2025 Y L R 1042
[Balochistan (Turbat Bench)]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
BASHIR AHMED--- Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. (T) 10 of 2023, decided on 6th November, 2023.
(a) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl -i-amd---Appreciation of evidence ---Delay of eighteen days in lodging
the FIR ---Consequential ---Accused was charged for committing murder of the son of
complainant by throwing him from a mountain--- On 14.03.2022 at 5:00 pm, the appellant
admitted his guilt in front of witnesses that the deceased did not fall down from the hills
but he murdered him ---On the other hand, the complainant reported the matter to the
police station on 01.04.2022 at 3:30 pm despite the fact that allegedly he was informed by witnesses on 14.03.2022 to the effect that the appellant had committed the murder of his son after a delay of eighteen days and that too when it took only twenty hours to travel from "J" (Jacobabad) Province of Sindh, and "T" (Turbat), Province of Balochistan
through ordinary transport means ---No explanation had been tendered as to why the
complainant waited for eighteen days for the lodgment of the FIR and nominating the present appellant ---Hence, under such circumstances, the element of deliberation and
consultation could not simply be ruled out of consideration--- Circumstances established
that the prosecution had failed to prove its case beyond any shadow of doubt ---Appeal
against conviction was allowed, in circumstances.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Extra -judicial confession doubtful -
--Accused was charged for committing murder of the son of complainant by throwing him
from mountain ---Complainant alleged in his report as well as in his statement that the
appellant admitted his guilt in front of two witnesses ---Prosecution produced one of the
said witnesses, according to his version three to four days after the funeral of the
deceased, he, other witness, and two other persons were sitting with appel lant and
inquiring about the death of deceased when appellant told them that the deceased did not fall down from the hills rather he had hit a stone on his head, who received injuries and later on succumbed to the injuries ---Said witness further stated that he also recorded a
video of the event, saved the same in a USB, and handed over the USB to the Investigation Officer ---Alleged admission of guilt of the appellant before said witness
was an informal admission, which was known as extra -judicial confession, which meant
an out of court statement which was adverse to the case of the person making it ---Said
piece of evidence was of no avail to the prosecution, and it was not understandable as to why the appellant made an extra -judicial confession before said witness, although he was
not an influential person--- Moreover, it did not appeal to a prudent mind as to what
prompted the appellant to confess his guilt before the said witness because, at that time, there was no evidence against the appellant regarding hi s involvement in the crime ---
Furthermore, at the time of the alleged extra -judicial confession made by the appellant,
the witness before whom he confessed his guilt did not try to catch hold of the appellant --
-Another most important and natural purpose of making an extra -judicial confession is to
seek help from a third person, and the same is usually sought from an influential person who has some authority/power in the society ---In the case in hand, the witness of the
extra- judicial confession was an ordina ry person --- Extra -judicial confession had never
been considered sufficient for recording a conviction on a capital charge unless it was strongly corroborated by tangible evidence coming from an unimpeachable source ---
Thus, such piece of evidence was entirely insufficient to maintain conviction on such a charge, more so, when it was a badly tainted one and appeared to be the job of the
Investigating Officer who usually indulge in such like police chicanery ---Circumstances
established that the prosecution had failed to prove its case beyond any shadow of doubt --
-Appeal against conviction was allowed, in circumstances.
(c) Criminal trial ---
----Extra -judicial confession ---Scope ---Extra -judicial confession is a weak type of
evidence and it can be procured at any time during the investigation when there is no
direct evidence available with the prosecution ---Moreover, the legal worth of the extra -
judicial confession is almost equal to zero, keeping in view the natural course of events, human behaviour, conduct, and probabilities in the ordinary course.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qanun -e-Shahadat (10 of 1984), Art. 129(g) ---Qatl-i-amd---Appreciation
of evidence ---Witnesses of extra- judicial confession not produced for evidence ---
Adverse presumption--- Accused was charged for committing murder of the son of
complainant by throwing him from a mountain--- In this case, the witness of extra -judicial
confession stated in his statement that the appellant admitted his guilt before him and one Mr. "A" and two other persons ---During cross -examination, said witness further stated
that at the time of the confession of the appellant, the Police Officials were also present,
and the Police Officials made a video recording ---Person's name who made the video was
"AG" ---Alleged witness of the confession of the appellant, was given up by the
prosecution, which created some questions ---Even "AG" and other Police Officials were
not produced by the prosecution ---Article 129(g) of Qanun -e-Shahadat, 1984, provided
that if any evidence available with the parties is not produced, then it will be presumed
that had that evidence been produced, the same would have gone against the party producing the same ---Trial Court while convicting the appellant also relied upon the
video clips allegedly of the appellant in the USB produced by witness ---Said video clip in
USB was run on a laptop computer in the Court, and it was observed by the Trial Court that Sindhi language was allegedly used by the appellant ---Trial Court did not translate
the Sindhi language into Urdu and also did not corroborate the same with the testimony of witness ---Nothing came on record that what was actually stated by the appellant in the
said recording ---Moreover, the prosecution also failed to produce the transcript of the
audio recording before the Trial Court ---Even otherwise, according to the report of
Forensic Science Laboratory, "No opinion could be made about the editing/genuineness in the audio contents of the video file, due to unavailability of intended forensic tools" ---
Said piece of evidence was of no avail to the prosecution's case ---Circumstances
established that the prosecution had failed to prove its case beyond any shadow of doubt --
-Appeal against conviction was allowed, in circumstances.
(e) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---No justification for the presence of
eye-witness at the scene of occurrence--- Chance witness ---Accused was charged for
committing murder of the son of complainant by throwing him from a mountain ---Case of
prosecution hinged upon the evidence of sole eye -witness of the alleged occurrence---
According to his version, on 10.03.2022, he was present on the roof of his house and watering the roof -top when he saw two persons scuffling with each other; that one of
them pushed the other from the mountain, who fell to the base of the mountain and became unconscious in injured condition, and the appellant was talking on the mobile phone ---Said witness mentioned the name of appellant as the accused and stated that due
to domestic issues, they were fighting ---Said witness allegedly procured a vehicle and
then the injured was sent to the hospital ---Said witness had not given any plausible
reason for his presence at the place and time of occurrence, and thus he was a chance witness ---Investigation Officer prepared the site plan of the place of occurrence, and the
house of the said witness did not figure in the site plan ---Circumstances established that
the prosecution had failed to prove its case beyond any shadow of doubt ---Appeal against
conviction was allowed, in circumstances.
(f) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd--- Criminal Procedure Code (V of 1898), S. 161---
Appreciation of evidence ---Delay of two months and twenty days in recording the
statement of witness ---Effect ---Accused was charged for committing murder of the son of
complainant ---Record showed that the appellant and one "EB" brought the injured to the
hospital ---Appellant and deceased were also doing labor work at the house of "EB" ---
Name of said witness was not given in the FIR nor in the site plan ---Said witness, despite
witnessing the incident, remained silent for nearly two months and twenty days from the
alleged occurrence and did not report the matter to the police despite the fact that he stated in his cross -examination that he was acquainted with the local police ---Said
witness further stated in cross -examination that his motor garage was at a distance of two
minutes on foot from the police station--- Investigation Officer also stated during cross -
examination that he was already known to said witness ---Had said witness been present at
the spot and time of the alleged occurrence, he must have informed the police about the occurrence, which admittedly was not done ---Statement under S. 161, Cr.P.C., of the said
witness was also recorded on 30.05.2022, i.e. after a delay of two months and twenty
days of the alleged occurrence--- Prosecution failed to furnish any plausible explanation
in that regard ---Such aspect of the case rendered the case extremely doubtful ---Such
delay in recording the statement of witness was fatal to the prosecution and was not
worthy of reliance ---Circumstances established that the prosecution had failed to prove
its case beyond any shadow of doubt ---Appeal against conviction was allowed, in
circumstances.
Muhammad Asif v. The State 2017 SCMR 486; Muhammad Sadiq v. The State
PLD 1960 SC 223; Tariq Gul v. Ziarat Gul 1976 SCMR 236; Muhammad Iqbal v. The State 1984 SCMR 930; Haroon alias Harooni v. The State and another 1995 SCMR 1627
and Muhammad Khan v. Maula Bakhshah 1998 SCMR 570 rel.
(g) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Statements of witness
contradictory to the extra -judicial confession of accused ---Accused was charged for
committing murder of the son of complainant ---Record showed that the statement of the
eye-witness was contradictory to the alleged extra- judicial confession of the appellant,
who stated in his statement that the appellant admitted his guilt to the effect that he hit a stone on the head of deceased, however eye -witness stated in his statement that the
appellant pushed the deceased from the mountain ---Statement of eye- witness did not
inspire confidence and appeared to be manipulated and procured--- Circumstances
established that the prosecution had failed to prove its case beyond any shadow of doubt --
-Appeal against conviction was allowed, in circumstances.
Shakeel Taj for Appellant.
Sudheer Ahmed, A.P.G. for the State.
Date of hearing: 6th October, 2023.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant Bashir Ahmed, son of Gul
Muhammad, was involved in case FIR No.68/2022 registered under sections 302, P.P.C. with PS City Turbat and was tried by learned Sessions
Judge Makran at Turbat ("trial court"). The trial court seized with the
matter in terms of the judgment dated 14.04.2023 and convicted and sentenced the
appellant in the following terms:
"18...therefore, the accused Bashir Ahmed son of Gul Muhammad is convicted
under section 302(b) of the P.P.C. as Ta'zir and sentenced to imprisonment for life. The convict is directed to pay compensation Rs.500000/ - (Rupees Five Lacs) to
legal heirs of deceases as envisaged under section 544 -A, Cr.P.C. In case of
default of non -payment of compensation, the convict shall further suffer S.I for six
(06) months. Benefit of section 382 -B Cr.P.C is extended to him... "
Aggrieved from the impugned judgment, the appellant has assailed
his conviction and sentence through the titled jail appeal filed by him through
Superintendent District Prison Turbat.
2. The prosecution story, as disclosed in the FIR (Ex.P/6- A) recorded on the written
report of the complaint (Ex.P/4 -A), namely Bagh (PW -4), is that he is a resident of Thal
District, Jacobabad Sindh. His son Ghulam Sarwar and his son- in-law Bashir Ahmed
(appellant), son of Gul Muhammad, went to Turbat for labor work in the month of March.
On 10.03.2022, he was informed by the appellant via telephone that he and the deceased Ghulam Sarwar had gone to the mountain area in Chosak, where the deceased Ghulam
Sarwar had fallen from the hill and sustained injuries, whom he had taken to the hospital
for treatment but he died during treatment. The appellant brought the dead body of the
deceased Ghulam Sarwar to his native village. On 14.03.2022 at 5:00 pm evening, the appellant admitted before Saddam and Azizullah that he had injured Ghulam Sarwar with a stone, and the appellant also admitted that due to domestic issues, he committed the
murder of his brother -in-law. Hence, the crime report.
After completion of the usual investigation, the challan was submitted before the
trial court. The charge was framed against the appellant, to which he did not plead guilty
and claimed trial. At the trial, the prosecution produced six witnesses in all; thereafter
appellant's statement was recorded under section 342, Cr.P.C wherein he denied the
prosecution's allegations and truthfulness of the witnesses produced by the prosecution;
however, the appellant neither recorded his statement as envisaged under section 340(2),
Cr.P.C nor produced ay witness in his defense. On conclusion of the trial, after hearing the learned counsel for the parties, the appellant was convicted and sentenced by the trial
court, as mentioned in the opening para of this judgment.
3. We have heard the learned counsel for the parties and perused the available record
with their able assistance.
4. In order to establish the charge, the prosecution produced six witnesses. Dr. Abdul
Khaliq (PW -1), who examined the dead body of deceased Ghulam Sarwar, Abdul Ghafoor
(PW -2), who is the eye -witness of the occurrence, Hamid Ali constable (PW -3), who is
Mushir of disclosure memo and pointation made by the appellant, Bagh, son of Wali
(PW -4) who is the complainant of the case, Saddam Hussain (PW -5) who is witness of
the extra- judicial confession of the appellant and Noor Bakhsh IP (PW -6), who conducted
investigation of the case.
5. Now, let us divert our attention to the ocular account produced by the prosecution.
From the record, the homicidal death of the deceased and his injuries have been established, and from the statement of PW -1 Dr. Abdul Khaliq rather, this fact was not
disputed by the defense counsel. The mode and manner of the occurrence have been narrated by the complainant (PW -4) to the effect that on 10.03.2022, he was informed by
the appellant that he and Ghulam Sarwar had gone to the mountain area of Chosak, where Ghulam Sarwar fell down from the hill and sustained injuries, and the dead body of the
deceased was brought to his native village for funerals. On 14.03.2022 at 5:00 pm, the appellant admitted his guilt in front of Saddam Hussain (PW -5) and Azizullah, that the
deceased Ghulam Sarwar did not fall down from the hills but he murdered him. On the other hand, the complainant reported the matter to the City Police Station Turbat on 01.04.2022 at 3:30 pm despite the fact that allegedly he was informed by Saddam Huss ain and Azizullah on 14.03.2022 to the effect that the appellant had committed the
murder of his son after a delay of eighteen days and that too when it takes only twenty hours to travel from Jacobabad province of Sindh, and Turbat Province of Balochistan through ordinary transport means. No explanation has been tendered as to why the complainant waited for eighteen days for the lodgment of the FIR and nominating the present appellant; hence, under such circumstances, the element of deliberation and consult ation cannot simply be ruled out of consideration. A question also arises that if the
complainant knew about the culprit, then why did he not lodge the FIR promptly? The main object of prompt registration of an FIR is to rule out the possibility of deliberation,
consultation, and inquiry. The element of delay in lodging the crime report is treated with
caution because there is a tendency to involve innocent people during the interval.
6. The complainant/PW -4 alleged in his report as well as in his statement that the
appellant admitted his guilt in front of Saddam Hussain, son of
Sohnu and Azizullah. The prosecution produced Saddam Hussain as PW -5. According
to his version, three to four days after the funerals of the deceased Ghulam Sarwar, he, Azizullah, and two other persons were sitting with Bashir Ahmed (appellant) and inquiring about the death of Ghulam Sarwar when Bashir Ahmed told them that the deceased Ghulam Sarwar did not fall down from the hills rather he had
hit a stone on his head, who received injuries and later on succumbed to
the injuries. He further stated that he also recorded a video of the event, saved the
same in a USB, and handed over the USB to the investigation officer.
7. The alleged admission of guilt of the appellant before PW -5 is an informal
admission, which in our system is known as extra -judicial confession, which means an
out of court statement which is adverse to the case of the person making it. The reason that admissions are admissible by way of exception to the hearsay rule is that it is thought that people rarely say things adverse to themselves unless those things are true. Illustration (a) to Article 119 of Qanun -e-Shahadat Order, 1984 puts the burden on the
prosecution to prove the extra -judicial confession made by the accused to a third party;
such burden requires a higher degree of probability, particularly when the case is of
circumstantial evidence. It is a natural curiosity to ask why a person of sane mind should at all confess. No doubt, the phenomenon of confession is not altogether unknown but being a human conduct, it had to be visualized, appreciated, and consequent upon purely in the background of a human conduct.
8. Why should a person guilty of an offence entailing capital punishment confess?
There could be a few motivating factors like: (i) to boast off (ii) to ventilate the suffocating conscience, and (iii) to seek help when actually trapped by investigation. Boasting off is very rare in such- like heinous offences where fear dominates and is
always done before an extremely confident as well as the one who shares close secrets. To make a confession in order to give vent to one's pressure on the mind and conscience is another aspect of the same psyche. One gives vent to one's feelings, and one removes catharses only before a strong and close confident. It is the case of the prosecution that, three to four days after the funeral of the deceased, the appellant allegedly made his extra- judicial con -fession before Saddam Hussain (PW -5) and Azizullah (not produced by
the prosecution before the court). The said piece of evidence is of no avail to the prosecution, and it is not understandable as to why the appellant made an extra -judicial
confession before PW -5, although he was not an influential person. Moreover, it does not
appeal to the prudent mind as to what prompted the appellant to confess his guilt before the said PW because, at that time, there was no evidence against the appellant regarding his involvement in this crime. Furthermore, at the time of the alleged extra -judicial
confession made by the appellant, the witness before whom he confessed his guilt did not try to catch hold of the appellant. Another most important and natural purpose of making an extra- judicial confession is to seek help from a third person, and the same is usually
sought from an influential person who has some authority/power in the society, but in the case in hand, the witness of the extra -judicial confession, i.e. PW- 5 was an ordinary
person. Furthermore, extra -judicial confession is a weak type of evidence, and it can be
procured at any time during the investigation when there is no direct evidence available to the prosecution. Moreover, the legal worth of the extra -judicial confession is almost
equal to zero, keeping in view the natural course of events, human behaviour, conduct, and probabilities in the ordinary course.
Needless to remark that extra -judicial confession has never been considered
sufficient for recording a conviction on a capital charge unless it is strongly corroborated by tangible evidence coming from an unimpeachable source; therefore, in our view, this piece of evidence is entirely insufficient to maintain conviction on such a charge, more so, when it is badly tainted one and appears to be the job of the investigating officers who
usually indulge in such like police chicanery. The possibilities of boasting and ventilating
in the circumstances are excluded from consideration. Reliance is placed on case laws titled as "Hamid Nadeem v. The State" (2011 SCMR 1233), "Imran alias Dully and another v. The State and others" (2015 SCMR 155), Muhammad Nawaz and others v. The State and others" (2016 SCMR 267) and "Nasir Javaid and another v. The State" (2016
SCMR 1144)
9. It is worthwhile to mention here that Saddam Hussain (PW -5) stated in his
statement that the appellant admitted his guilt before him and one Azizullah and two
other persons. During cross -examination, he further stated that
at the time of the confession of the appellant, the police officials were
also present, and the police officials made a video recording. The person's name who
made the video is Ali Gul. There is another aspect of the matter that Azizullah, the
alleged witness of the confession of the appellant, was given up by the prosecution, which creates some questions. Even Ali Gul and other police officials were
also not produced by the prosecution. Article 129(g) of Qanun -e-Shahadat Order, 1984
provides that if any evidence available with the parties is not produced, then it shall be presumed that had that evidence been produced, the same would have been gone against the party producing the same.
While convicting the appellant, the trial court also relied upon the video clips
allegedly of the appellant in the USB produced by PW5 as Art.P/5.
The video clip in the said USB was run on a laptop computer in the court, and it was
observed by the trial court that
The trial court did not translate the Sindhi language into Urdu and also did not
corroborate the same with the testimony of PW- 5. Nothing came on record that what was
actually allegedly stated by the appellant in the said recording.
10. Moreover, the prosecution also failed to produce the transcript of the audio
recording before the trial court. Even otherwise, according to the report of Punjab Forensic Science Laboratory (ExP/6 - E), "No opinion could be made about the
editing/genuineness in the audio contents of the video file mentioned above contained in Item #1 due to unavailability of intended forensic tools." In view of the above circumstances, the said piece of evidence is of no avail to the prosecution's case.
11. Apart from the above evidence, the case of prosecution also hinges upon the
evidence of Abdul Ghafoor (PW -2), who is the sole eye -witness of the alleged
occurrence. According to his version, on 10.03.2022, he was present on the roof of his house and watering the roof -top when he saw two persons scuffling with each other. One
of them pushed the other from the mountain, who fell to the base of the mountain and went unconscious in injured condition, and the appellant was talking on the mobile phone. He asked the name of the accused, who told him his name was Bashir Ahmed who told him that due to domestic issues, they were fighting. He further stated that he procured a vehicle, and then the injured was sent to the hospital. The above witness has not given any plausible reason for his presence at the place and time of occurrence. He is a chance witness. The investigation officer prepared the site plan of the place of occurrence, i.e., Ex.P/6- C. The house of the said witness is not figured in the site plan.
According to the site plan the place -A is a mountain, place -B is the base of the mountain,
place -C is the house of one Elahi Bakhsh, place -D is a water stream. According to the site
plan, there is only one house situated near the place of occurrence, which belongs to one Elahi Bakhsh.
12. The appellant, Bashir Ahmed, and one Elahi Bakhsh brought the injured to the
hospital. It is worthwhile to mention here that the appellant and deceases were also doing labor work at the house of Elahi Bakhsh. The name of PW -2 is not given in the FIR nor in
the site plan. It is noted with grave concern that this witness, despite witnessing the incident, remained silent for nearly two months and twenty days from the alleged
occurrence. He did not report the matter to the police despite the fact that he stated in his
cross -examination that he is acquainted with Turbat police. He further stated in cross -
examination that his motor garage is at a distance of two minutes on foot from the police station. The investigation officer also stated during cross -examination that he is already
known to PW -2. Had he been present at the spot and time of the alleged occurrence, he
must have informed the police about the occurrence, which admittedly was not done.
13. Apart from the above, the statement under section 161, Cr.P.C. of the above -stated
PW was also recorded on 30.05.2022 after a delay of two months and twenty days of the alleged occurrence. The prosecution failed to furnish any plausible explanation in this regard. This aspect of the case renders the case extremely doubtful. The above witness remained mum for a long time and recorded his statement under section 161, Cr.P.C with considerable delay. The delay of even one or two days without explanation in recording the statements of witnesses has been found fatal for the prosecution and not worthy of reliance by the august Supreme Court in the case of Muhammad Asif v. The State reported as (2017 SCMR 486) as under:
"There is a long line of authorities / precedents of this court and the High courts that even one or two days unexplained delay in recording the statement of eye -
witnesses would be fatal and testimony of such witnesses cannot be safely relied upon."
In this regard, reliance can also be placed on "Muhammad Sadiq v. The State
(PLD 1960 SC 223), Tariq Gul v. Ziarat Gul (1976 SCMR 236), Muhammad Iqbal v. The State (1984 SCMR 930) and Haroon alias Harooni v. The State and another (1995 SCMR 1627).
Similarly, it has been settled by the August Supreme Court of Pakistan in
Muhammad Khan v. Maula Bakhshah (1998 SCMR 570) that:
"It is settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P. C is recorded with delay without offering any plausible explanation."
Even otherwise, the statement of PW -2 is contradictory with the alleged extra -
judicial confession of the appellant before PW -5 Saddam Hussain, who stated in his
statement that the appellant admitted his guilt to the effect that he hit a stone on the head of the deceased; however, PW -2 Abdul Ghafoor stated in his statement that the appellant
pushed the deceased from the mountain.
14. If the statement of Abdul Ghafoor (PW -2) is analyzed, scanned, and directed, it
will be seen that it also does not inspire confidence and appears to be manipulated and procured one.
All the above -narrated facts and circumstances, when evaluated on judicial
parlance, reflect that the prosecution has miserably failed to establish the culpability of the appellant in the instant case through reliable, trustworthy, and confidence -inspiring
evidence.
15. From the facts and circum -stances narrated above, we are persuaded to hold that
the conviction passed by the trial court against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per the dictates of the law, the benefit of the doubt is to be extended in favour of the accused. Resultantly, Criminal Jail Appeal No.(T) 10/2023 filed by the appellant is allowed, and after setting aside the conviction and sentence recorded by the trial court in terms of the judgment dated 14.04.2023 passed by Sessions Judge Makran at Turbat in Murder Case No. 06/2022, the appellant is acquitted of the charge in FIR No. 68/2022 PS City Turbat under sections 302, P.P.C. The appellant Bashir Ahmed, son of Gul Muhammad, is ordered to be released forthwith if not required in any other case.
JK/22/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,
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