2024 Y L R 2118
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ
SHABBIR AHMAD--- Appellant
Versus
The STATE---Respondent
Criminal Appeal No.(s) 130 of 2022, decided on 2nd January, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 147, 148 & 149 ---Qanun- e-Shahadat (10 of 1984) ,Art. 39---Qatl -i-amd,
rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of
evidence---Confession before the Police ---Indmissible in evidence ---Record revealed that
the pistol was not recovered from the possession of the appellant ---One of the witnesses of
the recovery memo. of the motorcycle took into possession the same (pistol) from the scene of occurrence--- To whom, the pistol belonged, had not come on the record ---Trial
Court also discarded the statement of the prosecution witness of the blood stained swab-sticks, because he during his cross -examination stated that the police had not recorded his
statement ---From the evidence of other three prosecution witnesses of the recovery memo.
of the articles recovered from the personal search of the appellant, of the recovery memos of the last worn clothes of the deceased and of the disclosure memo. of the appellant, no new fact came on record, rather a confession before the Police was considered by the Trial Court --- Said confession was not a relevant fact under Art. 39 of the Qanun- e-Shahadat,
1984, as such it was inadmissible in evidence ---Trial Court mainly placed reliance upon
confessionary video in which the appellant had confessed his offence before the Police and arrest of the appellant on the scene of occurrence in injured condition and recovery of crime weapon from him ---Confession before police was not admissible ---Pistol was taken
by the police which was lying with the corpus of deceased---Mere arrest of the appellant in injured condition from the place of occurrence was not evidence of the fact that, indeed, the appellant was the accused --- It was the case of prosecution that the firing was made at
the deceased in open market and there was rush and shops were opened---When prosecution had failed to prove involvement of the appellant in the alleged offence, then, appellant might be presumed a passerby ---Appeal against conviction was allowed, in
circumstances.
(b) Criminal trial---
----Testimony of witness disbelieved ---Conviction---Scope ---Once the testimony of an
eye-witness is disbelieved then no other evidence, even of high degree and value, would
be sufficient to convict an accused in a case of capital punishment.
Mst. Sughra Begum v. Qaiser Pervaiz and others 2015 SCMR 1142 ref.
(c) Penal Code (XLV of 1860) ---
----Ss. 302, 147, 148 & 149---Qatl -i-amd, rioting, rioting armed with deadly weapons,
unlawful assembly --- Appreciation of evidence ---First Information Report lodged with an
unexplained delay---Trial Court had overlooked the fact that FIR was lodged with an
unexplained delay of about 14 hours and 30 minutes after the incident ---Delay in the FIR was not explained by the Investigating Officer --- Investigation of the case was started by
the Investigation Officer even before the lodgment of the FIR, which cast a serious shadow of doubt on the prosecution case --- Unexplained delay in lodgment of FIR has
always been considered as a reasonable doubt ---Appeal against conviction was allowed, in
circumstances.
Altaf Hussain v. The State 2019 SCMR 274 ref.
Inayatullah Marghzani for Appellant.
Jameel Akhtar Gajani, Addl: P.G for Respondent.
JUDGMENT
GUL HASSAN TAREEN, J .---This judgment shall dispose of Criminal Appeal
No.(s) 130/2022 filed by Shabbir Ahmed, it arises out of the judgment dated 8th December,
2022 (impugned judgment), vide which the learned Addl: Sessions Judge -I Sibi ("Trial
Court"), having tried the appellant (in the case registered vide FIR No. 218/2021 dated 5th October, 2021, under sections 302, 147, 148 and 149, the Pakistan Penal Code, 1860 ("P.P.C") for committing Qatl -e-Amd of Gul Muhammad and Mazar Khan, convicted the
appellant in the following terms: -
Convicted under section 302(b), P.P.C. and sentenced to life imprisonment on two
counts and to pay compensation of Rs. 10,00,000/ - to the legal heirs of each deceased total
Rs. 20,00,000/ - in equal shares, under section 544- A, the Criminal Procedure Code, 1898,
("Cr.P.C"), in default to pay, to further undergo six months with benefit of section 382- B,
Cr.P.C. However, life imprisonment on two counts was ordered to run consecutively.
2. The prosecution case as disclosed in the report (Ex: P/1 -A) is that on 04th October,
2021, at 09:45 a.m., the complainant's father Gul Muhammad and brother Mazar Khan alias Naveed along with the complainant, after attending a case at Sessions Court, were proceeding on two motorcycles, towards sister's house through Nur Pur Road. His father and brother were ahead of him. When they reached at Gorichani in front of a Kabari Shop, five persons from motorcycles alighted and started firing. One person, later identified as Shabbir
Ahmed was caught red handed by the police, whose bullets landed at the chest and head of his father, while Bakhtiar's bullets landed at the chest and head of his brother Mazar Khan. The three unknown persons also made firing with Pistols. Because of rush and being empty handed, he could not catch the accused, however, on having heard the noise of firing, the police reached at the spot whom overpowered the accused Shabbir Ahmed along with Pistol, whereas the remaining accused succeeded to make good their escape from the spot. Motive is an old enmity.
On such report, a formal FIR No. 218/2021 was lodged and investigation of the case
was entrusted to Ghous Bakhsh SI. The complainant also roped Kamran and Abdul Rehman in the case through subsequent statements. After formal investigation, the Investigating Officer prepared final report under section 173, the Cr.P.C. and sent it to the Trial Court.
3. On 31st January, 2022, the Trial Court formally charge sheeted the appellant and the
two co -accused. All pleaded "Not Guilty" and claimed trial. The prosecution examined and
produced following evidence.
PW-1: Juma Khan, the complainant, who tendered in evidence his complaint and
subsequent statements as Ex: P/1 -A to Ex: P/1 -D;
PW-2: Iqbal Ahmed, S.I, who produced the recovery memos of Pistol as Ex: P/2- A,
two live cartridges as Ex; P/2 -B, a magazine as Ex: P/2 -C, two bullets as Ex: P/2 -D,
three empty shells as Ex: P/2 -E, empty shells of 9 mm Pistol as Ex: P/2- F;
PW-3: Dr. Lal Muhammad, Ex- Police Surgeon. He produced the Medico Legal
Certificates of deceased as Ex: P/3 -A and Ex: P/3 -B and of Shabbir Ahmed as Ex:
P/3-C;
PW-4: Muhammad Hashim, ASI, who produced recovery memo. of motorcycle as Ex:
P/4-A;
PW-5: Nadir Khan, who produced site inspection memo. as Ex: P/5- A, recovery
memos of two swab -sticks as Ex: P/5 -C and motorcycle as Ex: P/5- D.
PW-6: Lashkaran, SI, who produced the memo. of personal search of Shabbir Ahmed
as Ex: P/6 -A;
PW-7: Abdul Hakeem, the witness of the recovery memo. of last worn clothes of
deceased Gul Muhammad and Mazar Khan as Ex: P/7 -A and Ex: P/7- B;
PW-8: Ishtiaq Ahmed, SI, who produced the disclosure memo. of Shabbir Ahmed as
Ex: P/8 -A, recovery memo. of USB as Ex: P/8- B, FIR, challan etc as Ex: P/8- C and
disclosure memo. of co- accused Kamran Khan as and Ex: P/8 -D, and
PW-9: Ghous Bakhsh, the Investigating Officer, who produced FIR as Ex: P/9- A,
Map as Ex: P/9 -B, inquest reports as Ex: P/9- C and Ex: P/9 -D, analysis report as Ex:
P/9-E, blood stained clothes as Ex: P/9- F, incomplete challan as Ex: P/9 -G, Digital
analysis report as Ex: P/9- I and chall an No. 219 -B/2021 as Ex: P/9- J.
On conclusion of the prosecution evidence, the appellant and co -accused were
examined by the Trial Court under section 342, Cr.P.C. All accused did not, make statements
on oath nor lead defence evidence. On conclusion of trial, the co- accused were acquitted
from the charge, while the appellant was held guilty and, therefore, convicted and sentenced in above mentioned terms.
4. We have heard Mr. Inayatullah Marghzani, Advocate, counsel for the appellant and
Mr. Jameel Akhtar Gajani, Addl: Prosecutor General and have gone through the record of the case.
5. The Trial Court in the impugned judgment has held that the presence of the
complainant at the time and place of the occurrence is doubtful and discarded his statement
on the grounds discussed in Para Nos. 29 to 31 of the impugned judgment. We are in
agreement with the findings of the Trial Court. However, on the basis of rest of the evidence, the Trial Court has sentenced the appellant.
6. The Trial Court, after discarding the sole eye -witness of the incident, has placed
reliance upon circumstantial evidence while sentencing the appellant. The PW -2 in his
examination in chief stated that we picked up a Pistol from the scene of occurrence. He, in his cross -examination stated as under:
"The said pistol was lying near the corpus of Gul Muhammad which was taken into possession."
The pistol was not recovered from the possession of the appellant, therefore, recovery
of the crime weapon does not connect the appellant with the commission of the alleged offence. The PW- 4 is the witness of the recovery memo. of the motorcycle, took into
possession from the scene of occurrence. To whom, it belongs, this fact has not come on the record. The Trial Court also discarded the statement of the PW -5, because he, during his
cross -examination stated that the police had not recorded his statement. He is witness of the
blood stained swab- sticks. The PW -6 is the witness of the recovery memo. of the articles
recovered from the personal search of the appellant. PW -7 is witness of the recovery memos.
of the last worn clothes of the deceased. The PW -8 is witness of the disclosure memo. of the
appellant, however in consequence thereof, no new fact came on record rather is a confession before police which is not a relevant fact under Article 39, the Qanun- e-Shahadat Order,
1984 ("the QSO"), as such inadmissible in evidence. He also produced a USB as Art: P/41 in which electronic data from the mobile of the appellant was transferred. The contents of the USB were displayed in the Trial Court on a laptop. He, in his cross -examination admitted
that he was not present, when data from the mobile was copied in the USB (Question No.7). He also stated that the conversation in Sindhi, in the audio, had not contained any conversation about planning for the murder of the deceased (Question No 22) It is correct that, in the video played, one parked motorcycle has been captured, number etc of which, have not been captured. On road, traffic, motorcycle, cars are in motion and one Pistol has been shown, (Question No.24). The Art: P/41 (USB) does not connect the appellant with the commission of the alleged offence. Finally the Investigating Officer appeared.
7. The Trial Court mainly placed reliance upon the confessionary video in which the
appellant has confessed his offence before police and arrest of the appellant from the scene of occurrence in injured condition and recovery of crime weapon from him. The Trial Court has overlooked that confession before police is not admissible, whereas, the Pistol was taken
by the police which at then, was lying with the corpus of deceased Gul Muhammad. The
mere arrest of the appellant in injured condition from the place o f occurrence is not evidence
of the fact that indeed, the appellant is the accused. It is the case of prosecution that the firing was at made at the deceased in open market and at then, there was rush and shops were
opened. When prosecution has failed to prove involvement of the appellant in the alleged
offence, then, appellant may be presumed a passerby. The prosecution has badly failed to establish an unbroken chain of circumstantial evidence against the appellant.
8. The Trial Court has overlooked the settled principle of law that once the testimony of
a eye- witness is disbelieved then no other evidence, even of high degree and value, would be
sufficient to convict an accused in a case of capital punishment. In this case, the Trial Court has disbelieved the testimony of the sole eye -witness for valid reasons, however,
simultaneously, relied on the evidence of forensic of the audio and video copied from the mobile of the appellant to the USB, hence, committed material illegality. Reliance is placed on the case of Mst. Sughra Bequm v. Qaiser Pervaiz and others (2015 SCMR 1142), wherein, the Hon'ble Apex Court has held as under: -
"8. It is cardinal principle of justice that ocular account in such cases plays a decisive and vital role and once its intrinsic worth is accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution. To the contrary, once the ocular account is disbelieved then no other evidence, even of a high degree and value, would be sufficient for recording conviction on a capital charge therefore, we have to see the probative value of the ocular account in light of the facts circumstances of the case."
9. The Trial Court has also overlooked the fact that the incident took place on 04th
October, 2021, at about 09:45 a.m., while FIR was lodged on 05th October, 2021 at 12:10 a.m. with an unexplained delay of about 14 hours and 30 minutes. The delay in the FIR was not explained by the Investigating Officer. The Investigation of the case was started by the I.O, even, before the lodgment of the FIR, which casts a serious shadow of doubt on the
prosecution case. Unexplained delay in lodgment of FIR, has always been considered by the Apex Court, as a reasonable doubt. We place reliance on the case of Altaf Hussain v. The State reported in 2019 SCMR 274.
For the foregoing discussion, we are of the firmed opinion, that the prosecution has
failed to prove its case against the appellant beyond reasonable shadow of doubt. Therefore, we allow this appeal and set -aside the impugned judgment. The appellant Shabbir Ahmed
son of Faiz Muhammad is acquitted of the charge in case FIR No. 218/2021 dated 05th October, 2021 registered under sections 302, 147, 148 and 149 P.P.C with P.S City Sibi. He is behind the bars, he be set at liberty forthwith, if not required to be detained in any other case.
Above are the reasons of our short order dated 22nd December, 2022, which reads as
follows:
"For the reasons to be recorded on later on, the appeal is accepted. The impugned judgment dated 08.12.2022 passed by learned Additional Sessions Judge -I, Sibi in
Sessions Case No. 54/2021 is set aside and the appellant viz. Shabbir Ahmed son of Faiz Muhammad is acquitted of the charge under section 302 (b) P.P.C., arising out of FIR No. 218/2021, PS City, Sibi. The appellant be set at liberty, if not required in any other case."
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