reached Civil Hospital, where it revealed that the co -
convict Abdul Nabi and absconding accused Ismail had entered their injuries, but they were not
available in the premises; that the doctor told him that they have been sent for X -Ray, but they
did not return.
6. On 6th September 2005, PW -10/ I.O availed postmortem report of the deceased. On 15th
September 2005, blood stained clothes were sent to Forensic Science Laboratory ("FSL"), in
respect whereof, report was availed on 24th September 2005, The MLC of PW -1/ complainant
was avail ed on 14th November 2005. The MLCs of co- convict Abdul Nabi and absconding
accused Ismail were availed by PW -10/I.O. on 3rd December 2005.
7. That two crime empties and pistol recovered by PW -10/I.O. on 26th August 2005 from
outside the house of the complainant/PW -1 were taken by him personally to FSL Karachi on
20th February 2006 for analysis.
8. The appellant surrendered himself before the trial Court on 12th November 2005 for
grant of pre -arrest bail. He was granted ad -interim pre -arrest bail, wh ich was subsequently
confirmed by the trial Court vide order dated 15th February 2006. In support of his plea of alibi,
during his ad- interim bail, on 7th January 2006, the appellant produced to the PW -10/I.O., the
photocopies of Roznamcha report of 9:15 a .m. of Police Station Baghdadi Karachi dated 26th
August 2005 about missing of his CNIC, driving license and Pakistan Qaumi Razakar (PQR)
Card, application submitted by him to SHO Police Station Baghdadi Karachi and his affidavit
with regard to his accident on 26th August 2005 at 11:00 a.m. in Karachi, which were taken into
possession vide recovery memo dated 7th January 2006 (Ex.P/8- A) before the witnesses Munir
Ahmed Head Constable and Mohammad Karim Constable. The said documents have been
produced at the trial by PW -8 Munir Ahmed as Article P/16, Article P/17 and Article P/18.
Verification of the documents produced by the appellant was sought from SHO Police Station
Baghdadi Karachi by PW -10/I.O. SHO Police Station Baghdadi Karachi deputed Fateh Sher SI
of Police Station Baghdadi Karachi for verification from record. After verification, Fateh Sher SI
issued a certificate (Ex.P/10 -E) dated 20th February 2006 to the effect that the
Roznamcha/reports produced by the appellant are bogus and that the same hav e no entry in the
record of Police Station Baghdadi. PW -10/I.O. recorded 161, Cr.P.C. statement of Fateh Sher, SI
and took the certificate (Ex.P/10- E) on record through recovery memo Ex.P/10- F dated 21st
February, 2006.
On completion of investigation to the extent of the appellant, incomplete Challan was submitted.
On 15th May 2006 positive report of the Firearm Expert Karachi was received by PW -10/I.O. in
pursuance whereof, supplementary Challan was submitted, whereafter the appellant was put on
trial.
9. At the trial, the appellant was read over the charge under sections 302, 324, 34, P.P.C. on
20th September, 2006 to which the appellant did not plead guilty and replied as under: --
"I do not plead guilty to the charge as I am innocent and was not pre sent at the spot,
wrongly been involved in this case".
10. After framing charge, the prosecution produced ten (10) witnesses whereafter the
appellant was examined under section 342, Cr.P.C. The appellant also recorded his statement on
oath and produced documents Ex.D/1 and Mark D -1 to D -20 in his statement. The appellant also
produced DW -1 Fazal Shah Bacha, DW -2 Bibi Aasia, DW -3 Dr.Sheikh Zaheer Hussain Medical
Officer Sindh Government Lyari General Hospital Karachi, DW -4 Basharat Hussain ASI with
application of the appellant dated 11th November 2004 (Mark D/15) and letter dated 12th
November 2004 (mark D/l6), DW -5 Taj Munir representative of PQR with letter/ application of
the appellant dated 26th August 2005 (Ex.DW/2), recruitment form of the appellant ( Ex.DW/3)
Affidavit of the appellant (Ex.DW/4), particulars of the appellant (Ex.DW/5), Duty reports of the
appellant (Ex.DW/6, 7, 8) etc.
11. After concluding evidence and hearing arguments, the trial Court vide judgment dated
30th December 2008 awarded conviction to the appellant under section 302(b), P.P.C. and
sentenced him to suffer imprisonment for life as Tazir, under section 324, P.P.C. to suffer ten
years' R.I. and to pay Rs.50,000/ - as Daman to the injured/complainant and both the sentences
were ordered to run concurrently. The file was kept in dormant till arrest of the absconding
accused.
12. The appellant challenged his conviction and sentence by filing Criminal Appeal
No.20/2009 before this Court. The complainant/PW -1 also preferred Criminal Revision
No.35/2009 for enhancement of the sentence of the appellant. After hearing arguments of learned
counsel for the parties, this Court vide judgment dated 22nd December 2011, after setting aside
the judgment dated 30th December 2008 of the trial Court remanded the matter to the trial Court
for rewriting the judgment in the light of the discussion made in the judgment with opportunity
to both the parties to lead evidence if desired. The operative portion of the judgment dated 22nd
December, 2011 passe d by this Court is reproduced herein below: --
"It may be noted that, while convicting the appellant and awarding him punishment, the
trial Court has not applied its mind properly, as is evident from the fact that only on
account of Ex.P/10- E, he has disc arded all the documentary evidence produced by the
appellant in a slipshod manner without entry in Baghdadi Police Station. Needless to
mention here that even if the entry made in Baghdadi Police Station is excluded of
consideration, certain documentary and oral evidence was produced by the appellant in
support of his plea of alibi, but the trial Court has discarded the same without dilating
upon the same. Moreover, under Article 10- A of the Constitution of Islamic Republic of
Pakistan, 1973, it is the fundamental right of the appellant to have a fair trial, which
speaks as under:
"10- A. Right to fair trial. ---For the determination of his civil rights and obligations or in
any criminal charge against him a person shall be entitled to a fair trial and due p rocess"
Thus, on account of above discussed factors, the judgment dated 30th December 2008,
passed by the Additional Sessions Judge -Ill, Quetta, in Sessions Case No.19 of 2006, is
not sustainable and is hereby set aside. The matter is remanded to the trial Court w ith
direction for re -writing of the judgment in the light of above discussion with opportunity
to both the parties to lead evidence, if they desire so. The trial Court is expected to decide
the matter afresh as early as possible.
The appeal and revision petition are disposed of accordingly."
13. After remand of the matter to the trial Court the prosecution did not produce any further
evidence. However, the appellant produced DW -6 Tahir Shah representative of CCPO Quetta
with official copies of the appli cations submitted by the appellant dated 18th November 2005,
23rd May 2006 etc. as Ex DW/6- A and Mark DW/21- A to 21- D and DW -7 Rao Mohammad
Anwar SI of Police Station Baghdadi Karachi report along with Ex.D/7- A, confirming the
Roznamcha Report No.17 dated 26th August, 2005 and arrival of the appellant in Police Station
Baghdadi on the said date.
14. After recording the statement of DWs -6 and 7 and hearing arguments of learned counsel
for the parties, the trial Court vide impugned judgment has awarded conviction and sentence to
the appellant, whereafter, the appellant has filed the instant appeal. The complainant/PW -1 has
preferred Criminal Revision No.13/2013 for enhancing the sentence of the appellant to death
penalty.
15. Learned counsel for the appell ant stated that the prosecution evidence of interested and
related witnesses is lacking independent corroboration in material aspects; that the prosecution
evidence is suffering from infirmities; that the prosecution has failed to prove the charge against
the appellant beyond any shadow of doubt; that the appellant proved his enmity with IP/SHO
Police Station Sariab Muhammad Jamil Kakar, due to which, the appellant was falsely
implicated by him in the instant case with the connivance of the complainant part y; that the plea
of alibi raised at the early stage of investigation and proved at the trial by the appellant through
oral as well as documentary evidence has not been properly appreciated by the trial Court; that
the conviction and sentence awarded to the appellant by the trial Court is based on misreading
and mis -appreciation of the evidence available on record; that there exist sufficient doubt in the
case of the prosecution to the extent of the appellant, on basis whereof, the impugned judgment
is liable to be set aside. Learned counsel for the appellant prayed for dismissal of criminal
revision petitioner for enhancement of sentence of the appellant.
16. Learned Deputy Prosecutor General while opposing the appeal and supporting the
criminal revision p etition for enhancement of the sentence of the appellant to death penalty stated
that the prosecution through consistent and confidence inspiring ocular testimony of eye -
witnesses, injured witness, corroborated by MLCs, recovery of crime weapon, crime empt ies,
motorcycle and positive reports of FSL has proved the case against the appellant beyond any
shadow of doubt; that the prosecution evidence is not suffering from any infirmity or
contradiction to render the same untrustworthy; that the conviction and s entence awarded to the
appellant by the trial Court is based on proper appreciation of the evidence available on record;
that the plea of alibi has not been proved by the appellant at the trial; that the Roznamcha Report
No.17 of Police Station Baghdadi Ka rachi relied upon by the appellant was proved to be
bogus/fabricated. According to learned DPG there are no mitigating circumstances to award
lesser sentence of life imprisonment to the appellant.
17. While opposing the appeal and pressing criminal revis ion for enhancement of the
sentence of the appellant to award death penalty, learned counsel for the complainant stated that
the prosecution has proved the charge against the appellant beyond any shadow of doubt through
confidence inspiring testimony of ey e-witnesses which is corroborated by the recovery of pistol,
crime empties, positive report of the Firearm Expert, recovery of motorcycle as well as MLCs;
that the statements of PWs -1, 3, 4 and 5 cannot be discarded due to their relationship with the
deceased; that sufficient incriminating evidence is available on record to connect the appellant
with the commission of the offence; that the plea of alibi raised by the appellant has not been
proved at the trial; that the documents produced by the appellant in support of his plea of alibi
have proved to be forged/fabricated; that there are no mitigating circumstances on record to
warrant lesser punishment to the appellant.
18. Heard the learned counsel and perused the available record. The application dated 10th
November 2004 (Mark D/15) submitted by the appellant to IG Police Balochistan Quetta reveals
of a complaint lodged by the appellant against the then SHO Police Station Industrial Area
Quetta Mr. Muhammad Jameel Kakar who has written the Fard -e-Bayan Ex .P/1-A dated 26th
August 2005 of the complainant/ PW -1 as IP/SHO Police Station Sariab. The letter (Mark D/16)
issued by Provincial Police Officer Balochistan Quetta to CCPO Quetta reveals that in pursuance
of the application submitted by the appellant aga inst the then SHO Police Station Sariab
Muhammad Jameel Kakar, directions were issued to Local Police SP to take cognizance and to
register a case and investigate the matter.
It is the plea of the appellant that IP Muhammad Jameel Kakar was SHO Police St ation Sariab in
jurisdiction whereof the occurrence of the instant case took place; that IP/SHO Muhammad
Jameel Kakar of Police Station Sariab was inimical towards him, due to which he with the
connivance of the complainant party falsely implicated the app ellant in the instant case being
relative (brother -in-law) and elder of co -accused.
19. The appellant has also raised special plea of alibi. While raising plea of alibi the appellant
has stated on oath that he was residing in Karachi for the last twenty years with his family and
two brothers and their families in PIB Colony Karachi; that he deals in fruit and vegetable as
Commission Agent; that he also serves as ASI in PQR; Lyari Karachi; that on the day of
occurrence he was not present in Quetta and he w as at Karachi; that on the morning of 26th
August 2005, where while travelling in a Local Bus he lost his CNIC, driving license and PQR
card as well as some cash; that he reported the matter to Police Station Baghdadi Karachi on 26th
August, 2005 at 9- 15 a.m. vide Roznamcha No.17 (Exh.DW/1); that on the same day at 11- 00
a.m. when he was going towards the bus stop, he was hit by a motorcycle while crossing the road
due to which he received injuries; that he also reported the accident with Police Station Bag hdadi
Karachi on 26th August 2005 vide application (Mark- DW/4) along with his affidavit (Mark -D-5)
and he went for treatment to Lyari General Hospital, in respect whereof, he produced OPD slip
(Mark -D/6) and the receipt (mark -D/7) of the medicines purchase d. He also produced the chit
issued by the doctor for X -ray as Mark -D-8. The appellant further stated that during his visit of
Quetta in the year 2004, he went to PW -4 Shah Muhammad to allow/return her daughters to join
the co -convict Abdul Nabi and absconding accused Ismail being their wives, but he asked him
not to interfere in the matter; that thereafter he approached the notables of Barreach tribe for
settlement between the two families, but they made no attempt; that PW -4 Shah Muhammad was
annoyed due to his taking up the matter with the notables.
20. The prosecution case vis -a-vis defense plea of alibi raised by the appellant and his plea of
false implication by the complainant party with the connivance of IP/SHO Muhammad Jamil
Kakar will be discussed in detail in the preceding paras.
21. The Fard -e-Bayan of the complainant/PW -1 (Ex.P/1- A) dated 26th August 2005 has
admittedly been written by Muhammad Jameel Kakar, IP/SHO Police Station Sariab and same
also bear his signature. Contents of Fard- e-Bayan Ex.P/1- A reveal that after receiving
information of occurrence, Muhammad Jameel Kakar, IP/SHO Police Station Sariab along with
the Investigating Officer Ghulam Fareed SI and other police officials reached Civil Hospital
where the dead body of deceased A hmed Ali was lying and the complainant/PW -1 was found
present injured. In the Fard- e-Bayan (Ex.P/1- A) the name and the relation of the appellant with
co-convict Abdul Nabi and absconding accused Saido and Ismail have been written after cutting
and overwrit ing for which no explanation has been offered by the prosecution throughout the
trial.
In his Fard- e-Bayan (Ex.P/1- A) as well as in his statement recorded at the trial, the
complainant/PW -1 has not mentioned about the presence /arrival of PW -4 Shah Muhammad and
PW-5 Farhana Shah at the door/on the place of occurrence. In his Fard- e-Bayan (Ex .P/1- A) as
well as in his statement recorded at the trial, the PW -1/complainant has not attributed specific
injury or fatal shots to the appellant and he has levelled allegation of firing upon all the four
nominated accused while standing in the street out side the house of the complainant/PW -1. The
site plan (Ex.P/10 -B) and the statements of prosecution witnesses do not reveal of any bullet
marks on the walls or outer, door of the house. In his Fard -e-Bayan Ex.P/1- A as well as in his
statement recorded at t he trial, the PW -1/complainant has not mentioned about
throwing/dropping of the pistol by the appellant or the other accused on the place of occurrence.
Fard-e-Bayan (Ex.P/1- A) is also silent as to how and by whom the deceased or the complainant/
PW-1 were taken to the hospital. In his Fard -e-Bayan Ex.P/1- A as well as in his statement before
the court, the complainant/ PW -1 has concealed the injuries/multiple lacerated wounds of co-
convict Abdul Nabi and absconding accused Muhammad Ismail which had revealed/confirmed
during investigation through MLCs (Ex.P/9- B and Ex.P/9- C) collected by PW -10/I.O. and
produced by PW -9 Dr. Ghulam Haider at the trial.
22. PW-3 Muhammad Asif (brother of the deceased and complainant/PW1) while appearing
at the trial stated tha t on knock of the door when he came out, he saw his brothers -in-law
(absconding accused Ismail and co -convict Abdul Nabi) along with their brother (absconding
accused Saido) and their brother -in-law Abdul Haleem (the appellant) standing with a Honda
motorc ycle; that on seeing him all the four took out their pistols and revolvers; that absconding
accused Ismail made firing upon him but he escaped any injury; that on hearing the fire shots and
his hue and cry, his elder brothers i.e. deceased Ahmed Ali and the complainant/PW -1 Ali
Ahmed came out; that on their coming out, all the four started firing upon Ali Ahmed and
Ahmed Ali; that due to firing of Abdul Haleem (the appellant), Ahmed Ali (deceased) received
bullet injury whereas due to firing of co- convict A bdul Nabi and absconding accused Ismail and
Saido, Ali Ahmed (complainant/PW -1) became severely injured; that as a result of firing, his
both elder brothers fell down; that in the meanwhile, his parents and other inmates of the house
also came outside and due to scuffle as well as due to danda blows all the four accused received
injuries; that in the meanwhile, pistol dropped from the hand of the appellant; that on their hue
and cry and due to fear of reaching of the villagers, Abdul Haleem left his pistol, motorcycle and
all the four accused fled away.
23. During cross -examination PW -3 stated that his statement was recorded by the police, in
the night, but he did not tell the time. During cross -examination PW -3 stated that he was hit with
a fire, but ther e is no medico legal certificate of PW -3 on record to corroborate his version.
According to PW -3 when the firing was made for the second time he was present outside the
house, but he cannot say as to how many fires were shot. According to his version all t he empties
were falling outside the house. Despite firing by four accused with pistols and revolvers, only
two crime empties have been recovered. PW -3 further stated that due to firearm injuries his
brother had fallen on the side of the road and blood was oozing from their bodies. Surprisingly,
no blood stains or blood stained earth has been recovered from the road or side of the road
outside the house of the complainant/PW -1.
24. PW-4 Shah Muhammad (father of the deceased and complainant/PW -1) has also
recorded his statement in line with PW -3 with further addition that during scuffle due to hit by
his danda, pistol dropped from the hand of the appellant and same fell on the ground which was
subsequently taken into possession by the police with magazine ha ving two live cartridges. PW -5
Farhana Shah (sisters of the deceased and complainant/PW -1) also recorded her statement in line
with PW -3 and PW -4. Despite alleged presence at the place of occurrence and despite alleged
firing by four accused, it is surpris ing that PW -3, PW -4 and PW -5 did not receive any firearm
injury. The site plan (Ex.P/10- B) does not mention the presence of the alleged eye -witnesses
(close relatives of the deceased and complainant/PW -1) nor it mentions about the points/place
where the ac cused were allegedly standing.
Though site plan is not a substantive piece of evidence, but it definitely has evidentiary value
regarding those matters which are the result of the observation of the Investigating Officer and
are not entered therein at th e instance of eye- witnesses. Omission to indicate the position of PWs
in the site plan (Ex.P/10- B) at the time of occurrence reflects on the possibility of witnesses not
being present at the time of occurrence. Reference in this regard is made to the case of Abdul
Sattar v. State, 2008 PCr.LJ 869.
25. The inquest report Ex.P/10 mentions the names of Noor Muhammad son of Haji Khudai
Nazar and Abdul Ahad son of Haji Abdul Wahid as the witnesses who had identified the dead
body, but surprisingly, both the sa id persons are not the prosecution witnesses. According to
PW-9 Ghulam Haider Sumejo Medico Legal Officer, Civil Hospital Quetta, the
complainant/RW -1 was brought to the hospital by his neighbor Dad Muhammad in injured
condition for treatment. The Medico L egal Certificate (Ex.P/8 -A) of the complainant/PW -1 also
reveals that he was brought to the hospital by Dad Muhammad (neighbor) but said Dad
Muhammad is also not a prosecution witness.
26. Though PW -7 Khalid Mehmood Sub- Inspector stated that the co -convi ct Abdul Nabi and
absconding accused Ismail had come to the Police Station Shaal Kot on 26th August, 2005 with
the appellant with the statement that PW -4 Shah Muhammad and his sons have assaulted them at
Badeni Stop and after leaving for civil hospital the y did not return to the thana and that
subsequently he came to know that Abdul Nabi, Ismail and Abdul Haleem have committed
murder by firing. During cross -examination, PW -7 admitted that the injury reports which was
prepared in respect of co -convict Abdul Nabi and absconding accused Ismail, no mention has
been made about the presence or arrival of the appellant with the co -accused.
27. The pistol and two crime empties were allegedly recovered from the place of occurrence
on the day of occurrence i.e. 26th August 2005 but the report of firearm expert Ex.P/10- J reveals
that the two 30- bore crime empties and one 30- bore pistol were received to the FSL, Karachi on
20th February 2006. In his statement, PW -10/I.O. stated that he took the pistol and crime empties
to FSL Karachi on 20th February 2006. No explanation has been offered by the Investigating
Officer as to why the crime empties and pistol were kept with him for long six months and as to
why the same were not dispatched to FSL Karachi at the earliest. According to the contents of
report of firearm expert (Ex.P/10 -J one 30- bore test empty was sent in the sealed parcel of pistol,
but when parcel of pistol (Article P/4) was produced and opened before the trial Court by PW -2
Abdul Khaliq ASI, it contained one pistol with two live cartridges, but same was not containing
the test empty sent by the firearm expert. The unexplained inordinate delay of six months in
dispatching/handing over the pistol and crime empties to FSL Karachi has destroyed the
evidentiary val ue of the report of the Firearm Expert. In the attending circumstances of the
instant case same cannot be used to corroborate the ocular testimony of the interested and related
witnesses i.e. PWs -1, 3, 4 and 5 nor it can be considered for conviction of the appellant. Reliance
in this regard is placed on the case of Ali Sher v. State 2008 SCMR 707 wherein it has been held
as follows: --
"The crime -empties, having been allegedly found at the place of occurrence and having
been retained for so long in the pol ice station and having been sent to the F.S.L. along
with the crime weapons and that also 12 days after the alleged weapons of offence had
been allegedly recovered destroys the evidentiary value of the said piece of evidence.
These recoveries, therefore, cannot offer any corroboration to the ocular testimony"
28. Nothing has been brought on record by the prosecution throughout the trial to connect the
appellant with the allegedly recovered broken motorcycle. During cross -examination, PW -2
Abdul Khaliq ASI stated that the recovered motorcycle was broken. The recovery memo
(Ex.P/2 -D) dated 26th August 2005 mentions that a broken/smashed motorcycle was taken into
possession. None of the prosecution witness has stated as to how and by whom the motorcycle
was b roken. The statement of PW -2 and the recovery memo. (Ex.P/2- D) reveal that the
motorcycle was not in working condition at the time of its recovery on 26th August 2005 i.e. on
the day of occurrence.
29. PW-10/I.O. admitted that throughout the investigation proceedings Muhammad Jamil
Kakar, IP/SHO remained associated with him as SHO. PW -10/I.O. also admitted that the injury
reports of convict Abdul Nabi and absconding co -accused Ismail issued by Police Station Shaal
Kot do not mention/bear the name of the a ppellant. PW -7 further admitted that in the record of
civil hospital, it has been mentioned that the injured i.e. co -convict Abdul Nabi and absconding
accused Ismail themselves went to the hospital. The Medico Legal Certificates of co -convict
Abdul Nabi and absconding accused Ismail dated 26th August 2005 reveal that they had brought
the Murrassila to Sundeman Provincial Hospital Quetta themseves. The statement of PW -7 was
recorded by the I.O. on 28th August 2005 whereas the occurrence is of 26th August, 2005. PW -7
has not furnished any explanation for his delay in recording his 161, Cr.P.C. statement. The
delayed 161, Cr.P.C. statement of PW -7 has shaken the credibility of his testimony about coming
of the appellant with injured co- accused to Police Station Shaal Kot on 26th August 2005
particularly when the same is also not supported by the injury reports and the MLCs.
30. Coming to the defense version/ the plea of alibi of the appellant the PW10/I.O. in his
examination -in-chief stated that on 7th January 2006, being on ad- interim pre -arrest bail, the
appellant produced him Roznamcha report No.17 of Police Station Baghdadi Karachi dated 26th
August 2005, copy of an application dated 26th August, 2005 submitted to SHO Police Station
Baghdadi as well as his affidavit dated 26th August 2005 with regard to his accident with a
motorcycle which were taken into possession through recovery memo in presence of witnesses
Munir Ahmed HC and Muhammad Karim constable and in this regard their 161, Cr.P.C.
statements were also recorded. PW -10/I.O. further stated that for verification of the above
documents produced by the appellant, the same were sent to SHO Police Station Baghdadi
Karachi who appointed Duty Officer Fateh Sher SI of Police Station Baghdadi Karachi for
verification; that after verification Fateh Sher SI of Police Station Baghdadi Karachi submitted a
certificate dated 20th February 2006 (Ex.P/10- E) to the effect that all the documents produced by
the appellant are bogus and same have no entry in Baghdadi than a Karachi; that he recorded
statement of Fateh Sher SI of Police Station Baghdadi under section 161, Cr.P.C. and on
returning to Quetta on 21st February, 2006, he made the said certificate as part of record through
recovery memo in presence of witnesses an d in this regard he also recorded their 161, Cr.P.C.
statements.
31. According to the statement of the appellant on oath, the complainant party along with the
Investigating Officer went to Karachi and with the connivance of SHO Police Station Baghdadi
Karachi they managed to replace the Roznamcha report No.17 dated 26th August 2005 of the
appellant and managed certificate (Ex.P/10 -E) from Police Station Baghdadi; that in the
circumstances he submitted an application dated 2nd May 2006 to the Town Police O fficer
against SHO Police Station Baghdadi which is available on record as Mark -D-9. According to
the appellant, no action was taken on his application whereafter on 11th May 2006 he
approached Sindh High Court by filing C.P. No.587/2006 which was dismisse d on 18th May
2006 with the observations that he may approach the concerned Sessions Judge; that he
submitted an application under section 22- A, Cr.P.C. before Sessions Court Karachi (South)
which was transferred to VIth ASJ Karachi (South). It was stated in that application that the
complainant in collusion with police officials has arranged another entry along with police
report; that the said application of the appellant was dismissed. The appellant filed Cr. Misc.
Application No.208/2006 under section 561- A, Cr.P.C. before Sindh High Court which was
decided in his favour vide order dated 20th April 2007 (Mark- DW/11) which is reproduced
herein below: --
"Applicant had approached this Court by way of C. P. No.D -587/06, but the same was
dismissed with the observations that the Applicant may approach the learned Sessions
Judge concerned for appropriate relief. The applicant accordingly filed Cr.Misc.
No.619/06 before the learned Sessions Judge Karachi (South) for disposal according to
law. In the said applic ation under section 22- A, Cr.P.C. that the applicant lodged a
Roznamcha dated 26.8.2005 for missing of NIC, Driving License and PQR 's Card, at
Police Station Baghdadi, vide Entry No.17 at about 0915 hours. Applicant produced copy
of entry as Annexure -B. A pplicant on the same day while coming from the Police Station
faced with an accident by motorcyclist and sustained injuries. He got his medical
treatment from Lyari General Hospital. The applicant did not file any case about the said
accident. It is furthe r disclosed in the application that on 26.8.2005 an incident of murder
took place in which the applicant was named as an accused. The applicant got pre -arrest
bail from the learned IIIrd ADJ Quetta. The complainant moved an application for
seeking cancellation of bail in which it was alleged that entry dated 26.5.2005 was
forged. It is further disclosed in the application that the complainant in collusion with
police officials arranged another entry along with the police report of the same date.
Applicant a pproached the SHO and to clarify the position. The learned VIth Addl.
Sessions Judge Karachi (South) after perusing the Roznamcha observed that neither there
is cutting, overwriting in the entry specially Entry No.17 dated 26.8.2005, Therefore, it
was obse rved that the allegation of the petitioner levelled against the Respondent is
baseless and entry No.17 is not genuine as such Cr. Misc. Application was dismissed.
The applicant being dissatisfied with the impugned order has preferred this Cr.Misc.
Applicat ion under section 561- A, Cr.P.C.
The Roznamcha was summoned from the concerned Police Station by this Court and
with the assistance of the learned State counsel the same was examined. Certain other
papers are also available in the same and there are holes on different places of the said
Register which are lying intact. Learned State Counsel has perused the said Roznamcha.
The said Roznamcha was not properly examined by the learned VIth Addl. Sessions
Judge Karachi (South). The Entry No.17 dated 26.8.2005 was recorded at Police Station
Baghdadi whereon two seals are affixed with signature of the petitioner as well as of
recording officer but the concerned SHO has failed to bring such person and it is only
stated that HC Anwar Bhutto was contacted on his mobile but no reply was received and
HC Abdul Aziz has retired from service.
The applicant moved an application to the SHO concerned for his medical examination
and certificate and said application was received at Police Station. The applicant was
examined by Sindh Govt. Lyari General Hospital on 26.8.2005 and some injuries have
been noted and such certificate was also issued. It is obvious that the applicant after
sustaining injuries was referred for medical examination. All these submissions were not
taken into consideration by the lower Court. As per the Roznamcha it is obvious that the
same was opened by some police official because certain holes are apparent and there is
no threat inserted in the said holes and separate holes are available in which no th reat is
passing. Open holes are available. From the very beginning there is hole at page No.1 and
fresh paper has been pasted on the inner side of the Register at page 17 of the Register
dated 28.8.2005 some another entry has been incorporated regarding de parture of Police
mobile through ASI Muhammad Nawaz, whereas the copy submitted by the applicant in
this Cr.Misc. application is dated 26.8.2005 at page P -26 which reflects that Entry No.17
at 9.15 hours was incorporated at the information of the applicant . There is seal of
Baghdadi Police Station and also signed by the concerned official on 26.8.2005. From the
perusal of the Roznamcha Register this entry is not available in the record of Roznamcha.
There are also some loose papers with holes lying in the s aid Roznamcha w.e f 12.9.2005
upto 15.9.2004.
SHO Aziz Shaikh is present in court. He has seen the Roznamcha and submits that there
are loose papers available in the same pertaining to Entry Nos.22 to 55. The learned VIth
Addl. Sessions Judge has relied upon the defence of the respondent/accused, whereas
investigation is to be made by independent agency regarding the act of the
respondent/accused for tampering the Roznamcha.
In view of the above reasons, the impugned order is not sustainable and the sam e is
hereby set aside. An FIR of the applicant be recorded at the Police Station against
Inspector Nasrul Hasan, who was member of Lyari Task Force and other persons who are
instrumental in tampering the false and fabricated entry. Learned AAG Mr. Sabir Ha ider
present in Court in other cases submits that Mr. Farooq Awan, ADIG may be directed to
hold enquiry regarding the manipulation of Entry No.17 dated 26.8.2005. The
Roznamcha Register is handed over to Mr. Sabir Haider, learned AAG for handing over
to Mr . Farooq Awan ADIG.
Cr.Misc. No.208/2006 stands disposed of in the above term.
The above order passed by Sindh High Court was not assailed by the complainant or by IP/SHO
Muhammad Jamil Kakar or by PW -10/I.O. or by officials of Police Station Baghdadi Karachi
before the Hon'ble Supreme Court. The findings of Hon'ble Judge of Sindh High Court proves
replacement of the Roznamcha and report No.17 dated 26th August 2005 of the appellant from
the record of Police Station Baghdadi Karachi by the police offici als by tampering and
fabricating another entry.
32. In support of his plea of alibi the appellant has produced DW -1 Fazal Shah Bacha who
stated that on the day of occurrence i.e. 26th August 2005 he went to the house of the appellant
at Karachi to receiv e some money as he had made some construction in the house of the
appellant near old vegetable market Karachi; that when he went to the house of the appellant he
came to know that the appellant has met with an accident; that the appellant was present in hi s
house in injured condition whereafter he returned and subsequently he came to know that the
appellant has falsely been implicated in a murder case at Quetta. During cross -examination DW -
1 gave all the details about the construction made in the house of t he appellant at Karachi and the
amount which was to be received by him. Despite lengthy cross -examination, DW -1 has not
been shaken.
The defense version of the appellant is further supported by DW -2 Bibi Aasia who is the first
wife of co -convict Abdul Na bi and was living in Karachi since year 2001. DW -2 explained in
her cross -examination that she was against second marriage of co -convict Abdul Nabi and she is
living in Karachi since second marriage of co -convict Abdul Nabi. During cross -examination
DW-2 explained that she went to see the appellant in his house on 26th August 2005 at about
8:00 p.m and found him present in the house being injured.
33. DW-3 Dr. Sheikh Zaheer Hussain Medical Officer of Sindh Government Lyari General
Hospital Karachi stated that on 26th August 2005 in the morning he was present on duty when
the appellant Abdul Haleem who had received injures in a road accident came for treatment; that
he had received injury on his right thigh which was stitched by him and he was asked to come
again; that the appellant again came for dressing of his wound on 30th August 2005 and he
himself dressed the wound whereafter, the appellant left the hospital. DW -3 was shown the
photocopy of the slip of the causality as Mark D/6. DW -3 identified his sig nature upon the same
and also identified the stamp of the hospital as well as the date. DW -3 had also brought the
relevant register with him which was bearing the entries of 26th August 2005 and 30th August
2005 at serial Nos.48394 and 49035. DW -3 clarifie d that entry about the first arrival of the
appellant in hospital on 26th August 2005 is existing in the register at serial No.48394. The
original register was examined by the court and same was returned to the witness. During cross -
examination, DW -3 admit ted that in his register the entries of 26th August 2005 are with blue
ink and the entry of the appellant is with black ink. The witness further admitted that the name
"Abdul" and "Haleem" have separately been written in black ink after cutting the writing in blue
ink at S.No.48394 dated 26th August 2005. The witness admitted that slips of 26th August 2005
and 30th August 2005 bear his hand writing as well as his signatures. Witness further confirmed
during cross -examination that the appellant had come to t he hospital at about 11 AM/12- noon on
26th August 2005 in the causality of Lyari General Hospital Karachi.
34. DW-4 Basharat Hussain ASI representative of IG Police Balochistan produced the record
of the application dated 11th November 2004 (Mark- D/15) submitted by the appellant against
IP/SHO Muhammad Jameel Kakar as well as record of the letter dated 12th November 2004
(Mark -D/16) issued by the IG Police Balochistan to CCPO Quetta for investigation.
35. DW-5 Taj Munir representative of PQR appeared and produced copy of the application
(Ex.DW/2) dated 26th August 2005 submitted to DSP/PQR Lyari Town Karachi by the appellant
to the effect that while travelling in bus for coming to attend emergency meeting in the morning
of 26th August 2005, he lost his CNIC, PQR Card, documents and cash and requested for
issuance of duplicate PQR Card. Ex.DW/3 produced by DW -5 reve als that the appellant was
inducted in Capital City Police (QR) Karachi as ASI w.e.f. May 2005. The duty certificate dated
19th August 2005 (Ex.DW/6) issued by PQR verifies that the appellant while working as
ASI/Section Commander Lyari Town Karachi perfor med his duty well in the Local Bodies
Election of 2005 in aid of Police Force Lyari Town Karachi. The copy of the notice dated 22nd
August 2005 (Ex.DW/7) reveals that the appellant being ASI/Section Commander was called
upon by the office of Town Commander Lyari Town Karachi to attend an emergency meeting on
26th August 2005 at 10:00 a.m. in plain dress.
36. DW-6 Tahir Shah Representative of CCPO confirms the submission of applications dated
18th November to CCPO Quetta which bears receipt No.48954 dated 19th 2005 of the office of
CCPO which mentions of the inimical behavior of IP/SHO Muhammad Jameel Kakar, dishonest
investigation and false implication of the appellant with the connivance of the complainant. DW -
6 also produced the application of the appell ant dated 23rd May 2006 submitted to the CCPO
Quetta which is bearing receipt No.11982 dated 26th May 2006 of CCPO office, wherein the
appellant mentioned about enmity of IP/SHO Muhammad Jamil Kakar with him due to his
complaint of 10th November 2004 made to I.G Police Balochistan, his inimical behavior towards
the appellant his false implication in the instant case, dishonest and partial investigation by PW -
10/I.O., replacement of his Roznamcha No.17 in Baghdadi Police Station Karachi by the
investigating officer with the connivance of police officials of Police Station Baghdadi Karachi.
37. Similarly DW -7 Rao Muhammad Anwar SI of Police Station Baghdadi has appeared with
report Ex.7- A to the effect that on 26th August 2005 Report No.17 was registered at Police
Station Baghdadi Karachi by the appellant about the missing of his CNIC, driving license and
other documents as well as his accident; that subsequently, decision was also made in favour of
the appellant by the Sindh High Court and it was held that t he said Roznamcha report was
replaced. DW -7 confirmed that in the Roznamcha No.17 dated 26th August 2005 bears the seal
of Thana and the said Roznamcha report is correct and it confirms the arrival of the appellant in
Baghdadi thana.
38. It is further to be appreciated that for the allegation of producing forged/ bogus
documents to the Investigating Officer/PW -10 with regard to his plea of alibi, FIR No.75/2006
was lodged against the appellant with Police Station Sariab Quetta by IO/PW -10 Ghulam Fareed
SI; that the appellant was put on trial in that case before learned Sessions Judge, Sibi at Mach but
the appellant was acquitted in that case as well by he trial Court vide order dated 6th December,
2010 while accepting the application of the appellant under section 265- K, Cr.P.C. which has not
been further challenged.
39. On reappraisal of the prosecution and the defense evidence, it is concluded that the
prosecution evidence is suffering from infirmities; that the ocular testimony of interested and
related witnesses i.e. PW -1, PW -3, PW -4 and PW -5 is lacking independent corroboration in
material aspects and same is not confidence inspiring; that the plea of alibi raised by the
appellant at the earliest possible opportunity i.e. during investigation, pleaded in the charge and
put to all the prosecution witnesses stands proved at the trial through oral as well as documentary
evidence; that in the facts and circumstances of the case and in view of the documents produced
by the appellant in his defense through t he concerned witnesses, false implication of the
appellant due to vengeance of IP/SHO Muhammad Jamil Kakar with the connivance of the
complainant party cannot be ruled out of consideration.
40. For the above reasons, the appeal is accepted. The impugned judgment dated 26th April
2013 passed by learned Additional Sessions Judge -III, Quetta to the extent of the appellant is set
aside and while extending the benefit of doubt, the appellant Abdul Haleem son of Muhammad
Karim is acquitted of the charge under s ections 302(b), 324, 34, P.P.C. in Sessions case
No.19/2006, FIR No.192/2005 Police Station Sariab Quetta. The appellant being in custody is
ordered to be released forthwith, if not required in any other case.
Consequent to the above, Criminal Revision No.13/2013 is dismissed.
ZC/23/Bal Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.