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Official Citation: 2025 SHC 21
Court / Jurisdiction: Sindh High Court
Petitioner: Criminal Appeal 13/2025 (S.B.) Sindh High Court, Circuit at Hyderabad - Aftab Ahmed Rashid & Others (Appellant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2025 SHC 21. In this matter between Criminal Appeal 13/2025 (S.B.) Sindh High Court, Circuit at Hyderabad - Aftab Ahmed Rashid & Others (Appellant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Criminal Appeal 13/2025 (S.B.) Sindh High Court, Circuit at Hyderabad CITATION: 2025 SHC HYD 1838 PARTIES: Aftab Ahmed Rashid & Others (Appellant) ORDER DATE: 04-JUL-25 BENCH: Hon'ble Mr. Justice Riazat Ali Sahar(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Criminal Appeal No.S-13 of 2025 (Aftab Ahmed Rashid & 07 others v. The State) Appellants: Aftab Ahmed Rashid, Sikander Ali, Zahoor Ahmed, Abdul Aziz, Naveed, Ghulam Mustafa @ Asghar, Muhammad Ibrahim, and Altaf (in custody), through Mr. Muhammad Akram Rajput, Advocate.
Respondent: The State through Ms. Sana Memon Assistant Prosecutor General.
Complainant: Abdul Wahid Khaskheli through Mr. Mashooque Ali Mahar, Advocate.
Date of Hearing: 12-05-2025 Date of Decision: 04-07-2025
J U D G M E N T RIAZAT ALI SAHAR. J.: This Criminal Appeal is directed against the judgment dated 30.01.2025 passed by the learned Additional Sessions Judge /MCTC, Matiari, whereby the above - named appellants were convicted for offences punishable under Sections 324, 506(2), 504, 452, 427, 147, 148, 149, 337-H(ii), 337- F(i), 337 -L(i) and 337-F(iii) PPC. The case emanated from FIR No.14 of 2022 lodged at Police Stati on Oderolal Village, in which the complainant alleged that on the fateful day the appellants, armed with weapons, formed an unlawful assembly and trespassed into the complainant’s house. It was also alleged that
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2 they abused and intimidated the inmates, cau sed damage to household articles, and one of the appellants opened fire with a pistol, causing a gunshot injury to Mst. Benazir. After the incident, threats of dire consequences were issued (attracting Section 506(2) PPC), and the assailants fled. The poli ce initially booked the appellants for rioting, house -trespass, attempt to commit murder, hurt, mischief and other related offences in furtherance of common object. 2. During trial, the prosecution examined witnesses including the complainant and other eye witnesses from the family, the medico-legal officer who examined Mst. Benazir’s injury, and the investigating officer (―I.O‖). The appellants denied the allegations in their statements under Section 342, Cr.P.C., claimed innocence and false implication due to prior enmity, and did not lead any defence evidence. The trial Court, in the impugned judgment, convicted all the appe llants on all counts and awarded various terms of imprisonment. Hence, the present appeal. 3. The evidence during trial is reappraised as under: PW-1, Dr. Madeeha, WMO at Taluka Hospital Matiari, medically examined Mst. Benazir and Mst. Wilayat on 22.04.2022. The provisional MLC of Benazir indicated a firearm entry wound on the middle of her left leg, 22.5 cm above the malleolus of the left foot. Notably, there was no wound of exit, and there were no signs of burning on skin or clothing. The nature of the injury was reserved initially and later opined to be Ghayr Jaifah Mutalahmiah under Section 337 -F(iii) PPC.On cross -examination, the doctor
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3 admitted that the type o f firearm was not identified in the MLC. She further stated that the injury might have been caused from a distance of 4 to 5 feet. This is a significant variance from the eyewitness accounts that described the shot being fired from 50 to 60 feet. The absen ce of burning or blackening reinforces the view that the shot was fired from a non-proximate range. The discrepancy in distance of firing becomes relevant when weighing the credibility of the prosecution version. PW-2, the complainant, Abdul Wahid, narrated that the accused persons forcibly entered his house and that accused Aftab Ahmed Rashid fired a shot that struck Mst. Benazir in her left leg. However, in cross -examination, PW -2 deposed that the empty shell was recovered from the place of incident nearly two months after the incident and in juxta position he admitted that the shell had been kept by the complainant himself in the house and was not recovered by the police from the scene contemporaneously. This admission damages the integrity of the ballist ic evidence and raises serious questions about the possibility of evidence tampering. PW-2 further stated that the police did not recover any broken household article nor did they list them. He did not specify what was damaged or its nature and extent. No independent witness from the locality was cited, despite the incident allegedly occurring in a residential area. The non -association of neutral witnesses casts doubt on the veracity of the version advanced. PW-3, Benazir corroborated the complainant’s vers ion by stating she received a firearm injury to her left foot . However, she described the injury as occurring on the foot or ankle area , which contradicts the MLC stating the injury was 22.5 cm above the malleolus. She also admitted
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4 in cross -examination th at the firing was from about 40 to 50 feet, which conflicts with the doctor's estimation of 4 to 5 feet. She acknowledged that there were previous disputes between the parties and that both mashirs (witnesses to the preparation of police memos) were relati ves. This admission, along with the absence of neutral eyewitnesses and inconsistency in the injury’s location, introduces further doubt about the reliability of the incident as narrated. PW-4, Zahid was cited as a mashir. He stated that the IO recovered a n empty shell from the place of incident on 02.06.2022. He conceded that the place of incident was inspected by the IO almost 1.5 months after the occurrence and that he did not know where or how the empty remained available at the scene. The timeline and unexplained availability of a critical piece of evidence like an empty shell fatally damages its evidentiary value. PW-5, ASI Allah Ditto testified that on the day of the incident, injured persons arrived at the police station and were issued letters for medical treatment. He prepared memos of injuries in the presence of Zahid and Iqbal. Notably, he did not indicate if any damage to propert y was observed or documented. The absence of any record of broken household items suggests that the charge under Section 427 PPC was not substantiated by proper investigation. PW-6, ASI Allah Dino, the IO admitted that the FIR was lodged two months after t he incident. He stated that the complainant brought the empty shell, which was then sealed and documented. There was no ballistic matching or timely dispatch to FSL. He did not recover any weapon from any accused. The site inspection memo lacked specific timing, and he acknowledged prior litigation between the
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5 parties. These factors cumulatively render the investigation unreliable. 4. Learned counsel for the appellants contended that the prosecution evidence was replete with material contradictions and lacunae, which the trial Court failed to properly appreciate. He pointed out five serious infirmities in the prosecution’s case: firstly, an inordinate delay of about two months in the recovery of a pistol shell (empty cartridge), which was bizarrely produced by the complainant himself to the I .O long after the incident; secondly, the absence of any independent witness despite the incident occurring in a village/neighborhood, with only related and interested witnesses testifying, casting doubt on the impartiality of the ocular account; thirdly, a mismatch between the medical evidence and the ocular account – specifically, the medicolegal certificate showed the gunshot wound on Mst. Benazir’s left leg about 22.5 cm above the ankle (malleolus), which does not alig n with the complainant’s version of where she was shot; fourthly, no recovery of any weapon (pistol or otherwise) from any of the appellants, nor any other corroborative physical evidence linking them to the crime; and fifthly, a failure to prove the alleg ation of damage to household articles, as neither the specific items broken nor their value was established by any evidence. On the basis of these discrepancies, learned counsel argued that the prosecution had failed to prove its case beyond reasonable dou bt, and the convictions cannot be sustained. He emphasised that under Article 10 -A of the
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6 Constitution (right to fair trial) and settled principles of criminal justice, the appellants are entitled to the benefit of doubt. 5. Conversely, learned Assistant Prosecutor General (―APG‖) supported the trial Court’s reasoning. He maintained that the eyewitnesses’ testimonies were consistent on all major aspects of the occurrence. He argued that any minor contradictions or delays were technical in nature and did not go to the root of the prosecution case. The learned APG further submitted that the injury to Mst. Benazir by firearm and the presence of an empty shell, albeit recovered later, corroborated the fact that a shooting did occur, and he contended that non -recovery of the weapon was not fatal when direct evidence was available. According to him, the convictions were justified and the appeal merited dismissal. 6. I have heard the arguments of both sides and carefully perused the entire trial record. This Court i s mindful that under Article 10 -A of the Constitution , every accused is guaranteed a fair trial, which includes the right to be tried only on credible and legally admissible evidence. In a criminal appeal against conviction, it is the duty of the Court to reappraise the evidence to ensure that the findings are well-founded and free of doubt. Having undertaken such reappraisal, I find that the prosecution’s case suffers from serious shortcomings. The material contradictions and gaps identified by learned def ence counsel indeed find support in the record, undermining the
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7 prosecution’s version. I shall discuss each of these aspects in turn. 7. It is an admitted fact on record that the only crime empty (spent bullet casing) was not recovered by police from the scene on the day of incident. Rather, the record shows that about two months after the incident, the complainant handed over a pistol empty shell to the Investigating Officer. This highly unusual delay and mode of recovery was not satisfactorily explained by the prosecution. No crime empty was secured from the place of alleged incident during the preparation of mashirnama (spot inspection) i mmediately after the occurrence, which casts doubt on whether an empty was actually found at that time or not. The complainant producing an empty shell after such a long interval raises the obvious concern that this piece of evidence may have been manipula ted or planted. In consequence, the authenticity and evidentiary value of the recovered shell is gravely compromised. 8. Our jurisprudence has consistently held that unexplained delays in recovering or dispatching crime empties for forensic examination can render such evidence suspect. If a crime empty is retained for an unreasonably long period or recovered much later without plausible reason, the possibility of tampering cannot be ruled out. In the present case, the empty remained in private hands (with t he complainant) for two months, violating standard procedure which requires police to promptly secure and
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8 seal such evidence. The Hon’ble Supreme Court and High Courts have disapproved of scenarios where empties are produced or sent belatedly. For instance, in Roshan v. The State (PLD 1977 SC 557), it was held that a delay in sending crime empties to the ballistic expert until after recovery of the weapon casts serious doubt on the prosecution’s case. Likewise, in Daniel Boyd etc. v. The State (1992 SCMR 19 6), where crime empties and weapons had been kept together in police custody for over two months before being sent for forensic analysis, the Supreme Court observed that the ballistic report did not advance the prosecution case at all. By necessary implica tion, a fortiori an empty shell produced after two months by an interested party (complainant) — with no documentation of its custody in the interim — is even more unreliable. Such a belated recovery creates a serious doubt about the integrity of the evide nce, and no conviction can safely be based on it. The learned trial Court failed to address this glaring lapse. Its assumption that the empty shell corroborated the ocular account is legally flawed; given the unexplained two - month delay, that piece of evid ence had no corroborative worth and should have been outrightly discarded. In addition, because no firearm was ever recovered (as discussed further below), the empty shell was never sent for any ballistic matching. It remained an orphan piece of evidence. Our scrutiny finds that the IO did not send the empty to any Forensic Science Laboratory (―FSL‖) at the time of recovery. Even if it had been sent after two months, a match could not be made without a recovered weapon.
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9 This makes the empty shell effectivel y irrelevant. The superior Courts have held that even where a weapon is recovered, if the crime empties are not sent to the laboratory in a timely manner or at all, any subsequent matching or the mere fact of recovery is of no evidentiary value. In Zahir Y ousaf v. The State (2017 SCMR 2002), the Supreme Court termed the recovery of a pistol ―inconsequential‖ when no crime empty had been sent for forensic comparison, noting that a positive FSL report was impossible in such circumstances and that merely showi ng the weapon was in working order proves nothing. By the same token, in the present case the belatedly produced empty (without a seized weapon to connect to) cannot bolster the prosecution story in any way. The delayed recovery, rather than corroborating the ocular account, actually undermines it by suggesting that formal evidence was being patched up later to suit the case. 9. The occurrence took place, according to the FIR, at the complainant’s house in a village setting in the evening hours. Besides the complainant and his family members, no other person from the neighborhood was cited as an eyewitness to any part of the incident. All the prosecution eyewitnesses (PW -1, PW- 2, etc.) are close relatives – in fact, the complainant himself and family members including Mst. Benazir (the injured person) – and no independent or neutral witness was examined. It is noteworthy that the incident involved a firearm discharge and a commotion (house-trespass and alleged rioting), which one would
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10 expect to attract atten tion of people in the vicinity. Yet, the prosecution did not produce any villager or nearby resident who could corroborate the happening or even the aftermath. The investigation officer also admitted that, apart from the interested witnesses, he did not re cord statements of any impartial bystanders. 10. Although mere relationship of a witness with the victim/ complainant is not an automatic disqualification, it is a settled principle that where only related or interested witnesses support the prosecution, t heir testimony must be scrutinised with great caution. The Courts generally look for independent corroboration of material particulars to exclude the possibility of false implication due to enmity or exaggeration due to partisan interest. In the case at ha nd, not only are the witnesses interested, but their credibility is further eroded by the fact that their accounts suffer from internal inconsistencies and are uncorroborated by independent evidence. The Hon’ble Supreme Court in Mst. Shazia Parveen v. The State (2014 SCMR 1197) acquitted the accused in somewhat similar circumstances, observing that the ―related witnesses had failed to receive any independent corroboration‖ and in that case even the motive alleged was not proved through independent evidence. The Court noted that where the prosecution relies on related witnesses, absence of independent evidence or corroboration on key points can render the story doubtful.
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11 11. In the present matter, no attempt was made to bring on board any independent witness — for example, no neighbour was asked to witness the recovery of the empty shell or to testify about hearing the gunshot or seeing the appellants’ arrival/escape. This omission is critical, especially since the appellants were all admittedly known to the c omplainant (thus, there was scope for personal vendetta). The investigating officer’s failure to include any neutral person from the locality as a witness (even to the alleged damage of property or other aftermath) goes unexplained. This Court is mindful t hat in some situations independent witnesses may not be available, but here there was no such claim of the incident occurring in a desolate place or odd hour. The only inference from this could be that either no independent person witnessed the occurrence, or the prosecution was not confident that a neutral witness would support its version. In either scenario, the reliance on only interested witnesses without corroboration raises a substantial doubt. Furthermore, when I couple this lack of independent testimony with the other contradictions (especially the medical discrepancy noted below), the credibility of the ocular account becomes even more questionable. The trial Court appears to have taken the statements of related PWs at face value, which is not a safe approach in law. Conviction can indeed be based on testimony of even a single witness, but only if the Court finds it to be unimpeachably credible and trustful. Here, th e family members’ evidence does not pass that stringent test – not only
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12 due to their relationship but because their narrative is impeached by external evidence (medical report) and circumstances. My view finds support from the apex Court’s holding in Shazi a Parveen’s case, where related eyewitness testimony was disbelieved in presence of contradictory medical evidence and lack of independent corroboration. Therefore, the absence of any neutral witness in this case further deepens the doubt already created b y other failings in the prosecution evidence. 12. Perhaps the most striking contradiction in this case is the mismatch between the medical evidence and the eyewitness (ocular) account regarding the injury to Mst. Benazir. The complainant and the witnesses described that during the scuffle, one of the appellants fired a pistol which hit Mst. Benazir on her left foot (as per the FIR and examination -in-chief of PWs). However, the medicolegal certificate (Ex. 3/C) and the testimony of the doctor (PW -1) reveal a different picture. According to the medical officer, Mst. Benazir sustained a gunshot wound on her left leg, 22.5 cm above the left malleolus (ankle). This would place the injury on the calf/shin area of the left leg, well above the ankle. The difference b etween a wound on the foot versus one on the mid -leg is not a trivial discrepancy – it is a materially different location on the body. Under cross -examination, the doctor confirmed the precise location of the entry wound and also noted the exit (if any) or direction, which did not corroborate the
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13 scenario implied by the eyewitnesses. This contradiction was not explained by the prosecution. If the prosecution witnesses were truthful and accurate, the injury location they described should have closely matched the medical findings – but it did not. Such a conflict between the medical evidence and the ocular account is fatal to the prosecution’s reliability, unless convincingly clarified, because it suggests that the eyewitnesses either did not see the injury being caused as they claim, or they exaggerated/mis -stated the nature of the injury. 13. The law is well -settled that when medical evidence belies important aspects of the ocular version, it gravely undermines the prosecution case. In Mst. Shazia Parveen (supra), the Supreme Court noted that the medical evidence had “gone a long way in contradicting the eyewitnesses in many ways” and even the estimated time of the injury/death given by the doctor conflicted with the witnesses’ account, rendering the ocular na rrative doubtful. Similarly, in the present case the site of the firearm injury documented by the doctor belies the complainant’s version of events. If the bullet hit 22.5 cm above the ankle, it could not be correctly described as hitting the foot or ankle . Such a mistake in perception is unlikely if the witnesses were present and attentive, especially since this was a single gunshot causing injury to one person – a key event they would be expected to recall accurately. The inconsistency , therefore, raises a reasonable probability that the incident might not have occurred
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14 in the exact manner alleged, or that material facts have been misrepresented. Moreover, the injury was opined to be ―ghayr - jaifah‖ (non -fatal in nature, likely corresponding to the 337 -F subsections) and there was no bone fracture reported. The prosecution’s claim under Section 324 PPC (attempted murder) hinges on an intent to kill inferred from the act of shooting. Yet, if the single shot was indeed fired but struck a lower limb (and that too not on a vital part), the nature of injury might suggest a different aim or accidental hit. I note this because the learned trial Judge convicted under Section 324 without deeply considering whether the manner of injury and single shot supported the intent to commit qatl -e-amd (murder) or a lesser intention (it could even fall under lesser hurt provisions if the intent was not to kill). However, even leaving aside that nuance, the disparity between the medical and oral evidence pervades a doubt about the veracity of the prosecution’s narrative. Where the eyewitness testimony is in direct conflict with medical evidence on a crucial point, the rule is that the version which is consistent with scientific/medical evidence is preferred, and the other is dis carded. Here, since the ocular account cannot be reconciled with the medical description of the wound, the ocular account cannot be safely believed in isolation. 14. It is undisputed that despite the allegations of the appellants being armed (one with a pi stol who actually fired, and others possibly with sticks or other weapons per FIR), the
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15 investigation yielded no recovery of any weapon from any of the eight appellants. No pistol was recovered from the accused said to have fired on Mst. Benazir. Likewise, if any other appellant was stated to carry a hatchet, stick or firearm during the incident, none of those weapons were secured by the police. The memorandum of arrest and search, as per I.O’s testimony, did not produce any incriminating article. Thus, the re is a complete absence of forensic or physical evidence tying the appellants to the crime – neither the weapon that caused the firearm injury nor any tool that could have been used to damage property was ever recovered. While recovery of a weapon is not a sine qua non for conviction if there is other convincing evidence, its absence in a case so heavily relying on the fact of a firearm being used is a significant missing link. The recoveries (of crime articles) serve as corroborative evidence in support o f ocular testimony. In this case, the prosecution sorely lacked that corroboration. The crime empty, as discussed, was useless without the weapon to compare. Consequently, there was no ballistic report connecting any appellant to the bullet that injured Ms t. Benazir. Our criminal jurisprudence has cautioned that mere recovery of a weapon, by itself, is only a corroborative piece of evidence and not substantive proof of guilt; conversely, non -recovery of the weapon deprives the prosecution of an important co rroborative prop. The Supreme Court in Nazia Anwar (supra) observed that where a crime pistol was allegedly recovered, if the crime empties were not matched with it, such recovery was inconsequential and could
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16 not be treated as corroboration. In Zahir Yous af (supra), as already noted, a pistol recovery was held inconsequential since no empties were…
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