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Official Citation: 2023 MLD 918
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Petitioner: Irshad Ali S/o Maqsood Ali Rajput (confined at Central Prison Hyderabad) JUDGMENT
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-12-31, officially reported as 2023 MLD 918. In this matter between Irshad Ali S/o Maqsood Ali Rajput (confined at Central Prison Hyderabad) JUDGMENT and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023 MLD 918
Court Name: Sindh High Court Judge(s): Ali Haider 'Ada' Title:Irshad Ali S/o Maqsood Ali Rajput (confined at Central Prison Hyderabad)
JUDGMENT
Reported As: 2025 SHC MPK 1959 Result: Appeal Allowed Judgment
JUDGMENT Ali Haider 'Ada',J;- Through the instant appeal, the appellant has impugned the judgment dated 06.12.2019, passed by the learned Additional Sessions Judge-I / Model Criminal Trial Court, Sanghar, in Sessions Case No. 331 of 2016, titled The State v. Irshad Ali, arising out of Crime No. 173 of 2016, registered at Police Station Shahdadpur, for offences punishable under Sections 302, 376, and 511, PPC. By the said judgment, the appellant was convicted and sentenced to suffer rigorous imprisonment for life as Tazir. He was also sentenced to pay a fine of Rs. 500,000/- (Rupees Five Hundred Thousand only), and in case of default in payment, to undergo simple imprisonment for a further period of one year. However, the benefit of Section 382-B, Cr.P.C was extended to the appellant. 2. The brief facts of the prosecution case are that the complainant lodged the F.I.R. on 03.09.2016 at about 1630 hours, while the date of the incident was stated as 01.09.2016. As per the complainant's version, Mst. Ruqia, his sister, had left the house on the day of the incident at around 07:00 p.m. The complainant, accompanied by his relatives Muhammad Afzal and Abdul Jabbar, along with other family members, was present at home. When Mst. Ruqia did not return after some time, they all went out in search of her but could not find her. The complainant's father, Abdul Razaque, subsequently informed the police about her disappearance. On 03.09.2016, the complainant received information that a dead body of a girl had been found near Truck Adda, Hala Road. The complainant, along with the aforementioned witnesses, reached the spot and identified the dead
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body as that of his sister, Mst. Ruqia. It was observed that she had been strangled with a dupatta tied in two knots. The police were informed accordingly. After completing the necessary legal formalities, including a post-mortem examination, the body was handed over to the family for funeral rites. Thereafter, the F.I.R. was registered. Subsequently, on 16.09.2016, the complainant recorded a further statement wherein the name of the appellant was disclosed as an accused. The appellant was arrested on 18.09.2016, and on 26.09.2016, his confessional statement under Section 164 Cr.P.C. was recorded before the Magistrate. After completion of the investigation, the Investigating Officer submitted the challan before the Court of competent jurisdiction and sent the accused to face trial. 3. After the accused was sent up for trial, the learned trial Court framed the charge on 04.05.2017. The accused pleaded not guilty and claimed trial. Thereafter, the prosecution examined a few witnesses, including the complainant, the Women Medical Officer, a police officer (who was the duty officer at the time of registration of the F.I.R.), and the Tapedar. Subsequently, the learned State Counsel moved an application for amendment of the charge by adding Sections 376 and 511 PPC, which was allowed. Thereafter, on 26.09.2019, the learned trial Court framed an amended charge, to which the accused again pleaded not guilty and claimed trial. Following the amendment, the prosecution re-examined its witnesses and produced fresh evidence. The following prosecution witnesses were examined: PW-1 Muhammad Ashraf (Complainant): He exhibited the receipt of receiving the dead body, copy of the F.I.R., and his further statement. PW-2 Dr. Naila Aijaz (Senior Woman Medical Officer): She produced and exhibited the Lash Chakas form, post-mortem report, letters sent to the Chemical Examiner and Pathologist, their respective reports, letter to the concerned SHO, and her final opinion. PW-3 Nawaz Ali (Tapedar): He produced the letter issued by the SHO to the Mukhtiarkar and a copy of the site sketch. PW-4 Ahmed Ali (Duty Officer): He produced the memo of inspection of the dead body, Danistnama, memo of clothes, and relevant Roznamcha entries. PW-5 Muhammad Afzal: A witness who supported the complainant's version. PW-6 Abdul Jabbar: Another witness and relative of the complainant. PW-7 Muhammad Imran (Mashir): He exhibited the memo of the place of incident, memo of collection of CDR, memo of arrest of the accused, and memo of recovery of mobile phone. PW-8 Imtiaz Ahmed (Judicial Magistrate): He recorded the confessional statement of the accused under Section 164 Cr.P.C. and exhibited the application moved by the SHO for recording the statement, as well as the confessional statement itself. PW-9 Nisar Ahmed (Investigating Officer): He exhibited letters sent to the Chemical Examiner and their reports, relevant Roznamcha entries, and a letter addressed to the Medical Officer for examination of the accused. PW-10 Dr. Muhammad Bachal: He examined the accused and exhibited the medico-legal certificate, letter to the Chemical Examiner, chemical report, and his final opinion. PW-11 Mst. Mariyam: Sister of the deceased, who supported the complainant's version. PW-12 Mst. Naseem: Mother of the deceased, who also corroborated the version given by the complainant and other witnesses. 4. Thereafter, the learned State Counsel closed the prosecution's evidence by filing a statement dated 26.10.2019. The learned trial Court then proceeded to record the statement of the accused under Section 342 Cr.P.C. The accused opted to be examined on oath, and the learned trial Court accordingly recorded the accused's statement under oath. Subsequently, the accused presented his defense witness, Mst. Yasmeen, the wife of the accused. After the defense evidence was closed, the learned trial Court heard the arguments from both parties. Upon conclusion of the arguments, the learned trial Court passed the impugned judgment, which is now challenged through this appeal. 5. Learned counsel for the appellant contended that there was an unexplained delay in the registration of the FIR, and the medical evidence failed to determine the approximate time
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between injury and death. He further submitted that no eyewitness to the incident has been cited, and the accused was implicated solely on the basis of Call Data Record (CDR) and a confessional statement. He argued that the CDR is not corroborative evidence as no proof of ownership of the SIM card was established, nor were any mobile phones recovered from the possession of the accused. As regards the confessional statement, the learned counsel pointed out that it was later retracted as the accused denied making such a statement during trial. Therefore, conviction based solely on a retracted confessional statement and uncorroborated CDR cannot be sustained. He prayed for the acquittal of the appellant and placed reliance upon the cases as reported as 2023 P.Cr.L.J 850, 2019 P.Cr.L.J 1073, 2022 P.Cr.L.J 186, 2020 P.Cr.L.J Note 177, 2017 P Cr.L.J Note 64, and 2020 YLR 1432. 6. On the other hand, the complainant filed a statement along with an affidavit, wherein he expressed full confidence upon the learned State Counsel to argue the case on his behalf. He further submitted that the appellant is the actual culprit and was rightly convicted by the learned trial Court. He contended that the accused does not deserve any leniency, particularly when he pleaded guilty during the course of proceedings. He prayed for dismissal of the appeal. 7. Conversely, the learned Law Officer argued that circumstantial evidence links the appellant to the commission of the offence. The investigating agency rightly declared the appellant as the accused, and the CDR supports his involvement. Furthermore, a voluntary confessional statement was recorded, free from any pressure or coercion. He supported the impugned judgment and submitted that the conviction is well-founded on the basis of evidence available on record. 8. Heard arguments and perused the material available on record. Upon meticulous examination of the entire case file and evidence brought on record, serious discrepancies, inconsistencies, and material contradictions have been observed in the prosecution's case. These flaws, which strike at the root of the prosecution's version, are discussed and analyzed in the following paragraphs. 9. From the perusal of the evidence available on record, it has emerged that the prosecution's case is primarily based on circumstantial evidence. According to the version of the complainant, his sister, Mst. Ruqia, had left the house voluntarily on the day of the incident. However, it is an admitted position that no witness saw the accused accompany the deceased at the time she left the house, nor is there any ocular account establishing that the deceased was last seen in the company of the accused on the relevant date. Furthermore, during the course of trial, no prosecution witness deposed that the accused came to the house to take Mst. Ruqia along with him, nor was there any direct evidence connecting the accused with the deceased at the crucial point in time. The prosecution has failed to establish any last-seen evidence, which could have formed a reliable link in the chain of circumstances required to prove the guilt of the accused beyond reasonable doubt. 10. According to the version of the complainant, his sister went missing on 01.09.2016, and it was claimed that his father, Abdul Razaque, had informed the police on the same day. Furthermore, all the relatives of the complainant who were cited and examined as witnesses corroborated this claim, asserting that the missing report was conveyed to the police promptly on the date of the incident. However, this assertion is not supported by the documentary evidence available on record. The police official who recorded the FIR stated clearly that the police were first informed on 03.09.2016, i.e., the date of registration of the FIR. No entry, roznamcha, or any other document was produced to substantiate the claim that the police were approached earlier. In view of this discrepancy, it becomes difficult to believe that a young girl had gone missing and yet the family members, including the complainant, failed to inform the police immediately, particularly when they now claim otherwise. Either the version of the complainant party is inaccurate, or the police are concealing facts, but in either case, such a glaring inconsistency casts serious doubt on the credibility of the prosecution's narrative. Upon a comparative examination of the oral and
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documentary evidence, it becomes evident that the version advanced by the complainant regarding prior intimation to the police is an afterthought, apparently designed to explain away the delay in lodging the FIR. This aspect, therefore, seriously affects the trustworthiness of the prosecution's case. In the given context, the delay in lodging the FIR is a material aspect that casts serious doubt on the veracity of the prosecution's version. It is a settled principle of law that unexplained or unjustified delay in the registration of the FIR creates room for fabrication and manipulation of facts. In this regard, reliance is placed on the case of Khial Muhammad v. The State (2024 SCMR 1490), Zafar Ali Abbasi and anothers v. Zafar Ali Abbasi and others (2024 SCMR 1773) and case of Muhammad Jahangir and another v. The State and another (2024 SCMR 1741). 11. Coming to the question of the alleged involvement of the accused, it is noted from the record that the accused was arrested on 18.09.2016, whereas the memo of recovery of mobile phones was prepared on 19.09.2016. However, the prosecution case is silent on a crucial aspect that no mobile phone was recovered from the direct possession of the accused at the time of his arrest. The arrest memo did not reflect any such recovery, and no explanation has been offered by the prosecution as to under what circumstances or from whom the mobile phones were allegedly secured. According to the mashir (witness to the recovery), both mobile phones were produced by Shahid Ali, who is stated to be the brother-in-law of the accused. Notably, Shahid Ali was never cited as a witness by the prosecution, nor he was produced before the Court to support this version of events. His insertion into the case at a later stage raises doubts regarding the reliability of the recovery proceedings. The absence of his testimony creates a serious evidentiary gap, particularly concerning the chain of custody and ownership of the mobile devices. 12. Moreover, the complainant, in his own deposition, stated that the deceased did not possess a personal mobile phone; rather, she would use a shared mobile phone kept at home. It was never the prosecution's case that the deceased had taken a mobile phone with her at the time she left home on the day of the incident. If, for the sake of argument, it is presumed that the deceased had the mobile in her possession, then the prosecution ought to have shown that the family attempted to contact her after her disappearance. However, no such effort or call record has been produced or established through evidence. These inconsistencies and omissions not only weaken the prosecution's case but also create serious doubt as to the evidentiary value and linkage of the recovered mobile phones with the accused or the alleged offence. In the absence of a direct, proven connection, the alleged recovery cannot be treated as reliable incriminating evidence against the accused. Additionally, the mobile phones in question were not recovered from the possession of the accused at the time of arrest. Instead, they were produced by one Shahid Ali, who, notably, has no direct connection with the incident. This raises a significant and unanswered question as to under what circumstances Shahid Ali came into possession of the mobile phones allegedly belonging to the deceased and the accused. Such omissions create a significant dent in the prosecution's case, particularly in a matter resting upon circumstantial evidence, which is required by law to be of an unbroken and convincing nature. In the present case, the prosecution's reliance on this weak and unsupported piece of circumstantial evidence renders the overall case doubtful and lacking in evidentiary integrity. 13. Furthermore, the complainant, in his deposition, has further attempted to attribute motive by alleging that some females from the mohallah disclosed to him that the deceased (his sister) was teased by the accused. However, it is a matter of record that none of those alleged females were cited as prosecution witnesses, nor they were produced before the Court to substantiate this claim. Such uncorroborated assertions amount at best to marginal hearsay, and in the absence of supporting testimony from the alleged sources, this version cannot be given any evidentiary weight. The failure of the prosecution to produce such material witnesses, who were admittedly
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available and could have supported the prosecution's narrative, leads to a presumption of adverse inference under Article 129(g) of the Qanun-e-Shahadat Order, 1984. It appears that these persons were deliberately withheld for reasons best known to the prosecution. 14. Furthermore, the prosecution primarily relies upon the supplementary statement of the complainant, which was recorded on 16.09.2016, nearly twelve days after the registration of the FIR, without offering any plausible justification for such delay. The law is well-settled that delayed statements, particularly those that introduce new facts or implicate new accused persons, must be viewed with caution and are often considered an afterthought, unless properly explained. In the instant case, the complainant, in his supplementary statement, failed to disclose the source through which he implicated the present accused. The statement is completely silent on how or on whose information he arrived at the conclusion of the accused's involvement. During the trial, the complainant attempted to supplement this deficiency by deposing that some females from the mohallah had informed him about the conduct of the accused. However, none of those alleged persons were cited as witnesses or produced by the prosecution, thereby rendering such claim unsubstantiated. Moreover, prosecution witness Mst. Nasreen, the mother of both the complainant and the deceased, deposed that she had spoken with the accused over the phone prior to the disappearance of the deceased. Even if this piece of evidence is taken at face value, it does not justify the unexplained lapse of twelve days in recording the supplementary statement of the complainant under section 161 Cr.P.C. In such circumstances, the delayed supplementary statement, devoid of explanation and lacking corroborative support, loses its probative value and becomes fatal to the prosecution's case, especially when the accused is implicated for the first time therein. 15. Now coming to the aspect of medical evidence, it is a well-settled principle of law that medical evidence is primarily used to determine the nature of the injuries sustained, the cause of death, and the possible kind of weapon used. However, it is equally established that medical evidence, by its very nature, cannot identify or establish the identity of the assailant. Reliance is placed upon the case of Muhammad Ramzan vs the State (2025 SCMR 762), as held that: 16. No doubt, as per testimony of Dr. Shazia (PW.12), who had conducted autopsy on the dead body, the deceased met her unnatural death due to strangulation, but in absence of any direct or circumstantial evidence, only medical evidence would not be sufficient to prove that it was the petitioner who committed murder of the deceased. It is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of "Muhammad Hassan and another v. The State and another" (2024 SCMR 1427) and "Iftikhar Hussain alias Kharoo v. The State" (2024 SCMR 1449). 16. As per Modi's Medical Jurisprudence and Toxicology, 26th Edition, Chapter 20 titled "Death from Asphyxia", the term "strangulation" is specifically defined and medically explained. For ready reference, the relevant portion is reproduced as under: Strangulation is defined as the compression of the neck by a force other than hanging, weight of the body has nothing to do with strangulation. Ligature strangulation is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body. When constriction is produced by the pressure of the fingers and palms upon the throat, it is called throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances, it is known as mugging (strangle hold). Further explained:
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(2) If fingers are used (throttling) marks of pressure by the thumb and the fingerprints are usually found on either side of the windpipe. The thumb mark is ordinarily higher and wider on one side of the front of the neck, and the finger marks are situated on its other side obliquely downwards and outwards, and one below the other. 17. As per Modi's, it is observed that in cases of strangulation, a fracture of the first and second ribs on both sides be found. Furthermore, under the topic of medico-legal questions relating to the determination of whether death was caused by strangulation, it is noted that abrasions and fingernail marks, sometimes be produced on the neck by a person gasping for air, particularly in an intoxicated state or during an epileptic or hysterical fit. Therefore, in order to conclusively arrive at a finding that death occurred due to strangulation, it is essential to examine signs of violence in the underlying tissues, along with the presence of ligature marks, bruises caused by fingers or feet or knees, and other associated features indicating death by asphyxia. At the same time, the possibility of death from other causes of asphyxia must be categorically excluded. In the present case, the medical officer categorically stated in his deposition that no fractures of the ribs were found and also opined that they appeared to be healthy. The doctor further confirmed that no external signs of violence, such as bruises, abrasions, or fingernail marks, were observed on the face, neck, or any other parts of the body, which are usually present in cases of violent strangulation. Nevertheless, the final opinion of the doctor was that death occurred due to shock and asphyxia as a result of strangulation. 18. Now, coming to the prosecution's reliance on the confessional statement of the appellant: Admittedly, the confessional statement was retracted by the accused, as he pleaded not guilty at the time of framing of charge during the trial. In such circumstances, the confessional statement loses its evidentiary value and cannot be treated as a voluntary and truthful account. A statement made under Section 164 Cr.P.C. by an accused against himself, which is subsequently resiled from, cannot be accepted as a trustworthy or reliable piece of evidence unless it is corroborated by other strong independent evidence. In this regard, reliance is placed upon the judgment of Muhammad Ismail and others vs The State (2017SCMR 898), it had been held by the Honourable Apex Court that: The only other piece of evidence remaining in the field was a judicial confession allegedly made by Muhammad Iqrar, Khalid Hussain and Shakir Ali appellants before a Magistrate under section 164, Cr.P.C. but admittedly the said judicial confession had been retracted by the appellants before the trial court and in the absence of any independent corroboration such retracted judicial confession could not suffice all by itself for recording or upholding the appellants' convictions. Further reliance in support is placed on the following authoritative judgments: Azeem Khan and another vs Mujahid Khan and others (2016 SCMR 274). 15. Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the provision of section 364 read with section 164, Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess,
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then all required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him. The statement of accused be recorded by the Magistrate with his own hand and in case there is a genuine compelling reason then, a special note is to be given that the same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he is Naib Court wearing police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused. 16. In the instant case, the Recording Magistrate namely, Ch. Taufiq Ahmed did not…
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