2025 Y L R 645
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
MIR HASSAN---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 54 of 2023, decided on 25th November, 2024.
(a) Criminal trial ---
----Circumstantial evidence---Scope ---Circumstantial evidence must be of such a nature,
where different pieces of evidence must make a chain of events, where one end of it
touches the dead body and the other end the neck of accused---If such link is found missing, the whole chain breaks down and no conviction can be recorded on such circumstantial evidence.
Imran alias Dullay v. The State 2015 SCMR 155; Azeem Khan v. Mujahid Khan 2016
SCMR 274 and Hashim Qasim v. The State 2017 SCMR 986 rel.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Medical evidence doubtful ---
Accused was charged for committing murder of the deceased ---Although the medical
evidence confirmed the homicidal death of deceased, but it did not co- incide with the
disclosure of appellant and confessional statement of co- accused, which otherwise had
been disbelieved ---Human blood found on the bloodstained articles secured through
recovery memos albeit substantiated the unnatural death of the deceased, but it did not substantiate the murder of deceased with a sharp weapon in view of injuries observed by Medical Officer ---Medical Officer had also not opined that the cause of death of the
deceased was due to the said injuries, but opined that the death of the deceased was due to cardiorespiratory arrest, which was not understandable in view of the said opinion---Medical Officer had shown use of weapon to be bullet as well as a sharp object, which was astonishing and confusing, thus it did not in any manner help the prosecution case rather made the Medico -Legal Certificate cloudy ---Appeal against conviction was
allowed, in circumstances.
(c) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Circumstantial evidence ---Video
clip of deceased not sent for forensics ---Accused was charged for committing murder of
the deceased ---Deposition of complainant was relevant, but he was not the eye -witness
of the occurrence---Said witness lodged the report with the police station on the basis of information received by him on a phone call, regarding murder of deceased---According to said witness, the deceased had a Facebook ID with the name of "MP", who on the
fateful day had uploaded and posted a live video on his account, which went on the internet, showing the deceased with one unknown person, having liquor and a knife could also be seen in the said video clip---Said witness stated that he had recorded the said video clip in USB and handed over the same to the police, besides a box of mobile phone of deceased ---Autopsy of the deceased was not conducted on his request ---Said
witness further stated that the deceased had left his wife and children and had come to
place "H" alone ---Said witness raised finger towards appellant and stated that he was the
person, whom he had seen in the said video ---During cross -examination, said witness
admitted that he did not state that he could identify the person visible in the said video---Landlord of the house, where the murder was committed also saw nothing---Prosecution had failed to establish the source of recording the said video and its safe custody---Moreso, since the prosecution had failed to send the said video f or forensic analysis to
the Forensic Science Laboratory in order to rule out the said video being doctored or an
outcome of Artificial Intelligence etc., thus placing reliance on such piece of evidence would not be safe, particularly in a case, where punishment of a capital sentence was involved---Merely seeing the appellant in the company of the deceased, would itself not be sufficient as proof of the guilt ---Moreover, there was also no evidence that on which
date the said video clip was made and put on the website ---Appeal against conviction
was allowed, in circumstances.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S. 164--- Qatl-i-amd---Appreciation
of evidence ---Confessional statement of co -accused ---Infirmities ---Accused was charged
for committing murder of the deceased---Record showed that the confessional statement of acquitted accused, was recorded under S.164, Cr.P.C, however the Trial Court had disbelieved the confessional statement on the basis that the same was an exculpatory statement, which did not implicate the maker ---Acquitted accused was arrested on
24.08.2020, whereas his confessional statement was recorded on 04.09.2020 with a delay of eleven days and that too without explanation---Besides above, acquitted accused admitted that he was beaten by the police ---Perusal of confessional statement and
certificate thereof did not show that he was afforded with an opportunity for reflection or his handcuffs were removed at the time of recording of his confessional statement, henceforth, the Trial Court had rightly discarded the confessional statement of co-accused for being inadmissible, which otherwise seemed to have not been recorded
voluntarily ---Furthermore, the confessional statement made by co -accused made him a
witness of an extra judicial confession made before him by the appellant, but the
prosecution instead of making him a prosecution witness made him an accused---Appeal against conviction was allowed, in circumstances.
Hashim Qasim v. The State 2017 SCMR 986 rel.
(e) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Recovery of weapon of offence on
the disclosure of accused---Inconsequential ---Accused was charged for committing
murder of the deceased ---Record showed that bloodstained knife was recovered on the
disclosure of appellant, whereof Forensic Science Laboratory Report had been procured, showing the knife to be stained with human blood---Forensic Science Laboratory Report was inconclusive with regard to the opinion as to whether the knife was stained with the blood of deceased or otherwise, thus in absence thereof mere recovery of knife would merely constitute an offence punishable under S.13- E of the Pakistan Arms Ordinance,
1965, but would not be relevant as a corroborative piece of evidence to substantiate the indictment of murder of deceased ---Recovery of incriminating weapons, even if stained
with blood could not solely establish guilt of the accused, unless corroborated by a forensic report definitively linking the blood to the deceased on the weapon---Appeal against conviction was allowed, in circumstances.
Khalid Javid v. The State 2003 SCMR 1419; Hamid Nadeem v. The State 2011
SCMR 1233 and Naveed Asghar v. The State PLD 2021 SC 600 rel.
Naureen Fatima for pauper Appellant.
Yahya Baloch, Additional Prosecutor General ("APG") for the State.
Date of hearing: 14th November, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Through this judgment, we aim to dispose of
the captioned Criminal Jail Appeal brought before us pursuant to the judgment dated 22nd June, 2023 ("impugned judgment") rendered by learned Additional Sessions Judge -II
Lasbella at Hub ("Trial Court"), emanating from an FIR bearing No.256 of 2020 (Ex.P/11- A)
registered with Police Station City, Hub, whereby the appellant was convicted and sentenced
under section 302 (b) of the Pakistan Penal Code, 1860 ("P.P.C") to suffer R.I for life as
"Tazir" and to pay compensation in terms of section 544- A of the Criminal Procedure Code,
1898 ("Cr.P.C") in the sum of Rs.500,000/ - (Five hundred thousand) to the legal heirs of the
deceased or to suffer six (06) months SI with the premium of section 382 -B of Cr.P.C.
2. Condensed but relevant facts necessary for disposal of the case in hand are that
complainant Attaullah SI (PW -1) got lodged the FIR ibid on the basis of marasila (Ex.P/1-
A), averring therein that on 09.08.2020 at about 01:30 pm, he received information that some bad oder was smelling from a house situated at Punjabi Mohalla, Hub, which is locked, whereafter, he along with police officials reached at the said house, broke the lock, entered into a room and found a dead body lying on the cot, having multiple wounds on the body. According to complainant (PW -1), he found the room covered with blood, wherein he found
foot prints of a woman, an ankle bracelet and a CNIC of deceased Punhal Khan.
3. After registration of FIR (Ex.P/11 -A), Skindar Shair SI investigation officer ("IO")
(PW -11) was entrusted with the investigation, who being already present at the spot prepared
site plan (Ex.P/11- B), secured blood from the floor through tissues, a light green shirt and
CNIC, a broken Samsung Mobile Phone, an ankle bracelet, three empty bottles of wine along with glasses, a lock, blood stained pillow and a cot vide recovery memos (Ex.P/6- A),
(Ex.P/6 -B), (Ex.P/6- C), (Ex.P/6- D), (Ex.P/6 -E) and (Ex.P/6- F) respectively. He also
prepared the inquest report of deceased. According to IO (PW -11), he sent the dead body of
deceased to Civil Hospital, Hub for postmortem, recorded the statement of the witnesses under section 161 of Cr.P.C and obtained death certificate of deceased, whereafter got printed pictures of deceased captured at the spot, which were secured through recovery memo (Ex.P/5 -A). On 10.08.2020, Imam Bakhsh (PW -2) handed over him a box of Oppo
mobile phone and a USB, containing video clip of deceased, which were secured vide recovery memo (Ex.P/8- A).
On 15.08.2020, the appellant was arrested, who made disclosure (Ex.P/7- A) and got
recovered the crime weapon i.e., knife and broken mobile of deceased from his house situated at Ameerabad, thus a separate case under section 13 -E of the Arms Ordinance, 1965
was registered. On 24.08.2020, co- accused Muhammad Asif was arrested, who got recorded
his statement under section 164 of Cr.P.C before Muhammad Iqbal Khilji, learned Ex-Judicial Magistrate ("JM") -I, Hub (PW -10), who produced confessional statement,
questionnaire and certificate thereof as (Ex.P/10 -A), (Ex.P/10- B) and (Ex.P/10- C)
respectively. On 01.10.2020, another co- accused Mujahid was arrested, who made disclosure
(Ex.P/9 -B) and on his pointation memo (Ex.P/9- B) was prepared. Skindar Shair IO (PW -11)
produced FIR (Ex.P/11 -A) and Forensic Science Laboratory Crime Branch Balochistan,
Quetta ("FSL, Quetta") report (Ex.P/11 -C).
4. On conclusion of the investigation, the appellant along with co- accused persons
Muhammad Asif and Mujahid were put on trial, whereas the other accused persons namely Imdad, Noor Hassan and Deedar remained away from course of justice, as such, they were declared proclaimed offenders.
On commencement of trial, the appellant along with co- accused Muhammad Asif and
Mujahid denied the indictment, whereafter the prosecution in order to drive home the charge produced as many as eleven (11) witnesses and at the end of the prosecution side, they were examined under section 342 of Cr.P.C. They neither opted to record their statements on oath nor produced any defence, henceforth on conclusion of the trial, the Trial Court vide impugned judgment acquitted co- accused persons namely Muhammad Asif and Mujahid,
while extending benefit of doubt, whereas convicted and sentenced the appellant in the terms mentioned in para supra.
5. Heard. Record gone through with the able assistance of learned counsel for the
adversarial parties.
6. Admittedly, the murder of deceased Punhal Khan has gone un- witnessed and the case
rests upon the circumstantial evidence. We are conscious that where the case depends upon circumstantial evidence, extraordinary care and caution is required, therefore, while re-appraisal of the evidence on record, we have taken utmost possible precaution so to avoid and rule out any wrong conclusion because there is always fabrication of circumstantial
evidence. As held by the apex court that the circumstantial evidence is usually not of a
standard and quality, thus it is dangerous to explicitly place reliance upon such evidence. The circumstantial evidence must be of such a nature, where different pieces of evidence must make a chain of events, where one end of it touches the dead body and the other end the neck of accused and if such link is found missing, the whole chain breaks down and no conviction
can be recorded on such circumstantial evidence. In this regard, we are fortified with the
view expounded in the case of "Imran alias Dullay v. The State"¨ (2015 SCMR 155), "Azeem
Khan v. Mujahid Khan" (2016 SCMR 274) and "Hashim Qasim v. The State" (2017 SCMR 986).
7. The entire edifice of the prosecution case hinges upon the circumstantial evidence,
based on the statements of Imam Bakhsh (PW -2) and Lal Muhammad (PW -3), confessional
statement of co -accused Muhammad Asif recorded under section 164 of Cr.P.C (Disbelieved)
coupled with medical evidence of Dr. Waqar Ahmed (PW -4) and recovery of crime weapon
i.e., knife (Ex.P/7- B) in consequence of appellant's disclosure (Ex.P/7 -A), and last but not
the least, recovery of blood of deceased, glasses (steel and glass) and pillow vide recovery memos (Ex.P/6 -A), (Ex.P/6 -D) and (Ex.P/6 -F) respectively.
8. The unnatural death of deceased has been not disputed. However, in order to
substantiate the unnatural death of the deceased, the prosecution produced Dr. Waqar Ahmed Medical Officer (PW- 4), who examined the deceased on 09.08.2020 at about 2:30 pm and
issued Medico Legal Certificate ("MLC") (Ex.P/4 -A), wherein he observed the following
injuries;
"Injuries:
• Long cut of L/W from right side of face to the left lateral side of forehead witih
deep cut.
• Lacerated wound on right inner side of hand.
• Right thumb cutted down.
• Minor scratches sun (sic) on penis
Probable cause of death;
• Cardiorespiratory arrest?
• Advised P.M for actual case (sic) of death.
Weapon used:
• Bullet/sharp
Duration of injuries:
• 3-5 days?"
9. Although the medical evidence confirms the homicidal death of deceased, but it does
not co- inside with the disclosure of appellant and confessional statement of co- accused
Muhammad Asif, which otherwise has been disbelieved. The human blood found on the bloodstained articles secured through recovery memos (Ex.P/6- A), (Ex.P/6- D) and (Ex.P/6-
F) respectively albeit substantiates the unnatural death of the deceased, but it does not substantiate the murder of deceased Punhal Khan with a sharp weapon for the injuries observed by Dr. Waqar Ahmed Medical Officer (PW- 4) are lacerated wound of long cut from
the right side of face to the left lateral side of forehead, a lacerated wound on the right inner side of the hand, including minor scratches on the penis and a cut on the right thumb. He has also not opined the cause of death of the deceased was due to the aforesaid injuries, but held the death of the deceased due to Cardiorespiratory arrest, which is not understandable in view of the above opinion. Dr. Waqar Ahmed (PW -4) has shown use of weapon to be bullet
as well as sharp, which is astonishing and confusing, thus it does not in any manner help the prosecution case rather makes the MLC cloudy.
10. Coming to the circumstantial evidence, the deposition of Imam Bakhsh (PW -2) is
relevant, but he is not the eye- witness of the occurrence. He lodged the report with the police
station on the basis of information received by him on a phone call, regarding murder of
deceased Punhal Khan at Hub. According to him, the deceased had a Facebook ID with the name of Mir Papan, who on the fateful day had uploaded and posted a live video on his
account, which went on the internet, showing the deceased with one unknown person, having
liquor and that a knife could also been seen in the said video clip. He stated that he had
recorded the said video clip in USB and handed over the same to the police, besides a box of mobile phone of deceased Punhal Khan. The autopsy of the deceased was not conducted on his request. He further stated that the deceased had left his wife and children at Dera Murad Jamali and had come to Hub alone. He raised fingure towards appellant Mir Hassan and stated that he was the person, whom he saw in the said video. During cross -examination, he
admitted that he did not state that he could identify the person visible in the said video. Lal Muhammad (PW -3) is the landlord of the house, where the murder was committed. He also
saw nothing. He denied that he is not the landlord.
The evidentiary value of the testimony of Imam Bakhsh (PW -2) relates to lodging of
the FIR regarding murder of deceased Punhal Khan and handing over the video clip to the
police, wherein besides deceased, appellant was seen, while having liquor, where a knife was
also seen by him, but such statement would not hold the appellant guilty of indictment of
murder, more particularly, when the prosecution has failed to establish the source of
recording the said video and its safe custody. Moreso, since the prosecution has failed to
send the said video for forensic analysis to the FSL in order to rule out the said video being doctored or an outcome of Artificial Intelligence etc, thus placing reliance on such piece of evidence would not be safe, particularly in a case, where punishment is of a capital sentence
is involved. That apart, merely seeing the appellant in the company of the deceased, would
itself not be sufficient as a proof of the guilt. There is also no evidence that on which date the
said video clip was made and put on the website.
11. Now coming to the most important piece of evidence i.e., the confessional statement
of acquitted accused Muhammad Asif recorded under section 164 of Cr.P.C, it may be observed that the Trial Court has disbelieved the confessional statement on the basis that the same is an exculpatory statement, which does not implicate the maker and that the acquitted accused Muhammad Asif was arrested on 24.08.2020, whereas his confessional statement was recorded on 04.09.2020 with a delay of eleven days and that too without explanation. Besides above, Muhammad Asif, while replying to question No.4 of questionnaire admitted that he was beaten by the police and that perusal of confessional statement and certificate thereof does not show that he was afforded with an opportunity for reflection or his handcuffs were removed at the time of recording his confessional statement, henceforth, the Trial Court has rightly discarded the confessional statement of co-accused Muhammad Asif for being inadmissible, which otherwise seems to have not
been got recorded voluntarily.[SEE; "Hashim Qasim v. The State" (2017 SCMR 986)].
Furthermore, the confessional statement made by co -accused Muhammad Asif makes
him a witness of an extra judicial confession made before him by the appellant, but the prosecution instead of making him a prosecution witness made him an accused.
12. The next and most crucial evidence produced by the prosecution is disclosure of
appellant and recovery of bloodstained knife, whereof FSL, Quetta report (Ex.P/11- C) has
been procured, showing the knife to be stained with human blood. The FSL, Quetta report (Ex.P/11- C) is inconclusive with regard to the opinion as to whether the knife was stained
with the blood of deceased or otherwise, thus in absence thereof mere recovery of knife would merely constitute an offence punishable under section 13 -E of the Arms Ordinance,
1965, but would not be relevant as a corroborative piece of evidence to substantiate the indictment of murder of deceased Punhal Khan. The August Supreme Court of Pakistan in the case of "Khalid Javid v. The State" (2003 SCMR 1419) held that recovery of incriminating weapons, even if stained with blood as cannot solely establish guilt of the accused, unless corroborated by a forensic report definitively linking the blood to the deceased on the weapon.
Similarly, the apex court in the case of "Hamid Nadeem v. The State" (2011 SCMR
1233) rejected the recovery of bloodstained clothes of the accused as incriminating piece of
evidence, while observing that the bloodstains on the recovered clothes were not got matched
with the blood of the deceased.
Likewise, the apex court in the case of "Naveed Asghar v. The State" (PLD 2021 SC
600) observed that a weapon recovered with bloodstains cannot on its own substantiate the guilt of the accused, unless a forensic report conclusively establishes that the blood of the victim matches with the weapon stained with blood.
13. Epitome of the above discussion is that the prosecution has failed to drive home the
indictment against the appellant, thus the reasons drawn by the Trial Court being contrary to law and facts so highlighted hereinabove are unsustainable, therefore, the judgment impugned herein is liable to be set at naught.
14. For what has been discussed hereinabove, the appeal is allowed and consequently, the
impugned of conviction passed by the Trial Court dated 22.06.2023 is set aside and the appellant is acquitted of the charge.
The appellant be released forthwith, if not incarcerated in any other case.
JK/152/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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