2025 Y L R 984
[Balochistan]
Before Muhammad Hashim Khan Kakar, C.J and Shaukat Ali Rakhshani, J
ABDUL QAYUM ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 30 and Murder Reference No. 02 of 2023, decided on 23rd July,
2024.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Sole eye -witness evidence of ---Not
reliable ---Accused was charged for committing murder of the brother of complainant ---
Sole eye -witness testified that he was working with the deceased in his clinic ---
According to said witness, on 05.11.2021, while he was present in the clinic, at about 06:45 pm, he heard 3- 4 fire shots, whereafter he saw the deceased lying on the floor; he
saw a person with a pistol in his hand, who ran away, having a trimmed bear along with a child ---During cross -examination, said witness admitted that he was cousin of the
deceased ---Defence denied presence of said witness on the crime scene---Eye -witness did
not give the detailed description of the culprit--- Admittedly, after the arrest of the
appellant on 07.11.2021, he was not put to the test of identification parade, thus mere identification in the Court was unworthy of reliance ---Circumstantial witness did not
mention about his presence at the relevant time, therefore, his presence became doubtful --
-Appeal against conviction was allowed, in circumstances.
The State v. Subharo 1993 SCMR 585; Nasir Mehmood v. The State 2008 YLR 1755
and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.
(b) 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 accused ---Infirmities ---Accused was charged for
committing murder of the brother of complainant ---Judicial Magistrate recorded the
confessional statement of appellant on 18.11.2021 ---Judicial Magistrate produced
forwarding letter, proforma of the questionnaire, confessional statement of appellant under S.164 Cr.P.C and certificate ---Admittedly, neither in the proforma of the
questionnaire nor in the certificate it was mentioned that in case the appellant did not record his confessional statement, he would not be handed over back to the police, which was an incurable illegality, making the confessional statement unworthy of credence---Moreover, during cross -examination, Judicial Magistrate admitted that Investigating
Officer was present along with the accused in the Court room, when request for recording his confessional statement was made ---Judicial Magistrate also admitted that while
recording confessional statement of the appellant, her gunman was present in her chamber and that earlier accused was produced for grant of police remand, but the appellant did not volunteer to record his confessional statement ---Judicial Magistrate did
not state in her examination -in-chief or in the certificate that after recording confessional
statement, to whom the custody of the appellant was handed over for remanding him into judicial custody ---Thus, the confessional statement of the appellant was unworthy of
reliance as it was not only inadmissible, but seemed not to have been recorded voluntarily without any duress and promise ---Appeal against conviction was allowed, in
circumstances.
Hashim Qasim v. The State 2017 SCMR 986 rel.
(c) 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 brother of complainant ---Investigation Officer testified that during
investigation on 16.11.2021, appellant made a disclosure that he made four fire shots with
a TT pistol, which he could get recovered, henceforth, the appellant got recovered the
crime weapon from a washing machine under the clothes along with a magazine and four
live rounds, which were secured through recovery memo ---Investigation Officer sent the
same for analysis to the Forensic Science Laboratory, which were received in the office
of Forensic Science Laboratory, on 06.12.2021, whereof positive Forensic Science Laboratory Report was received ---Such report did not help the prosecution case as the TT
pistol being the crime weapon along with four live cartridge were recovered on 16.11.2021 and secured through recovery memo, but were received in the office of Forensic Science Laboratory, on 06.12.2021 with a delay of 20 days, for which no plausible explanation had been offered, diminishing the entire value of recovery of TT pistol and Forensic Science Laboratory Report, more particularly, when empties secured
from the crime scene and alleged crime weapon had been sent together, therefore, no
explicit reliance could be placed on such tainted and unworthy piece of evidence ---
Appeal against conviction was allowed, in circumstances.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---CCTV footage not forensically
analyzed ---Accused was charged for committing murder of the brother of complainant ---
Record showed that neither the prosecution forensically analyzed the CCTV footage nor
produced the witness, who recorded the said footage ---Moreover, it was a corroborative
piece of evidence, which was to be considered with the ocular account and circumstantial witnesses ---As the ocular account and the circumstantial evidence had not been found
sufficient enough to hold the appellant guilty of the charge, therefore, mere CCTV footage, itself alone would not be sufficient enough to substantiate the indictment ---
Appeal against conviction was allowed, in circumstances.
Ishtiaq Ahmed Mirza v. The Federation of Pakistan PLD 2019 SC 675 rel.
(e) Criminal trial ---
----Medical evidence ---Scope ---Medical evidence is always considered to be
confirmatory in nature, which only confirms the locale, nature and kind of weapon, but does not in any manner identify or directly relates the accused with the murder of the deceased person.
Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Ishaque alias Bobi
v. The State 2024 PCr.LJ 33 rel.
(f) Criminal trial ---
----Conviction ---Principle ---It is better that ten guilty persons be acquitted rather than
one innocent person be convicted.
Muhammad Mansha v. The State 2018 SCMR 772 and Naveed Asghar v. The State
PLD 2021 SC 600 rel.
Taimoor Khan Tareen for Appellant (in Criminal Jail Appeal NO. 30 of 2023).
Yahya Baloch, Additional Prosecutor General ("APG") for the State (in Criminal Jail
Appeal No. 30 of 2023).
Muhammad Ali Kanrani, Hazrat Ali Kakar and Rasool Bakhsh Khosa for the
Complainant (as per order dated 01.08.2024 on Crl. M.A No. 229 of 2024).
Yahya Baloch, APG for the State (in Murder Reference No. 02 of 2023).
Taimoor Khan Tareen for Respondent (in Murder Reference No. 02 of 2023).
Muhammad Ali Kanrani, Hazrat Ali Kakar and Rasool Bakhsh Khosa for the
Complainant (as per order dated 01.08.2024, Crl. M.A No. 229 of 2024).
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .--- Through this consolidated judgment, we aim
to dispose of the captioned Criminal Jail Appeal and Murder Reference brought before us
pursuant to the judgment dated 31.03.2023 ("impugned judgment") penned by Additional Sessions Judge, II Sariab, Quetta ("Trial Court"), whereby the appellant has been convicted and sentenced to death under section 302 (b) of the Pakistan Penal Code, 1860 ("P.P.C"), and to pay compensation in terms of section 544- A of the Criminal Procedure
Code, 1898 ("Cr.P.C") in the sum of Rs.200,000/ - (Two hundred thousand) to the legal
heirs of the deceased or to suffer six (06) months S1 emanating from an FIR bearing No.82 of 2021 (Ex.P/9- A) registered with Police Station ("PS") Manzoor Shaheed, Quetta.
2. Unfurled facts of the case at hand are that on 05.11.2021 complainant Rahim -ud-Din
(PW -3) got lodged the FIR ibid on the basis of his report (Ex.P/8- A). averring therein that on
the fateful day, whilst he was present in his house at about 06:50 pm, he received
information via cell phone that his brother Dr. Amir -ud-Din present at his clinic namely
Shams -ud-Din Care Center, situated at Magsi Stop Street No.09 Eastern Bypass, Quetta was
fired at by some unknown person and is injured, whereupon he along with his relatives
reached Civil Hospital Quetta, where his brother succumbed.
3. After conclusion of the investigation, the appellant was arrested and sent up to the
Trial Court to face deeds of his culpability, whereafter the denial of the indictment, the prosecution to drive home the charge produced as many as nine (09) witnesses. However, on
close of the prosecution side, the appellant was examined under section 342 of Cr.P.C, who neither got recorded his statement on oath nor produced any defence, henceforth, the Trial
Court vide impugned judgment convicted and sentenced the appellant in the terms mentioned
in para supra.
4. Heard. Record vetted with the able assistance of learned counsel for the adversial
parties. The entire edifice of the prosecution case is pillared upon the testimony of eye -
witness namely Sameer Ahmed (PW- 1), disclosure of appellant (ExP/5- C) and recovery of
crime weapon (Ex.P/5 -D), confessional statement of the appellant recorded under section 164
of Cr.P.C, CCTV footage of the occurrence (Ex/P/5- E) and last but not the least, the medical
evidence.
5. After registration of FIR (Ex.P/9 -A), Ghulam Sarwar IP Investigation Officer
("IO") (PW -09) was entrusted with the investigation, who went to the crime seene,
wherefrom he secured four empty shells of TT pistol, blood stained articles through
recovery memo (Ex.P/5- B), following preparation of site plans (Ex. P/9- C) and (Ex.P/9-
D). According to IO (PW -09) on arrival at the Civil Hospital. Quetta he prepared inquest
report of deceased (Ex.P/9 -B). He also recorded statements of eye- witness Sameer Ahmed
(PW -1), circumstantial witnesses Allah -ud-Din (PW -2) and Muhammad Sadiq (PW -4).
The circumstantial witness Allah -ud-Din (PW -2) testified that, while he was present at his
house on 05.11.2021, at about 6:50 in the evening, he received a phone call regarding death of the deceased, being shot by an unknown culprit in his clinic, thus, he rushed to Civil Hospital Quetta. Muhammad Sadiq (PW -4) was employee of the deceased. He
deposed that on 05.11.2021, while he was present in the clinic, he after hearing fire shots
at about 6:45 pm, saw the deceased lying on the floor, whereafter, he along with neighbors and some other people took deceased Dr. Amir -ud-Din to the Trauma Center in Civil
Hospital. Quetta. He (PW -4) did not identify the appellant in the court as culprit.
Muhammad Sadiq (PW -4) also did not mention about the presence of Sameer Ahmed
(PW -1) in the clinic, when the deceased was murdered. The testimony of Sameer Ahmed
(PW -1) has critically been scanned and analyzed, being the sole eye -witness of the
occurrenc e. Sameer Ahmed (PW- 1) testified that he was working with the deceased in his
clinic. According to him, on 05.11.2021, while he was present in the clinic, at about 06:45 pm, he heard 3- 4 fire shots, whereafter he saw deceased Dr. Amir -ud-Din lying on the
floor. He further stated that he also saw a person with a pistol in his hand, who ran away, having a trimmed bear along with a child. He further testified that he along with Muhammad Sadiq (PW -4) and neighbors took the deceased to the HIG Frauma Center,
who succumbed, whereafter he informed his relatives. During cross - examination, he
admitted that he is cousin of the deceased. The defence denied his presence on the crime
scene. Sameer Ahmed (PW- 1) did not give the detail description of the culprit.
Admittedly, after the arrest of the appellant on 07.11.2021, he was not put to the test of identification parade, thus mere identification in the court is unworthy of reliance.
Muhammad Sadiq (PW -4) did not mention about the presence of Sameer Ahmed (PW -1)
at the relevant time, therefore, his presence becomes doubtful, whereupon reliance would
be unsafe, more particularly, in the case of capital punishment. In this regard, reliance is placed upon the cases of "The State v. Subharo" (1993 SCMR 585), "Nasir Mehmood v. The State" (2008 YLR 1755) and "Sabir Ali alias FAUJI v. The State" (2011 SCMR 563).
6. Adverting to the confessional statement of the appellant, it may be observed that
Miss. Raqiba Khan Akhundzada, Judicial Magistrate ("JM") -III Sariab, Quetta (PW -06)
recorded the confessional statement of appellant on 18.11.2021. We have critically looked into the method and procedure, while recording of confessional statement of the appellant. JM (PW -06) produced forwarding letter (Ex.P/6- A), Performa of the questionnaire (Ex.P/6-
B), confessional statement of appellant under section 164 of Cr.P.C (Ex.P/6 -C) and
certificate (Ex.P/6 -D). Admittedly, neither in the Performa (Ex.P/6 -B) of the questionnaire
nor in the certificate (Ex.P/6 -D), it finds mentioned that in case the appellant does not
record his confessional statement, he would not be handed over back to the police, which is
an incurable illegality, making the confessional statement unworthy of credence. Moreover,
during cross -examination, JM (PW -06) admitted that IO (PW -9) was present along with the
accused in the court room, when request for recording his confessional statement was
made. She also admitted that while recording confessional statement of the appellant, her gunman was present in her chamber and that earlier accused was produced for grant of
police remand, but the appellant did not volunteer to record his confessional statement. JM
(PW -06) did not state in her examination -in-chief or in the certificate (Ex.P/6 -D) that after
recording confessional statement, to whom the custody of the appellant was handed over
for remanding him into judicial custody. In view of the above, we are of the considered * view that the confessional statement of the appellant is unworthy of reliance as it is not only inadmissible, but seems not to have got recorded voluntarily without any duress and promise. [SEE; "Hashim Qasim v. The State" (2017 SCMR 986)].
7. Now coming to the disclosure of the appellant (Ex.P/5 -C) and recovery of crime
weapon (Ex.P/5- D) in consequence thereof, the testimony of Ghulam Sarwar Investigation
Officer ("IO") (PW -09) is of significance. IO (PW -09) testified that during investigation on
16.11.2021, appellant Abdul Qayum made a disclosure (Ex.P/5- C), whereby he disclosed
that he had murdered deceased Dr. Amir -ud-Din due to illicit relations of his wife with the
deceased, whereby his marital life got disturbed. He further disclosed that 7 -8 days back,
he sent his wife and children to her parents home and that on 05.11.2021, he took TT pistol and his minor son to the clinic of the deceased on the pretext of treatment, where he made four fire shots with a TT pistol, which he can get recover, henceforth, the appellant got recovered the crime weapon from a washing machine under the clothes along with a magazine and four live rounds, which were secured through recovery memo (Ex.P/5- D).
Ghulam Sarwar IO (PW -09) sent the same for analysis to the Forensic Science Laboratory,
Crime Branch, Quetta ("FSL, Quetta"), which were received in the office of FSL, Quetta on 06.12.2021, whereof positive FSL report (Ex.P/9- F) was received. In the instant case albeit
the prosecution has procured a positive FSL report (Ex.P/9- F) with regard to the TT pistol
recovered on the pointation of the appellant, but such report instead of a help to the prosecution case has offended the dictum expounded by the apex court in the cases of "Mushtaq v. The State" (PLD 2008 SC 1) and "Ali Sher v. The State" (2008 SCMR 707). The TT pistol being the crime weapon along with four live cartridge were recovered on 16.11.2021 and secured through recovery memo (Ex.P/5 -D), but were received in the office
of FSL. Quetta on 06.12.2021 with a delay of 20 days, whereof no plausible explanation has been offered, diminishing the entire value of recovery of TT pistol and FSL report (Ex.P/9 -F), more particularly, when empties secured form the crime scene and alleged
crime weapon had been sent together, therefore, no explicit reliance can be placed on such tainted and unworthy piece of evidence.
8. As far as recovery of CCTV footage (Ex.P/5 -E) is concerned, it has not been proved
by the prosecution. Neither the prosecution got forensically analyzed the CCTV footage nor produced the witness, who recorded the said footage. Moreover, it is a corroborative piece of
evidence, which is to be considered with the ocular account and circumstantial witnesses. As
the ocular account and the circumstantial evidence have not been found sufficient enough to hold the appellant guilty of the charge, therefore, mere CCTV footage (Ex.P/5- E), itself
alone would not be sufficient enough to substantiate the indictment. [SEE; "Ishtiaq Ahmed Mirza v The Federation of Pakistan" (PLD 2019 SC 675)]. For ready reference, the relevant
para No.11 of Ishtiaq Ahmed Mirza's case supra is reproduced herein below:
"11. The precedent cases mentioned above show that in the matter of proving an audio
tape or video before a court of law the following requirements are insisted upon:
* No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored.
* A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.
Under Article 164 of the Qanun- e-Shahadat Order, 1984 it lies in the discretion of a
court to allow any evidence becoming available through an audio tape or video to be produced.
* Even where a court allows an audio tape or video to be produced in evidence such audio tape or video has to be proved in accordance with the law of evidence.
* Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, has to be produced so as to rule out any possibility of tampering with the record.
* An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.
* The person recording the conversation or event has to be produced.
* The person recording the conversation or event must produce the audio tape or video himself.
* The audio tape or video must be played in the court.
* An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.
* The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognizes such voice or person.
* Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.
* The voices recorded or the persons shown must be properly identified.
* The evidence sought to be produced through an audio tape or video has to be relevant to the controversy and otherwise admissible.
* Safe custody of the audio tape or video after its preparation till production before the court must be proved.
* The transcript of the audio tape or video must have been prepared under independent supervision and control.
* The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of lying a trap to procure evidence.
* The source of an audio tape or video becoming available has to be disclosed.
* The date of acquiring the audio tape or video by the person producing it before the court ought to be disclosed by such person.
* An audio tape or video produced at a late stage of a judicial proceeding may be
looked at with suspicion.
* A formal application has to be filed before the court by the person desiring an audio
tape or video to be brought on the record of the case as evidence."
9. Moving forward to the next important piece of evidevnce, whereupon the prosecution
rests its case, is the medical evidence. Dr. Ayesha Faiz (PW- 07) on 05.11.2021, examined
deceased Amir -ud-Din and issued Medico Legal Certificate MLC") (Ex.P/6 -A), whereof
observed the following injuries;
"Entrance wounds on right side lateral side of chest 0.5x0.5 c.m.
Exit wound on left side front of chest ix l c.m.
Exit wound on left lateral side of chest Ix1 c.m.
Entrance wound on right lateral side of abdomen 0.5 x 0.5 c.m.
Exit wound left lateral side of abdomen 1 x 1 c.m
Entrance wound on right side forearm 0.5x0.5 c.m.
Exit wound on right side fore arm 1x1 c.m."
The medical evidence is always considered to be confirmatory in nature, which only
confirms the locale, nature and kind of weapon, but does not in any manner identifies or directly relates the accused with the murder of deceased person. In this regard, we are fortified with the view expounded in the case of case of "Muhammad Mansha v. State" (2018
SCMR 772) and "Muhammad Ishaque alias BOBI v. The State" (2024 PCr.LJ 33), the
relevant portion of Muhammad Mansha's case is reproduced hereunder;
"It has been declared by this Court in various judgments that the medical evidence
neither pin point the accused nor establish the identity of the accused, and at the most can depict the locale of injury, duration, weapon used ete and medical evidence can never be considered to be a corroborative piece of evidence and at the most can be considered a supporting evidence only to the extent of specification of seat of injuries. the weapon used, duration, the cause of death etc. reference in this context can be made to the cases of Muhammad Sharif and another v. The State (1997 SCMR 127, Dildar Hussain v Muhammad Afzal alias Chala and others (PLD 2004 SC 663). Abdul Majeed v. Mulzim Hussain and others (PLD 2007 SC 637) and Hashim Qasim and another v. The State (2017 SCMR 986)."
10. The apex court in the cases titled as "Muhammad Mansha v. The State" (2018 SCMR
772) and "Naveed Asghar v The State" (PLD 2021 SC 600) held that it is better than ten guilty persons be acquitted rather than one innocent person be convicted'. For ease of reference, the relevant excerpt of Muhammad Mansha's case is reproduced herein under,
"Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is better than ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this regard can be made upon the case of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Oadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
[Emphasis supplied]
11. Epitome of the above discussion is that the prosecution had failed to establish the
indictment beyond the shadow of doubt against the appellant, thus the impugned judgment was held to be unsustainable, thus set at naught.
12. Above are the reasons of our short order dated 26.06.2024, whereby the appeal was
allowed: impugned judgment dated 31.03.2023 was set -aside and inconsequence thereto,
acquittal of the appellant was recorded and the Murder Reference No.02 of 2023 was
answered in negative.
JK/147/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.