Full Judgment Text & Judicial Ruling

2026 Y L R 822

2026 Y L R 822 [Sindh (Mirpurkhas Bench)] Before Ali Haider 'Ada', J Irshad Ali---Petitioner Versus The State---Respondent Criminal Jail Appeal No. S-61 of 2024, Criminal Jail Appeal No. S-411 of 2019 (Old Number), decided on 24th July, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Last seen evidence---Scope---Accused was charged for committing murder of the sister of complainant after raping her---According to the version of the complainant, his sisterhad left the house voluntarily on the day of the incident---However, it was an admitted position that no witness saw the accused accompany the deceased at the time she left the house, nor was 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 deceased along with him, nor was there any direct evidence connecting the accused with the deceased at the crucial point in time---Prosecution had 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---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Delay of two days in lodging the FIR---Consequential---Accused was charged for committing murder of the sister of complainant after raping her---According to the version of the complainant, his sister went missing on 01.09.2016, and it was claimed that his father had informed the police on the same day---Furthermore, all the relatives of the complainant who were cited and examined as witnesses corroborated that claim, asserting that the missing report was conveyed to the police promptly on the date of the incident---However, this assertion was not supported by the documentary evidence available on record---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 became 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 claimed otherwise---Either the version of the complainant party was inaccurate, or the police were concealing facts, but in either case, such a glaring inconsistency casted serious doubt on the credibility of the prosecution's narrative---Upon a comparative examination of the oral and documentary evidence, it became evident that the version advanced by the complainant regarding prior intimation to the police was an afterthought, apparently designed to explain away the delay in lodging the FIR---Said aspect, therefore, seriously affected the trustworthiness of the prosecution's case---In the given context, the delay in lodging the FIR was a material aspect that casted serious doubt on the veracity of the prosecution's version---Unexplained or unjustified delay in the registration of the FIR created room for fabrication and manipulation of facts---Appeal against conviction was allowed, in circumstances. 2023 PCr.LJ 850; 2019 PCr.LJ 1073; 2022 PCr.LJ 186; 2020 PCr.LJ Note 177; 2017 PCr.LJ Note 64 and 2020 YLR 1432 ref. Khial Muhammad v. The State 2024 SCMR 1490; Zafar Ali Abbasi and another v. Zafar Ali Abbasi and others 2024 SCMR 1773 and Muhammad Jahangir and another v. The State and another 2024 SCMR 1741 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Recovery of mobile phone belonging to deceased doubtful---Accused was charged for committing murder of the sister of complainant after raping her---Record showed 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 was silent on a crucial aspect that no mobile phone was recovered from the direct possession of the accused at the time of his arrest---Arrest memo did not reflect any such recovery and no explanation had 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 brother-in-law of the accused---Notably, brother-in-law of accused was never cited as a witness by the prosecution, nor he was produced before the Court to support that version of events---Insertion of said witness into the case at a later stage raised doubts regarding the reliability of the recovery proceedings---Absence of testimony of said witness created a serious evidentiary gap, particularly concerning the chain of custody and ownership of the mobile devices---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, it was 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 had been produced or established through evidence---Said inconsistencies and omissions not only weakened the prosecution's case but also created 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 could not be treated as reliable incriminating evidence against the accused---Said fact raised a significant and unanswered question as to under what circumstances brother-in-law of accused came into possession of the mobile phones allegedly belonging to the deceased and the accused---Such omissions created a significant dent in the prosecution's case, particularly in a matter resting upon circumstantial evidence, which was required by law to be of an unbroken and convincing nature---In the present case, the prosecution's reliance on that weak and unsupported piece of circumstantial evidence rendered the overall case doubtful and lacking in evidentiary integrity---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Withholding material witnesses---Adverse presumption---Accused was charged for committing murder of the sister of complainant after raping her---Complainant, in his deposition, had 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 was a matter of record that none of those alleged females were cited prosecution witnesses, nor they were produced before the Court to substantiate that claim---Such uncorroborated assertions amounted at best to marginal hearsay, and in the absence of supporting testimony from the alleged sources, that version could not be given any evidentiary weight---Failure of the prosecution to produce such material witnesses, who were admittedly available and could have supported the prosecution's narrative, led to a presumption of adverse inference under Art.129(g) of the Qanun-e-Shahadat, 1984---Thus, it appeared that these persons were deliberately withheld for reasons best known to the prosecution---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Delay in recording supplementary statement of complainant---Consequential---Accused was charged for committing murder of the sister of complainant after raping her---Prosecution primarily relied 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---Delayed statements, particularly those that introduced new facts or implicated new accused persons, must be viewed with caution and were 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---Statement was 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 that 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, 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 was taken at face value, it did not justify the unexplained lapse of twelve days in recording the supplementary statement of the complainant under S.161, Cr.P.C.---In such circumstances, the delayed supplementary statement, devoid of explanation and lacking corroborative support, lost its probative value and became fatal to the prosecution's case, especially when the accused was implicated for the first time therein---Appeal against conviction was allowed, in circumstances. (f) Criminal trial--- ----Medical evidence---Scope---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. Muhammad Ramzan v. The State 2025 SCMR 762 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Medical evidence not supporting prosecution case---Accused was charged for committing murder of the sister of complainant after raping her---In cases of strangulation, a fracture of the first and second ribs on both sides is found---Furthermore, under the topic of medico-legal questions relating to the determination of whether death is caused by strangulation, it is noted that abrasions and fingernail marks, sometimes are 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---Medical Officer 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 were usually present in cases of violent strangulation---Nevertheless, the final opinion of the Medical Officer was that death occurred due to shock and asphyxia as a result of strangulation---Appeal against conviction was allowed, in circumstances. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Confessional statement, retraction of---Scope---Accused was charged for committing murder of the sister of complainant after raping her---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 lost its evidentiary value and could not be treated as a voluntary and truthful account---Statement made under S.164, Cr.P.C. by an accused against himself, which was subsequently resiled from, could not be accepted as a trustworthy or reliable piece of evidence unless it was corroborated by other strong independent evidence---Appeal against conviction was allowed, in circumstances. Muhammad Ismail and others v. The State 2017 SCMR 898; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Anwar alias Anoo and another v. The State 2023 MLD 918 rel. (i) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Statement of eye-witness not supporting the prosecution case---Accused was charged for committing murder of the sister of complainant after raping her---Witness, who accompanied the complainant in the search of the deceased, during his deposition, categorically stated that he did not know who committed the murder of the deceased---Said witness did not utter a single word that could corroborate the version of the complainant, particularly with reference to the supplementary statement wherein the accused was implicated---Said evidence did not support the prosecution's claim regarding the alleged knowledge or suspicion against the accused, nor it lent any strength to the complainant's version---Therefore, testimony of said witness appeared to be completely silent on the material aspects of the case and did not provide any corroborative value to the prosecution story---Appeal against conviction was allowed, in circumstances. Irfan Ali and others v. The State 2022 YLR 1097 rel. (j) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Call Data Record and recovery of mobile phones---Inconsequential---Accused was charged for committing murder of the sister of complainant after raping her---Another subject of the prosecution case rested on the Call Data Record (CDR) and alleged recovery of mobile phones---However, the prosecution utterly failed to establish the ownership of the SIM card allegedly used by the accused---No documentary evidence was brought on record to prove that the SIM card was registered in the name of the accused or that the recovered mobile handset belonged to him---More importantly, no phone call recordings or transcripts were produced to show the nature of the conversation between the accused and the deceased---Prosecution neither established the context nor the content of any communication between them---Prosecution's reliance on the CDR without corroborative evidence amounted to mere conjecture and suspicion---Appeal against conviction was allowed, in circumstances. Rehmatullah and 2 others v. The State 2024 SCMR 1782 rel. (k) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Defective investigation---Accused was charged for committing murder of the sister of complainant after raping her---Prime duty of the Investigating Agency was to collect all possible evidence, including scientific and technical assistance, in order to determine the guilt or innocence of the accused---In the present case, the Investigation suffered from glaring lapses---Despite the availability of forensic means, no effort was made to preserve or examine fingerprints from the dead body or the surrounding area, nor was any forensic opinion sought in that regard---Rule 25.14 of the Police Rules, 1934, clearly mandated that the Investigating Officer were expected to take steps to secure expert technical assistance, wherever relevant---Moreover, the prosecution failed to examine marginal but material witnesses, those included the females of the locality, who, according to the complainant, had informed him about the alleged teasing behavior of the accused towards the deceased---Similarly, the owner of the land where the dead body was found was not examined, even the person who allegedly produced the mobile phones of the deceased and the accused was not cited as witness---Omission to examine such witnesses raised serious doubts about the trustworthiness of the prosecution case---Appeal against conviction was allowed, in circumstances. Muhammad Ramzan v. The State 2025 SCMR 762 rel. (l) Penal Code (XLV of 1860)--- ----Ss. 302(b), 376 & 511---Qatl-i-amd, rape, attempted rape---Appreciation of evidence---Rape, proof of---Accused was charged for committing murder of the sister of complainant after raping her---In order to establish the allegation of rape, particularly in the absence of any ocular evidence, it was imperative that the circumstantial evidence must sufficiently connect the accused with the commission of theoffence---In that regard, the Woman Medical officer, upon external examination of the deceased, categorically opined that no blood stains or semen stains were observed---However, vaginal swabs and slides, along with the clothes of the deceased, were sent to the Chemical Examiner---Chemical Examiner reported the presence of human sperm on the vaginal swab but found no human sperm on the vaginal slide or on the clothes of the deceased---Moreover, no DNA report of the accused was available on record---Medical Officer who examined the accused testified during trial that he did not collect any DNA sample from the accused---Said witness further admitted that he was unable to establish any nexus between the accused and the semen detected in the vaginal swab, as there was no DNA matching or grouping carried out to connect the accused with the alleged act---In such circumstances, the evidentiary value of the medical and forensic reports stood significantly diminished, thereby failing to furnish the necessary legal link between the alleged act of rape and the accused person---Appeal against conviction was allowed, in circumstances. Saleem and others v. The State and others 2021 MLD 1184 and Gulzar Shah v. The State 2021 MLD 169 rel. (m) Criminal trial--- ----Benefit of doubt---Principle---If a single loophole in the prosecution's case comes on record, the benefit of such doubt must be extended to the accused. Ahmed Ali and another v. The State 2023 SCMR 781 rel. Muhammad Saad Saeed for Appellant. Nel Parkash Deputy Prosecutor General along with SIP Ghulam Shabir Dalwani, SHO Police Station Shahdadpur for the State. Complainant in person. Date of hearing: 24th July, 2025. 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, P.P.C. 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 FIR 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 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 FIR 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 FIR), and the Tapedar. Subsequently, the learned State Counsel moved an application for amendment of the charge by adding Sections 376 and 511 P.P.C, 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 FIR, 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…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Sindh High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant