Full Judgment Text & Judicial Ruling

2025 Y L R 1321 [Sindh] Before Naimatullah Phulpoto, J Syed Jehanzaib and another ---Appellant Versus The State---Respondent Criminal Jail Appeals Nos. 716 and 857 of 2019, decided on 10th December, 2024. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Admission of accused before police---Inadmissible evidence---Accused were charged for committing murder of the brother of complainant and his wife---Case of prosecution was that both accused were arrested by police under S.54, Cr.P.C and during interrogation, they admitted that they had committed murders of deceased in their house---Case was already registered on 29.11.2014 at Police Station under Ss. 302/109/34, P.P.C, against unknown persons and dead bodies were shifted to the hospital on 28.11.2014---House where incident had occurred was jointly pointed out by both the accused---Admission by both accused before Police was inadmissible in evidence---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Last seen evidence not corroborated by independent evidence---Accused were charged for committing murder of the brother of complainant and his wife---Prosecution had extensively relied upon the testimony of tenant in a portion of the house of deceased---According to evidence of said witness, he had seen accused in the house of deceased on 22.11.2014 but according to medical evidence both deceased were done to death in between 24.11.2014 to 28.11.2014 which clearly showed that there was gap of two days, which was not explained---Said witness had not specifically mentioned first or second floor of the house where he had seen accused on 22.11.2014---Record showed that said witness was residing with his family in the said house, but prosecution had failed to examine wife of the said witness for the purpose of corroboration---Prosecution had also heavily relied upon the evidence of another witness, who deposed that on 23.11.2014, he had gone to a shrine to pray for his job, and it was morning time; that several persons were already there, when he heard gunshot report from adjacent house; that after 45 minutes of firing, when he was waiting outside the shrine, he saw that a person sitting on motorcycle and another person came out of the house of the deceased, and one of them was carrying a box in his hand; that after 5/6 days, he came to know from the people who had gathered at Shrine that husband and wife residing in the house adjacent to shrine from where he had heard gunshot had been killed and culprits had been arrested by the police; that after hearing this news, he went to Police Station to see the culprits---Said witness narrated this story to the Investigating Officer, who recorded his S.161 Cr.P.C statement on 15.03.2015---According to said witness, he appeared before the Magistrate on 17.03.2015 and identified accused persons in the identification parade---In the present case testimonies of witnesses on the aspect of last seen were extremely tenuous and lacked independent corroboration---Tenant of deceased/witness had not mentioned the date at which he had seen accused in the house of deceased persons---Said witness had not specifically mentioned about ground or first floor of the house where he had seen accused standing on the relevant date---Other witness was a chance witness, as he failed to plausibly explain his presence at the shrine on the day of incident---Said witness after hearing gunshot report did not narrate incident to anyone and remained calm for 04 months---Circumstantial evidence of last seen was not corroborated by independent evidence---Appeal against conviction was allowed, in circumstances.

(c) Qanun-e-Shahadat (10 of 1984)--- ----Art. 22---Test identification parade---Object---Main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime---Test identification parade should be conducted as soon as possible after the arrest of the accused, which becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test of identification parade. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Test identification parade, conducting of---Infirmities---Accused were charged for committing murder of the brother of complainant and his wife---In the present case identification parade was conducted through two witnesses---Record showed that accused "J" was previously known to witness/tenant of deceased as deposed by said witness in his evidence---Thus, identification parade held through said witness was without any necessity---As regard to the identification parade of accused persons through other witness, it had come in evidence that said witness came to know on 15.03.2015 that accused were confined at Police Station and was involved in the murders of the deceased persons---Said witness went to said police station on 15.03.2015 to see the accused---Therefore, possibility could not be ruled out that said witness had seen both the accused at police station before holding identification parade---Hence, it was clear that holding of identification parade through said witness had no evidentiary value---Unfortunately, Magistrate failed to follow the guidelines, requirements and safeguards necessary for holding identification parade---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Withholding material evidence---Effect---Accused were charged for committing murder of the brother of complainant and his wife---Record showed that sisters of deceased female had identified dead body of their sister on 28.11.2014, but they were given up by the prosecution during trial---Said sisters of the deceased female were material prosecution witnesses---Under Article 129(g) of Qanun-e-Shahadat, 1984, adverse inference could be drawn to the effect that had they been produced by the prosecution at trial, they would not have supported the case of prosecution---Appeal against conviction was allowed, in circumstances. Raisat Ali and another v. The State and another 2024 SCMR 1224 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Recovery of weapons of offence and stolen property--- Inconsequential---Accused were charged for committing murder of the brother of complainant and his wife---During interrogation, both accused admitted before police that on 23.11.2014, they committed murders of deceased persons by means of firearm and knife---On admission of accused, he led police party and produced pistol on 12.03.2015 in presence of mashirs from railway crossing---Same accused again produced ornaments of gold and laptop taken from the house of deceased on 16.03.2015 from a graveyard in presence of mashirs---Record transpired that the articles were produced by the accused from a railway crossing and from graveyard, which were open spaces, accessible to all---In order to prove the case within the ambit of Art. 40 of Qanun-e-Shahadat, 1984, the prosecution was bound to prove that a person accused of any offence, in custody of Police Officer, had conveyed an information or made a statement to the police, leading to discovery of new fact concerning the offence, which was not in the prior knowledge of the police---Such information or statement should be in writing and in presence of witnesses---In the present case, entry/statement was not recorded before leaving police station---Prosecution had failed to establish recoveries on the pointation of accused---Therefore, recoveries of pistol/articles belonging to the deceased persons on the pointation of accused without such entries in the record, in the circumstance of the case, were unreliable---Moreover, there were material contradictions in the evidence of Investigating Officer and mashir on the point of recovery of pistol on the pointation of accused---Moreover, there was also overwriting in date of preparation of mashirnama of recovery of pistol---After recovery of pistol it was not deposited in Malkhana of police station---Prosecution had failed to prove safe custody and safe transmission of pistol to Ballistic Expert before the Trial Court---Case of prosecution was that accused produced laptop belonging to the deceased persons but said laptop was not sent to the expert for opinion---Article 164 of Qanun-e-Shahdadat, 1984 specifically permits the use of any evidence that might have become available because of modern devices or techniques and Art. 165 overrides all other laws---So the recovery was inconsequential---Appeal against conviction was allowed, in circumstances. Bahlol Khan Kasi v. Azamtullah Kasi and another 2020 PCr.LJ 1633; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Muhammad Asif v. The State 2017 SCMR 486 ref. (g) Criminal trial--- ----Benefit of doubt---Principle---If there is a single circumstance, which creats reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to its benefit not a matter of grace and concession but as a matter of right. Tariq Pervez v. The State 1995 SCMR 1345 rel. Iftikhar Ahmed Shah, Muhammad Nasir, Ms. Shaista Gul and Raja Zeeshan for Appellants. Muhammad Iqbal Awan Additional Prosecutor General Sindh for the State. Mehmood A. Qureshi for the Complainant. Dates of hearing: 3rd and 10th December, 2024. Judgment Naimatullah Phulpoto, J.--- Appellants Syed Jehanzaib and Syed Murtaza Jillani were tried by learned I-Additional Sessions Judge Karachi East for offences punishable under sections 302/109/34 P.P.C. After regular trial, vide judgment dated 16.09.2019, both appellants were convicted under Section 302(b) P.P.C as Tazir for committing Qatl-amd of Badar-ul-Hassan and his wife Mst.Razia Sultana and sentenced to imprisonment for life on two counts and were directed to pay compensation in terms of section 544-A Cr.P.C of Rs.200,000/- each to be paid to the legal heirs of deceased persons. In case of default, they were ordered to undergo 06 months S.I. All sentences were ordered to run concurrently. The appellants were however, extended the benefit of Section 382-B Cr.P.C. Appellant Syed Murtaza Jillani was also tried for offence under section 23(1)(a) of Sindh Arms Act 2013 and after regular trial vide judgment dated 05.09.2019, appellant was convicted under Section 25 of Sindh Arms Act 2013 and sentenced to 07 years R.I with fine of Rs.10,000/-. In case of default, appellant was ordered to undergo 03 months' S.I. However, appellant was extended benefit of section 382-B Cr.P.C. 2. The case of the prosecution is in a narrow compass and is briefly encapsulated hereafter. It is a case of un-witnessed murders in the house of deceased persons between 24.11.2014 to 28.11.2014 where Badar-ul-Hassan and his wife Mst. Razia Sultana were done to death and their dead bodies were recovered by the police on 28.11.2014 from house and shifted by police to hospital for postmortem examination and reports. FIR of the incident was lodged by brother of deceased namely Syed Afsar Vehaj at PS Al-Falah Karachi on 29.11.2014. Both accused were arrested at Hyderabad as suspects under section 54 Cr.P.C on 04.03.2015. During interrogation, accused admitted the commission of these murders. Accused were arrested in this case and during investigation, they led police to the house of deceased persons on 04.03.2015. During investigation, accused Syed Murtaza prepared to produce pistol used by him in the commission of the offence and led police party and mashirs to the railway crossing and produced unlicensed pistol concealed by him in a ditch in presence of mashirs on 12.03.2015. Said accused led police on 16.03.2015 and produced ornaments of gold belonging to the deceased persons and laptop concealed in the graveyard. I.O sealed articles in presence of mashirs and dispatched pistol to the Ballistic Expert for report. Positive report was received by the I.O. On the conclusion of the investigation, he submitted challan against the accused under Sections 302/109/34 P.P.C and under section 23(1)(a) of Sindh Arms Act, 2013. At the trial, accused pleaded not guilty and claimed to be tried. Trial Court recorded evidence of 12 P.Ws. Thereafter, prosecution side was closed. Trial Court recorded statements of accused under Section 342 Cr.P.C at Ex.32 and 33, in which they denied the prosecution allegations. Accused declined to examine themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations and did not lead evidence in their defence. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 16.09.2019 and 05.09.2019 convicted and sentenced the appellants as stated above. Hence, appellants filed appeals before this Court. Hence, through this common judgment, I intend to dispose of instant appeals. 3. The evidence produced before the Trial Court finds an elaborate mention in the judgment dated 16.09.2019. Therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 4. Mr. Iftikhar Ahmed Shah advocate for the appellants mainly contended that there is no direct evidence with regard to any aspect of the matter; that prosecution has miserably failed to establish unbroken convincing chain, which was to be proved, which would lead to the conclusion of the guilt and culpability of the appellants and which completely rules out the hypothesis of the innocence of the appellants. Mr. Shah has disputed authenticity of the last seen evidence furnished by P.W-07 Muhammad Amir and P.W-10 Azhar Hussain by the prosecution. Learned counsel for the appellants further submits that even if testimonies of P.Ws Muhammad Amir and Azhar Hussain relating to appellants and deceased persons being last seen together in the house is to be accepted, there is no proximity at all between the deceased being last seen in the company of the appellant Jahanzeb and the discovery of the dead bodies from the house. He further points out that not only is there no proximity of time, there is no proximity of place; that a test identification has no legal value in this case, because PW-10 Azhar Hussain had visited Police Station Model Colony on 15.03.2015 and on the said date both the accused were already confined at the said Police Station, possibility could not be ruled out that PW Azhar Hussain had seen accused at police station before identification parade. It is further contended that PC Hizqiel son of Anwar was made to stand in the row of dummies by the Civil Judge and Judicial Magistrate at the time of holding of identification parade, he was also posted at the said police station, it has been admitted by the I.O in his evidence. It is argued that P.Ws Mst. Nasreen and Mst. Parveen were present in the house of the deceased at the time of incident and had identified dead body of Mst. Razia Sultana as per inquest report dated 28.11.2014 at Ex. 13/B, but prosecution gave up both these ladies and withheld material evidence, non-examination of these material witnesses would be fatal to the prosecution. As regards to the recovery of pistol on the pointation of accused Syed Murtaza from railway crossing on 12.03.2015 is concerned, it is submitted that prosecution had failed to prove safe custody and safe transmission of the pistol to Ballistic Expert. Lastly, argued that prosecution had failed to prove its case against appellants beyond reasonable doubt. In support of the contentions, reliance is placed upon the cases Bahlol Khan Kasi v. Azmatullah Kasi and another (2020 PCr.LJ 1633), Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410) and Muhammad Asif v. The State (2017 SCMR 486). 5. Mr. Muhammad Iqbal Awan, Addl. P.G assisted by Mr. Mehmood A. Qureshi advocate for the complainant argued that prosecution has produced evidence of last seen, recovery of crime weapon, medical evidence and identification of accused through P.Ws Muhammad Amir and Azhar Hussain to connect accused in the commission of the offence. He further argued that PW Azhar Hussain had heard gunshot report in the house of deceased persons on 23.11.2014 when he was at the Shrine of Pir Sahab and had seen appellants on motorcycle at the door of deceased persons; that PW Muhammad Amir had seen accused Jahanzeb in the house of deceased persons before occurrence; that P.Ws Nasreen and Parveen were not material witnesses and non-examination of these witnesses would not be fatal to the case of prosecution. Addl. P.G further argued that both accused were picked up by P.Ws Muhammad Amir and Azhar Hussain in the identification parade. Learned A.P.G. argued that accused Syed Murtaza produced crime weapon before police during investigation, report of Ballistic Expert is positive and articles belonging to deceased were also produced by him. Lastly, argued that last seen evidence corroborated by other pieces of evidence is sufficient to maintain the conviction in the case. 6. I have heard learned counsel for the parties and re-examined the entire evidence. 7. The entire evidence of prosecution on which conviction of appellants has been based consists of the following pieces of evidence: (i) Last seen evidence; (ii) Recovery of crime weapon and articles belonging to deceased persons; (iii) The medical evidence furnished by Dr. Aijaz Ahmed (PW-05) and Lady Dr. Nasreen Qamar (PW-06); (iv) Identification parade of appellants/accused through P.Ws Muhammad Amir and Azhar Hussain; (v) Positive report of the Fire-arm Expert. MEDICAL EVIDENCE 8. According to Dr. Aijaz Ahmed (PW-05) on 28.11.2014 at 11:00 p.m., he conducted postmortem examination of Syed Badar-ul-Hassan and found one firearm injury on his person. Cause of death was cardio respiratory failure in the result of firearm injury on chest. Time between death and postmortem was 3 to 4 days. Dr. Nasreen Qamar (PW-06) stated that on 28.11.2014 at 9:00 p.m., she conducted postmortem examination of Razia Begum wife of Syed Badar-ul-Hassan and found 04 injuries on her person. Cause of death was head and face injuries by means of firearm and multiple wounds by means of sharp edged weapon. According to woman medical officer, Mst. Razia Sultana died of firearm injuries as well as injuries caused by sharp cutting weapon; time between death and postmortem was 3 to 4 days. LAST SEEN TOGETHER EVIDENCE 9. As the present case has been structured exclusively on circumstantial evidence. Therefore, the same requires careful reappraisal of evidence to see as to whether all links in chain have been provided by the prosecution or there are missing links in the same. How evidence was procured at different stages and in what manner investigation was conducted. It is the case of prosecution that both accused were arrested by Hyderabad police under Section 54 Cr.P.C and during interrogation, they admitted that they have committed murders of Badar and Mst. Razia Sultana in their house at Karachi. Such case was already registered on 29.11.2014 at PS Al-Falah under sections 302/109/34 P.P.C against unknown persons and dead bodies were shifted to the Hospital on 28.11.2014. House where incident had occurred was jointly pointed out by both the accused. Such piece of evidence was inadmissible in evidence. Thereafter, most important circumstance which the prosecution has relied against the appellants is the last seen evidence of the deceased being last seen alive by P.W Muhammad Amir on 21.11.2014, in the house of deceased persons. In this regard, prosecution has extensively relied upon the testimony of PW-07 Muhammad Amir, tenant in a portion of the house of Badar. According to evidence of P.W-07 Muhammad Amir, he had seen accused Jahanzeb in the house of deceased on 22.11.2014 but according to medical evidence both deceased were done to death in between 24.11.2014 to 28.11.2014 which clearly shows that there was gap of two days without explanation. PW Muhammad Amir has not specifically mentioned first or second floor of the house where he had seen accused Jahanzeb on 22.11.2014. It has come on record that PW Muhammad Amir was residing with his family in the said house, but prosecution has failed to examine wife of the PW Muhammad Amir for the purpose of corroboration. According to PW Muhammad Amir, he had got telephone number of brother of deceased from one Basit when Badar did not attend his call but said Basit has also not been examined by the prosecution. Prosecution has also heavily relied upon the evidence of PW-10 Azhar Hussain. He has deposed that on 23.11.2014, he had gone to shrine of Peer Sahab situated at Al-Falah to pray for his job. It was morning time. Several persons were already there, he heard gunshot report from adjacent house. After 45 minutes of firing, when he was waiting outside the shrine, he saw that a person who was sitting on motorcycle and another person came out of the house of the deceased, he was carrying a box in his hand. PW-10 Azhar Hussain further deposed that he went inside Shrine to meet Peer Sahab, who advised him to come back after 5/6 days. It is stated that after 5/6 days, he came back and came to know from the peoples who had gathered at Shrine that husband and wife residing in the house adjacent to shrine from where he had heard gunshot report have been killed and culprits have been arrested by the police. After hearing this news, above named PW went to PS Model colony to see the culprits. He narrated story to the I.O, who recorded his 161 Cr.P.C statement on 15.03.2015. According to P.W Azhar Hussain, he appeared before the Magistrate on 17.03.2015 and identified accused Jahanzeb and Syed Murtaza in the identification parade. 10. In the present case testimonies of P.Ws Muhammad Amir and Azhar Hussain on the aspect of last seen is extremely tenuous and lacks independent corroboration. PW-07 Muhammad Amir has not mentioned the date at which he had seen accused Jahanzeb in the house of deceased persons. He had not specifically mentioned about ground or first floor of the house where he had seen accused Jahanzeb standing on the relevant date. Moreover medical evidence does not support his evidence. P.W Azhar Hussain was a chance witness, he failed to plausibly explain his presence at Shrine on the day of incident. PW Azhar Hussain after hearing gunshot report did not narrate incident to anyone and remained calm for 04 months. The proximity of the crime scene played a vital role but according to medical evidence time between death and postmortem examination of both deceased was 3 to 4 days. I, therefore, hold that circumstantial evidence of last seen is not corroborated by independent evidence. Conviction cannot be maintained on such weak type of evidence in a case involving capital punishment. IDENTIFICATION PARADE 11. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midest of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime. The identification proceedings are in the nature of tests, therefore, there is no provision for it in the Code of Criminal Procedure 1898 and Qanun-e-Shahadat Order 1984. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test of identification parade. This is a very common plea of the accused and therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegations. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. In the present case, on 12.03.2015, I.O produced accused Jahanzeb for holding identification parade through PW-07 Muhammad Amir in Crime No. 252/2014 under section 302/109/34…

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