Full Judgment Text & Judicial Ruling

2026 Y L R 852

2026 Y L R 852 [Sindh (Hyderabad Bench)] Before Tasneem Sultana, J Haji Khan Notkani---Appellant Versus The State---Respondent Criminal Appeal No. S-126 of 2018, decided on 20th October, 2025. (a) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Unnatural conduct of accused---Accused was charged for committing murder of the brother of complainant---As per record, two witnesses entered the otaque, where the accused allegedly confessed to having caused injuries to the deceased---Such conduct was contrary to ordinary human behavior and did not appeal to a prudent mind, as it seemed improbable that after committing such an offence, the accused would remain at the scene waiting for the witnesses, voluntarily confessing the act, and thereafter leaving the place peacefully without any attempt to flee---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, accordingly. (b) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Place of occurrence doubtful---Accused was charged for committing murder of the brother of complainant---Incident occurred in the month of March, when, as per local custom, people generally slept inside rooms---Witness admitted that the otaque/place of occurrence consisted of two constructed (pacca) rooms, where both the deceased and the accused were sleeping on the paved floor---Upon entering, they observed deceased in an injured state, yet said witness failed to disclose any details regarding the cause or motive of the quarrel between the deceased and the appellant, despite both being guests of a witness---Both the witnesses stated that they slept on bedsheets, yet no blood-stained bedsheet was secured or recovered from the place of incident by the Investigating Officer---Furthermore, the Investigating Officer did not examine the ambulance driver who had shifted the injured to hospital and who too failed to inform the police about the incident---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, accordingly. (c) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Contradictions in the prosecution case---Accused was charged for committing murder of the brother of complainant---Record transpired that the injured was initially shifted to hospital by prosecution witnesses, and for better medical treatment, he was subsequently transferred to other hospital by the same witnesses---However, the postmortem report revealed that on 04.03.2015, the deceased was identified by both the real brothers of deceased and that the dead body was brought to the hospital by Investigating Officer---Perusal of the inquest report further reflected that the police of police station concerned first received information regarding the incident on 04.03.2015 at 1140 hours, through Daily Diary Entry No. 10 and the identification of the body was carried out by the deceased's brothers---Thus, the SHO of the said police station had knowledge of the incident at that point in time---Despite such awareness, no immediate steps were taken by said SHO to visit the scene of occurrence or to secure any valuable evidence from the place of incident---Further it appeared from the record that only on 10.03.2015, after a delay of approximately seven (07) days, Investigating Officer, in the presence of mashirs, visited the place of incident and secured a wooden piece allegedly used in the commission of the offence---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, accordingly. Zafar v. The State 2018 SCMR 326 rel. (d) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of eight days in recording the statements of witnesses---Consequential---Accused was charged for committing murder of the brother of complainant---Record showed that the statements of prosecution witnesses, under S.161, Cr.P.C., were recorded after an unexplained delay of eight (08) days---No justification or plausible explanation for such delay had been brought on record by the prosecution---Such unexplained lapse rendered the prosecution case highly doubtful---Even a delay of one or two days in recording the statements of witnesses, if not satisfactorily explained, was considered fatal to the prosecution case and adversely affected its credibility---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, accordingly. Muhammad Asif v. The State 2017 SCMR 486 and Muhammad Khan v. Maula Bakhshah 1998 SCMR 570 rel. (e) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of seven days in lodging the FIR---Consequential---Accused was charged for committing murder of the brother of complainant---Alleged incident occurred on 04.03.2015 at 05:00 a.m., whereas the FIR was lodged on 10.03.2015, reflecting an unexplained delay of approximately seven (07) days---Prosecution had failed to provide any plausible explanation for the delay in lodging the FIR, which reflected mala fide intention and lack of bona fides on the part of the complainant---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, accordingly. G.M. Niaz v. The State 2018 SCMR 506 and Zafar v. The State and others 2018 SCMR 326 rel. (f) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Statements of witnesses not supporting the prosecution case---Accused was charged for committing murder of the brother of complainant---Complainant was not an eye-witness to the incident---Testimony of complainant was essentially hearsay---Complainant deposed that he received information from friend of deceased that his brother had been injured and that the appellant admitted causing the injury---Complainant's reliance on information from others as to who committed the offence did not convert hearsay into direct evidence against an accused---Complainant himself did not witness the scuffle nor the assault and therefore, could not identify contemporaneously the assailant with such certainty as would safely sustain a conviction for murder---Prosecution witness, who was the host of the deceased and was present in the house, had also not supported the case of the prosecution---Said witness deposed that he was sleeping in his house situated a call distance from his otaque in another street---Said witness did not witness the actual occurrence---Statement of said witness also showed that he did not inform the police---Such conduct was also unnatural and casted serious doubt upon it---Another witness, who narrated the events in the course of cross-examination and corroboration, likewise did not furnish an independent and reliable eye-witness account implicating the appellant in the commission of the offence---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, accordingly. (g) Penal Code (XLV of 1860)--- ----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 39---Qatl-i-amd---Appreciation of evidence---Recovery of wooden piece effected during police custody---Accused was charged for committing murder of the brother of complainant---Alleged recovery of a wooden piece on the pointation of the appellant and his alleged confession before the police were of no legal consequence, as both were effected during police custody and were hit by the provisions of Art.39 of the Qanun-e-Shahadat, 1984---Memo. of recovery was prepared by the munshi of the police station, who was not an independent witness---Prosecution had also failed to produce any evidence to show that the wooden piece allegedly recovered was stained with human blood or that the blood matched with that of the deceased---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, accordingly. (h) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence, doubtful---Accused was charged for committing murder of the brother of complainant---Medical evidence in the case was not free from doubt---Postmortem of the deceased was conducted by Medical Officer, who had expired before the trial---Prosecution examined Other Medical Officer, who merely verified the handwriting and signature of the deceased Medical Officer and produced the postmortem report---Thus, the medical evidence had remained unsubstantiated, as the Medical Officer who actually conducted the postmortem was not available for cross-examination---Moreover, the prosecution had failed to prove that the injury allegedly caused by the appellant was sufficient in the ordinary course of nature to cause death---Chain of custody regarding the blood-stained clothes of the deceased and their transmission to the Chemical Examiner had also not been proved through reliable evidence---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, accordingly. Noor-ul-Haq Qureshi for Appellant. Ms. Safa Hisbani, Assistant Prosecutor General, Sindh along with ASI Muhammad Sharif PS City, Tando Muhammad Khan for the State. Complainant for Nemo. Date of hearing: 29th August, 2025. Judgment Tasneem Sultana, J.---Through this Criminal Appeal, the appellant Haji Khan Notkani has assailed the judgment dated 10.05.2018, passed by learned Sessions Judge, Tando Muhammad Khan (Trial Court), in Sessions Case No.05/2015, arising out of FIR No.34 of 2015 registered at Police Station Tando Muhammad Khan for offence under Section 302 P.P.C, whereby the appellant has been convicted and sentence to undergo R.I. for life and to pay compensation of Rs.200,000/- to the legal heirs of the deceased. Benefit of Section 382-B Cr.P.C. has also been extended to appellant. 2. The facts of the prosecution case are that the complainant Mehmood lodged FIR stating therein that his brother Muhammad Aslam, who lived in Karachi, used to visit his friend Manzoor Ahmed Buriro at Tando Muhammad Khan. On 04.03.2015, Manzoor Ahmed informed the complainant that Muhammad Aslam, who had stayed with him on the previous night, was brought to Civil Hospital Hyderabad with head injuries after a quarrel with another guest, Haji Khan Notkani. Upon reaching the hospital, the complainant found his brother dead. Manzoor Ahmed Buriro and Ahmed Buriro disclosed that they had all been chatting till 1:00 a.m., after which Manzoor Ahmed went home, leaving Muhammad Aslam and Haji Khan in the Otaq. Around 5:00 a.m., Ahmed Ali Buriro informed Manzoor Ahmed of a scuffle; on arrival, they found Muhammad Aslam injured and Haji Khan admitted to causing the injuries. The injured was shifted to Memon Hospital and then Civil Hospital, where he expired. After postmortem and burial, the complainant lodged the present FIR. 3. After usual investigation, police submitted the charge-sheet under section 173, Cr.P.C. against appellant. 4. Having been supplied requisite documents as provided under section 265-C, Cr.P.C., the Trial Court framed a formal charge against the appellant to which he pleaded not guilty and claimed to be tried. 5. To prove its case, prosecution examined seven witnesses. PW.1 complainant Mehmood at Exh.08, he produced the FIR and the receipt of the dead body at Exh.08/A and Exh.08/B respectively. P.W-2 Manzoor Ahmed was examined at Exh.09; he produced his statement under Section 164 Cr.P.C. comprising three pages, recorded before the Magistrate, at Exh.09/A, and the photostat copy of his CNIC at Exh.09/B. P.W-3 Ahmed Ali was examined at Exh.10; he produced his statement recorded before the concerned Magistrate at Exh.10/A, as well as his CNIC at Exh.10/B. P.W-4 Muhammad Aslam was examined at Exh.11; he produced the Danistnama and mashirnama of the blood-stained clothes of the deceased at Exh.11/A and Exh.11/B respectively. Thereafter, the learned ADPP for the State filed an application under Section 540 Cr.P.C. for calling WPC Tanveer Ahmed Bhatti for comparison of the signatures and handwriting of the deceased SIP Ishtiaque Ahmed Awan, which was allowed by consent. P.W-5 Muhammad Arif was examined at Exh.13; he produced the memo. of arrest of the accused at Exh.13/A, as well as the memo. of place of incident and recovery at Exh.13/B. P.W-6 WPC Tanveer Ahmed, well conversant with the handwriting and signatures of SIP Ishtiaque Ahmed Awan, was examined at Exh.14; he produced a letter at Exh.14/A and the chemical examiner's report at Exh.14/B respectively. Thereafter, the learned ADPP for the State filed another application under Section 540 Cr.P.C. for calling Dr. Baldev of Civil Hospital Hyderabad for comparison of the signatures and handwriting of the deceased Dr. Ayoub Wassan, which was allowed by consent. In consequence thereof, Dr. Baldev was examined as P.W-7 at Exh.16; he produced the postmortem report at Exh.16/A. Thereafter, the learned ADPP for the State closed the prosecution side vide statement at Exh.17. 6. The appellant in his statement recorded under Section 342 Cr.P.C denied the allegations and pleaded his innocence. He neither examined himself on oath in disproof of allegations as required under section 340(2) Cr.P.C nor produced any witness in his defense. 7. The Trial Court after hearing learned ADPP and the learned counsel for the appellant/accused convicted the appellant and sentenced him, vide impugned judgment 10.5.2018 which has been impugned in this appeal. 8. Learned counsel for the appellant has contended that the impugned judgment is illegal, void, against the principles of natural justice, and liable to be set aside by this Court; that the appellant is innocent and has been falsely implicated in the present case; that none of the official who examined the injured (deceased) and then referred him to Hyderabad has been examined nor even shown in the calendar of the witnesses to justify the story; that opinion of the Chemical Examiner though shows about the human blood but it is not matched with the blood of the deceased; chain of events is missing in the present case and prosecution has miserably failed to prove the same; that Nazeer Ahmed whose house is also situated near the place of incident but he has not been examined showing that prosecution avoided to confirm from independent persons about the alleged scuffle. Hence, the prosecution case is doubtful, the impugned judgment is not sustainable in law, and the appellant/accused is entitled to acquittal. 9. Learned Assistant Prosecutor General while supporting the impugned judgment contended that the prosecution through consistent and confidence inspiring evidence has proved the charge against the appellant beyond the shadow of reasonable doubt; that the defence has failed to point out any contradiction, infirmity or dishonest improvement in the prosecution evidence. Hence, the appeal is liable to be dismissed. 10. I have heard the learned counsel for the appellant and the learned Assistant Prosecutor General for the State at considerable length, and have examined the available record with their valuable assistance. 11. Admittedly, the present incident of murder is unseen and without any direct eye-witness account. The prosecution's case primarily rests upon the testimony of Prosecution Witness Ahmed Ali (PW-3/Exh. No.10), who deposed that on 03.03.2015 and 04.03.2015 at about 05:00 a.m., he heard a commotion emanating from the Otaque of Manzoor Ahmed Buriro. He thereupon informed Manzoor Ahmed Buriro via mobile phone, as the latter and his companions were guests at his place. Manzoor Ahmed Buriro promptly arrived, and together they proceeded to the Otaque, where they found Muhammad Aslam (the deceased) lying injured on the ground, with blood oozing from his mouth. 12. Upon inquiry, the present appellant Haji Khan allegedly disclosed that a quarrel had taken place between them, during which he caused injuries to Muhammad Aslam. Thereafter, the witness along with Manzoor Ahmed shifted the injured Muhammad Aslam in an ambulance to Memon Hospital, Tando Muhammad Khan, where the medical officer on duty, finding the patient in a serious condition, advised his transfer to Liaquat Medical College Hospital (LMCH), Hyderabad. According to the witness, Muhammad Aslam was shifted in the same ambulance to LMCH; however, Ahmed Ali (PW-3) got down at City Bridge, Tando Muhammad Khan, and went away. He later returned home to collect some money and subsequently travelled to LMCH, Hyderabad, by coaster, where he learned that during treatment, Muhammad Aslam had succumbed to his injuries. The statement of Ahmed Ali under Section 161, Cr.P.C. was recorded by the Investigating Officer, and subsequently his statement under Section 164, Cr.P.C. was recorded before the learned Magistrate. He produced the same in evidence as Exhibit 10/A. 13. From the testimony of the aforementioned prosecution witness, Ahmed Ali (PW-3), it transpires that neither he nor PW Manzoor Ahmed reported the incident to the police, nor was any entry recorded at the concerned police station in that regard. The witness stated that upon their arrival at Tando Muhammad Khan Hospital, it was the medical officer who informed the police about the incident. However, despite being so informed, the police failed to appear at the hospital to initiate legal proceedings or to issue any medical treatment letter to the duty officer. 14. PW Ahmed Ali further admitted that when the injured was shifted to LMCH, Hyderabad, he alighted from the ambulance midway and proceeded to his residence, and even at that stage, he neither informed the police nor visited the police station to report the occurrence. His alleged presence at the place of incident appears doubtful, as he merely stated that he heard commotion from the Otaque of Manzoor Ahmed Buriro, without explaining that he was asleep at that time or that his family members awoke upon hearing such noise. He further claimed that he awaited the arrival of PW Manzoor Ahmed, and only after Manzoor Ahmed 's arrival did they both enter the Otaque, where the accused allegedly confessed to having caused injuries to the deceased. Such conduct is contrary to ordinary human behavior and does not appeal to a prudent mind, as it seems improbable that after committing such an offence, the accused would remain at the scene waiting for the witnesses, voluntarily confessing the act, and thereafter leaving the place peacefully without any attempt to flee. 15. Moreover, during cross-examination, PW Ahmed Ali admitted that in his statement under Section 161, Cr.P.C., as well as in his statement under Section 164, Cr.P.C. recorded before the Magistrate, he did not disclose the mobile number of PW Manzoor Ahmed, whereas he later introduced the same in his deposition before the Court, thereby attempting to improve and embellish his testimony. The police, on their part, failed to obtain the Call Data Records (CDRs) of either PW Ahmed Ali or PW Manzoor Ahmed to substantiate the claim that PW Ahmed Ali had indeed contacted PW Manzoor Ahmed on the night of the incident. PW Ahmed Ali further conceded that the house of PW Manzoor Ahmed was located within calling distance, and despite hearing the commotion, he did not proceed immediately to the Otaque to verify the situation but rather waited for PW Manzoor Ahmed to arrive. He deposed that Manzoor Ahmed reached within five minutes, and upon their entry into the Otaque, which was already open, they found Muhammad Aslam (the deceased) lying injured on the ground. 16. The incident occurred in the month of March, when, as per local custom, people generally sleep inside rooms. PW Ahmed Ali admitted that the Otaque consisted of two constructed (pacca) rooms, where both the deceased and the accused were sleeping on the paved floor. Upon entering, they observed Muhammad Aslam in an injured state, yet PW Ahmed Ali failed to disclose any details regarding the cause or motive of the quarrel between the deceased and the Appellant, despite both being guests of Manzoor Ahmed. Both PW Ahmed Ali and PW Manzoor Ahmed stated that they slept on bedsheets, yet no blood-stained bedsheet was secured or recovered from the place of incident by the Investigating Officer (I.O.). Furthermore, the I.O. did not examine Nazeer Ahmed, the ambulance driver who had shifted the injured to Memon Hospital, and who too failed to inform the police about the incident. 17. The matter does not conclude here. Upon careful examination of the record, it transpires that the injured was initially shifted to Memon Hospital, Tando Muhammad Khan, by Prosecution Witnesses Ahmed Ali and Manzoor Ahmed, and for better medical treatment, he was subsequently transferred to Liaquat Medical College Hospital (LMCH), Hyderabad by the same witnesses. However, the postmortem report reveals that on 04.03.2015, the deceased was identified by Mehmood and Waseem, both real brothers of the deceased, and that the dead body was brought to the hospital by SIP Ishtiaq Ahmed of Police Station Tando Muhammad Khan. 18. A perusal of the inquest report (Exh. 11/A) further reflects that the police of Police Station Tando Muhammad Khan first received information regarding the incident on 04.03.2015 at 1140 hours, through Daily Diary Entry No. 10, and the identification of the body was carried out by the deceased's brothers, Mehmood and Waseem. Thus, the Station House Officer (SHO) of the said police station had knowledge of the incident at that point in time. Despite such awareness, no immediate steps were taken by him to visit the scene of occurrence or to secure any valuable evidence from the place of incident. It further appears from the record that only on 10.03.2015, after a delay of approximately seven (07) days, SIP Ishtiaq Ahmed, in the presence of mashirs Muhammad Arif and Muhammad Tariq, visited the place of incident and secured a wooden piece allegedly used in the commission of the offence. 19. As highlighted above, the material contradictions in the evidence of the prosecution witnesses have undermined the credibility of their testimonies, rendering the prosecution case highly doubtful. In this regard, reliance is placed upon the judgment of the Hon'ble Supreme Court of Pakistan in the case of Zafar v. The State (2018 SCMR 326), wherein it was held that:- 11. Having discussed all the aforesaid aspects of the case, it has been observed by us that medical evidence, motive, recovery and for that matter absconding of appellant are merely supportive/corroborative piece of evidence and presence of eye-witnesses at the place of occurrence at the relevant time has been found by us to be doubtful, no reliance can be placed on the supportive/ corroborative piece of evidence to convict the appellant on capital charge. 20. It is pertinent to mention that the statements of prosecution witnesses, namely P.Ws Ahmed Ali and Manzoor Ahmed under Section 161, Cr.P.C., were recorded after an unexplained delay of eight (08) days, i.e., on 11.03.2015. No justification or plausible explanation for such delay has been brought on record by the prosecution. This unexplained lapse renders the prosecution case highly doubtful. It is well-settled law that even a delay of one or two days in recording the statements of witnesses, if not satisfactorily explained, is considered fatal to the prosecution case and adversely affects its credibility. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court of Pakistan in the case of Muhammad Asif v. The State (2017 SCMR 486), wherein it was held as under: "There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording the Statement of eye-witnesses would be fatal and testimony of such witnesses Cannot be safely relied upon." 21. In this regard, reliance can also be placed on Muhammad Sadiq v. The State (PLD 1960 SC 223), Tariq Gul v. Ziarat Gul (1976 SCMR 236), Muhammad Iqbal v. The State (1984 SCMR 930) and Haroon alias Harooni v. The State and another (1995 SCMR 1627). Similarly, it has been settled by the august Supreme Court of Pakistan in Muhammad Khan v. Maula Bakhshah (1998 SCMR 570) that: "It is settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation." 22. It has been observed that the alleged incident occurred on 04.03.2015 at 0500 hours, whereas the First Information Report (FIR) was lodged on 10.03.2015, reflecting an unexplained delay of approximately…

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