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Official Citation: 2024 YLR 2147
Court / Jurisdiction: Federal Shariat Court
Year of Decision: 2024
Decision Date: 2024-06-12
Parties: Khayal Bacha vs Ijaz Hussain and another
Ruling Summary: This decision was rendered by the Federal Shariat Court on 2024-06-12, officially reported as 2024 YLR 2147. In this matter between Khayal Bacha and Ijaz Hussain and another, 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 2024 YLR 2147
Court Name: Federal Shariat Court Judge(s): Khadim Hussain M. Shaikh, Iqbal Hameedur Rahman (C.J) Title: Khayal Bacha vs Ijaz Hussain and another Case No.: Criminal Appeal No. 02-I of 2024 Date of Judgment:2024-06-12 Reported As: 2024 YLR 2147 Result: Appeal Allowed
JUDGMENT
JUDGMENT IQBAL HAMEEDUR RAHMAN, C.J. Khayal Bacha-appellant was tried in case FIR No. 23 of 2023 registered at Levy Post, Fazal Subhan Shaheed Thana, District Malakand, in which charge was framed under section 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 (Hereinafter called The Ordinance) and Sections 302, 427, 468/471 of the Pakistan Penal Code, 1860 (Act XLV of 1860) (Hereinafter called The Code) and section 15 read with section 19 of The Khyber Pakhtunkhwa Arms Act, 2013 (Hereinafter called the Arms Act of 2013) and after conclusion of trial, the above named appellant was convicted by the learned Additional Sessions Judge/MCTC, Malakand at Batkhela, through judgment dated 21st of December, 2023, under Section 302 (b) of The Code, awarded him sentence of rigorous imprisonment for life, requiring him to pay compensation to the tune of Rs.10,00,000/- (ten hundred thousand) to be reimbursed among the legal heirs of Ilyas Hussain Ali Madad (deceased) under section 544-A of the Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called the Act V of 1898). In case of default in payment of compensation, the same was ordered to be recovered as arrears of land revenue from the estate of the appellant and if the same was not recoverable, the appellant had to further undergo simple imprisonment for six months. i. Concluding about the proof of charge under section 17(4) of The Ordinance, the appellant was awarded sentence of rigorous life imprisonment along with fine of Rs.1,00,000/- (one hundred thousand) in default whereof to further undergo simple imprisonment for three months. ii. Formulating opinion about the proof of offences Sections 468/471 of The Code, the appellant was awarded sentence of three years imprisonment for each of the offence under Sections 468 and 471
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of The Code with fine of Rs.50,000/- (fifty thousand) each of the above offences and in default of payment of fine to further undergo simple imprisonment for two months for each of the fine. iii. In addition to above, the appellant was also convicted under section 19 of the Arms Act of 2023 and sentenced to pay fine of Rs.3000/- in default whereof to further undergo simple imprisonment for one month. However, the appellant was acquitted from the charge under section 15 of the Arms Act of 2013. iv. Granting benefit of Section 382-B of the Act V of 1898, it was further held that the sentences awarded shall run concurrently. 2. The appellant being dissatisfied with the conviction and sentences awarded to him has preferred appeal claiming acquittal while setting aside the judgment impugned. 3. It was an un-seen and un-witnessed occurrence. Murasila (Ex.PA/1) was drafted by Investigating Head Constable-Obaid Khan in view of information furnished to him regarding unidentified bullets riddled dead body which was identified through the driving license to be that of Ilyas Hussain Ali Madad, lying near Saddam Crush Plant at University Road, who mentioned the features of the dead body in the said Murasila, also prepared injury sheet (Ex. PW-16/1), inquest report (Ex. PW-16/ 2), recovered 04 empties of pistol which were sealed in Parcel No.1 and Parcel No.2 (Ex.PB) and secured blood through cotton which was sealed in Parcel No.2 (Ex.PC) which were taken into possession vide Ex.PW-7/1. The Crime Report (Ex.PA) was recorded by Ijaz Ahmed, M.H.C. (PW-5) on 16th February, 2023 at 19:20 hours. Dead body was escorted to Civil Hospital Thana through Hazrat Bilal Constable-6225 (not produced) in the ambulance of Rescue-1122 for autopsy, which was conducted by Dr. Habib Khan (PW-4) and the post mortem report is (Ex.PW4/1). The Medical Officer opined that the deceased died due to wounds as mentioned in Post-Mortem report. 4. Since the assailants were unknown, therefore, there was no development in the investigation till the time of formal arrest of the appellant on 6th of March, 2023 vide memo. (Ex.PW-16/30). However, after the arrest of appellant, it was revealed in the investigation that deceased Ilyas Hussain Ali Madad, real brother of Ijaz Hussain (PW14), in pursuance of conspiracy, was engaged by Khayal Bacha, the appellant, under the pretext of negotiation regarding sale and purchase of vehicles, taken to Chakdara, Batkhela, where he was done to death while snatching the TZ Prado. 5. Since the appellant did not plead guilty to the charge, therefore, prosecution produced 16 witnesses including Syed Mansoor Shah Bukhari, Senior Civil Judge (PW-3), Dr. Habib Khan (PW-4), Juma Said (PW- l2), Sajid Hussain last seen witness (PW-13), Ijaz Hussain, brother of deceased (PW- 14) and Obaid Khan, IHC (PW-16). 6. The appellant in his statement recorded under section 342 of the Act V of 1898 denied the whole incriminating evidence put to him and while pleading false implication claimed acquittal. 7. Conclusion of trial as observed earlier resulted in recording of conviction and awarding sentences to the appellant, the detail of which has been given in para (1) of the judgment. 8. Learned counsel for the appellant contended that the assailants, who committed the murder of deceased at unknown time while, the matter was reported on 16.02.2023 at 19:20 hours and no one was nominated in the crime report. Moreover, no incriminating articles including belongings of deceased were recovered from the possession of the appellant or on his pointation and there is no judicial or extra judicial confession of the appellant. Prosecution witnesses were examined under Section 161 and 164 of the Act V of 1898 after visit of IHC-Obaid Khan to Skardu. Making reference to the investigation, it was contended that the said IHC-Obaid Khan (PW-16) had no legal power or legal authority to investigate the murder case in view of second proviso to subsection (3) of Section 26 of Police Act, 2017, KPK and visit of IHC-Obaid Khan to Skardu for the purpose of investigation does not appeal to prudent mind as the occurrence had taken place at University Road, Batkhela, Malakand and recoveries were also made in that area. Continuing the arguments it was contended that TZ Prado was recovered from Motorway police, who handed over the same to
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IHC-Obaid Khan but it was not recovered from the possession of or on the pointation of the appellant, besides, the places of recovery of vehicle and dead body are different. Drawing our attention to the Call Data Record (CDR) (Ex.PW-2/1), it was submitted no call has been made from the number of accused to the deceased and info list containing name and CNIC produced by PW- 2 is mere information regarding ownership of the SIM numbers of deceased and appellant. Though, on the day of occurrence the deceased was in contact with many other people but they were not interrogated as to why they were in touch with deceased on telephone. Referring to sending of two empties which were sent to the FSL were returned and after recovery of .30 bore pistol, two empties were again sent along' with pistol to the FSL but there is no mention of return of two empties which were earlier sent to the FSL, while the magazine of .30 bore pistol recovered from appellant was not examined by FSL. It was further submitted that it is the case of circumstantial evidence in which no evidence is against the appellant and the Hon 'hie Supreme Court has held that in circumstantial case, evidence can be fabricated easily. To substantiate the contention, it was highlighted that no report of CCTV Video footage from Motorway officials Swat was placed in this case by the IHC- Obaid Khan in order to conceal the identity of real culprits and it is surprising that the appellant after commission of murder snatched TZ Prado which was on the same day found abandoned on Motorway after crossing Chakdara Toll Plaza. Further argued with reference to evidentiary value of the identification parade, it was submitted that the appellant was shown to the witnesses and his photos were also sent to them by the IHC-Obaid Khan prior to identification parade. In this regard PW-13 Sajid Hussain admitted that prior to identification parade IHC-Obaid Khan had already his mobile phone number. Summing up the arguments, it was submitted that the learned trial Court considered and appreciated the inadmissible, un-corroborated, un impeachable and planted evidence of prosecution, which had no evidentiary value as it was fabricated and tailored one and by no stretch of imagination can be used in capital charge but the learned trial Court convicted the appellant on the basis of scattered pieces of evidence. Relying upon the Ratio expounded in that in "Kashif Ali alias Kalu v. The State and another" (2022 SCMR 1515), "Bashir Muhammad Khan v. The State" (2022 SCMR 986) it was submitted that in view of glaring contradictions, benefit of doubt has to be extended to appellant not as a matter of grace and concession but as a matter of right. 9. Contrarily, learned counsel for the respondent No.1 contended that accused was lastly seen in the company of deceased at Fizagat Hotel by PW-13 Sajid Hussain. Making reference to the call made from suspected SIM number i.e. 0345-9217263 which was used by the accused Khayal Bacha to SIM No.0344- 5577595 which was in the name of deceased Ilyas Hussain Ali Madad and motive behind the occurrence was snatching TZ Prado from the deceased. Regarding recovery of four empties from the place of occurrence, it was contended that the said empties matched with pistol of the accused. Citing the statement of Tehmid Gul PW-2, it was contended that not giving IMEI Number of Mobile Q-116 may be an inadvertent mistake. It was also submitted that the appellant has not claimed enmity for false implication by the prosecution while making his statement under section 342 of the Act V of 1898 and in response to the question as to why this case was lodged against him and why the PWS deposed against him, the accused/appellant could not give plausible or rational reply but simply claimed innocence. Concluding the arguments, it was submitted that the prosecution has proved its case beyond the shadow of doubt as the defence could not point out any dent in the prosecution evidence. Hence, the appellant is not entitled to any relief. 10. Learned State counsel while endorsing the judgment of the learned trial Court and adopting the arguments of learned counsel for the respondent No.1 also contended that it is a case of circumstantial evidence and no chain connecting the guilt of accused to the neck of deceased is broken. Further contended that the empties recovered from the place of occurrence were matched
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with the pistol of the appellant whose license was in his name and according to medical report, the marks of blackening shows that deceased was fired at close range. He finally submitted that the appellant has rightly been convicted and awarded sentence. 11. Conscious consideration ha been given to the arguments advanced while scanning evidence adduced by the prosecution. 12. It was an unseen occurrence. Crime Report (Ex.PA) was lodged against un-identified assailant(s). After lapse of seven days of the occurrence, on 23rd of February, 2023, Ijaz Hussain, brother of the deceased (PW-14) recorded statement under Section 161 of the Act V of 1898 wherein he charged unknown assailant(s) for murder of his brother. However, he implicated the appellant on 6th of March, 2023, by way of supplementary statement recorded under Section 164 of the Act V of 1898 for commission of murder of deceased Ilyas Hussain Ali Madad by the Appellant-Khayal Bacha and snatching TZ Prado which was abandoned at Swat Motorway. But admittedly the said supplementary statement was not exhibited in evidence. It is desirable to add here that Ijaz Hussain, brother of the deceased while appearing as PW-14 deposed that: During his cross-examination he also admitted that "It is correct that during the course of investigation it was the levy officials who told me that one Khayal Bacha has murdered my brother". In the light of above, implication of appellant by way of supplementary statement on behalf of Ijaz Hussain, brother of the deceased (PW-14) cannot advance the plea of prosecution even to connect the said appellant in the commission of crime. The said statement got no legal value and sanctity being hearsay, as such nomination of the appellant/Khayal Bacha in supplementary statement cannot be taken into consideration. Article 71 of Qanun-e-Shahadat Order, 1984 (President Order No.10 of 1984) (Hereinafter called Order 10 of 1984) conveys that only direct evidence is admissible whereas hearsay evidence is inadmissible. For ready reference the said article is reproduced hereunder: "71. ORAL EVIDENCE MUST BE DIRECT: Oral evidence must, in all cases whatever be direct; that is to say:- If it refers to a fact, which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact, which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact, which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treaties commonly offered for sale and the grounds on which such opinions are held, may be proved by the production of such treaties if the author is dead, or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection:
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Provided further that, if a witness is dead, or can not be found or has become incapable of giving evidence, or his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case the Court regards as unreasonable, a party shall have the right to produce, "shahada ala al-shahadah" by which a witness can appoint two witnesses to depose on his behalf, except in the case of Hudood." In this regard reliance is also placed upon the dictum laid down in "Muhammad Azam and another v. Khalid Mehmood and another" (2013 PCr.LJ 36) that: "9. According to the FIR. the complainant lodged the same after getting information from one Saleem about the death of Shaukat, deceased. He himself is not a witness of the occurrence. He was just an informer and his statement can be treated as hearsay evidence which cannot be treated as evidence in the eye of law. A reference is made to a case titled Arshad Mahmood v. Raja Muhammad Asghar and another [2008 SCR 345] in which it has been held as under:- "8. According to prosecution (he complainant, Arshad Mehmood, was not present at the place of occurrence, but when he appeared as a witness before the trial Court, he deposed that the accused Raja Muhammad Asghar fired bullet, which hit Yasir. He also stated that it was told to him by his wife, therefore his evidence is a hearsay evidence. Now the question emerges whether his wife also stated before the Court that she narrated the whole story to her husband. If she would have deposed as such, only then the evidence of Arshad Mehmood would have been admissible as provided in Article 71 of Qanun-e-Shahadat. We have gone through the statements of Arshad Mehmood and Mst. Tazim Akhter, wife of Arshad Mehmood. Arshad Mehmood stated categorically that the story was narrated to him by his wife, but Mst. Tazim Akhter nowhere stated that she told or narrated the story to her husband, therefore, the evidence of Arshad Mehmood was not admissible because Article 71 of Qanun-e-Shahadat conveys that only direct evidence is admissible and it is mandatory to rely upon direct evidence and indirect evidence is not admissible." and in the case of "Sajjan Solangi v. The State" (2019 SCMR 872) that: "However both the witnesses claimed that even Muhammad Hassan Solangi at the spot told the same facts to them but it is prosecution's own case that these two witnesses were not the eye- witnesses and they deposed upon the information allegedly furnished by Muhammad Hassan Solangi. Admittedly, Muhammad Hassan Solangi was never produced by the prosecution in this case nor he was summoned as a C.W. to confirm the assertion made by these two witnesses who according to both the courts below are the witnesses of ocular account. According to the Qanun- e-Shahadat Order, 1984 the evidence of Sikandar Ali Malkani (PW2) and Muhammad Nawaz (PVC- 3) is hearsay and hearsay evidence cannot be made basis for conviction." Therefore, deposition of Ijaz Hussain, brother of deceased (PW-14) implicating the appellant through supplementary statement is nothing but hearsay, which cannot be taken into consideration nor acted upon. Even, the said supplementary statement was not exhibited in evidence. 13. Referring to the statement of Sajid Hussain, (PW-13) who had lastly seen the deceased with the appellant was heavily relied upon on behalf of the prosecution. Though the said witness has stated that he was working as tourist guide yet he could not explain his presence at parking area of Karakarum Hotel, Fizagat, Swat on the day of occurrence where he along with Ijaz Hussain son of Ahmed (not produced) and others had lastly seen the deceased negotiating for sale and purchase of vehicles. His statement under Section 161 of the Act V of 1898 was recorded eleven day after the occurrence on 27.02.2023 which reflects that he kept mum and did not disclose the fact of lastly seeing deceased in the company of the appellant to Ijaz Hussain, brother of the deceased (PW-14). He also got recorded his supplementary statement under Section 164 of the Act V of 1898 on
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06.03.2023 but ,the same was not exhibited in the evidence. Delay of eleven days in recording his statement under Section 161 of the Act V of 1898 without any plausible explanation casts serious doubts on veracity of his statement. The Apex Court in case of "Abdul Khaliq v. The State" (1996 SCMR 1553) has held that: "There is no explanation furnished by the prosecution for examination of Mir Qalam after 20 days of the incident and for examination of Abdul Jabbar and Muhammad Shah after one month and three days of the incident. It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay." While deposing in his cross-examination, Sajid Hussain (PW- 13) admitted that "I hare not shown relevant entry in the register of Kura Kuram Hotel in order to establish my stay there. The witness volunteered that it is not my job and I.O had perused the CCTV Camera recording to rely on my presence at the relevant time." Failure to produce proof of his stay in the Karakarum Hotel and non-production of CCTV Camera footage of the said hotel raises serious doubt and is sufficient is to disbelieve his evidence. Even if, testimony of Sajid Hussain, (PW-13) is believed as gospel truth, there is gap of more than 9 hours between lastly seeing the deceased and his death that suggests possibility of deceased being killed by someone else which cannot be ruled out. Even otherwise, evidence of last seen requires corroboration which by itself is not sufficient to sustain charge of murder against the appellant. Reliance is placed on the dictum laid down in the case of "Ghulam Mustafa alias Ziau v. The State" (PLD 1991 SC 718) and "Rehmat alias Rahman alias Waryam alias Badshah v. The State" (PLD 1977 SC 515) holding that: "On a balance of the decided cases it appears that the circumstance of the deceased having been last seen in the company of'he accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person whc was last seen alive in his company." Argument that Sajid Hussain (PW-13) and Ijaz Hussain, brother of deceased (PW-14) gave motive of snatching TZ Prado by the appellant would not advance the plea of prosecution in the absence of any credit worthy incriminating evidence, which the prosecution failed to prove. 14. Nomination of appellant in this case was made through suspected number which was installed in the suspected IMEI of mobile set wherein allegedly appellant Khayal Bacha used his SIM number. The learned trial Court in para 14 of impugned judgment has discussed that: "14. Undeniably in the instant case, the CDR of the suspected SIM No. 0345-9217263 led to the nomination of the accused facing trial in the instant case. The said suspected cell number was spotted by the IO in the call history of mobile set of the deceased Ilyas Hussain and the CDR, EX- PW-2/1 also confirmed that the deceased was called on his cell number No.0344-5577595 from the suspected cell No.0345-9217263 on 16-02-2023 at 7:03:58 PM. (page-2 of CDR). The said suspected SIM No.0345- 9217263 CDR also confirmed that the deceased was contacted on his cell No.0344- 5577595 at 07:03:58. The IMEI of the suspected SIM No is 86557006013417 (page-05 of CDR). The previous CDR of the suspected No.0345-9217263 revealed that the said SIM was previously used in another mobile set bearing IMEI No.35718889434770 (page-07 of CDR) and there after it was used in mobile set bearing IMEI No.35603394060254 till 25-07-2022 (page-12 of CDR). There after the suspected SIM No. 0345-9217263 was switched to IMEI No.85557006013417 till the date of alleged occurrence (page-14 of CDR) and on 18-02-2023, SIM No. 0340-7656735 was installed in the said mobile set. On 21-02-2023, SIM No.0348-1964978 was used in the mobile set having IMEI No.
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85557006013417 (page-15 of CDR). The said SIM No. 0348-1964978 belonged to Zakir Hussain, PW-15. It was disclosed by Zakir Hussain, PW-15 that he had exchanged his mobile set with Qari Younas for mobile set, Q-116 that was handed over to the IO." 15. Adverting to evidence of Tehmid Gul. DFC/Computer Operator, who while appearing as PW-2, produced Call Data Record (CDR) and info list (Ex.PW-2/1) in respect of SIM numbers 0344-5577595 and 0355-5417440 which were in the name of deceased Ilyas Hussain Ali Madad, and a suspected SIM number 0345-9217263. During his cross-examination he also Introduced SIM numbers 0340-8486930 and 9235541440 which were owned by the deceased. Whereas, Call Data Record of SIM number 0340-8486930 which was in the use deceased's wife in Skardu (Gilgit) was not available. One Shujaat Hussain, whose SIM number is 0343-0565529, made 17 outgoing and incoming calls to the deceased but the location of the abovementioned calls were different. Surprisingly, the said Shujaat Hussain, who was an important witness, who identified the dead body of deceased at the time of postmortem examination and thereafter received the dead body, could have brought facts of location and in whose company the deceased was travelling which might have been disclosed by the deceased to him, was not produced and given up .by the prosecution putting serious dents to the case of prosecution. However, SIM number 0344-5516191 was in the use of 'appellant Khayal Bacha. The said PW-2 admitted that no call was received by the deceased from the above said SIM number of appellant Khayal Bacha. It was further admitted by the said PW that suspected SIM number 0345- 9217263 was in the name of Umara Khan whose CNIC number is 17101-0399898-3 and Farid Alam whose CNIC number is 15501-4140778-7. PW-2 further stated that as per information obtained from the system available to the office, the suspected number was in the use of Farid Alam but when details about the ownership of the said suspected SIM number was sought from the Cellular company on the basis of bio-metric verification, the Franchise furnished information that the said SIM number was in the name of Umara Khan. He further admitted that record of Franchise and record of bio-metric was not annexed with the CDR and handed over to the I.O. The said witness also added that the…
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