2026 P Cr (PLP)

Foreword: Chaudhary Khalid Rasheed, J.

The supra titled appeal has been directed against the judgment passed by the learned Additional District Court of Criminal Jurisdiction Dadyal dated 06.10.2021, whereby accused Zubair son of Sawar Khan ahs been convicted under section 302-A.P.C and awarded 14 years rigorous imprisonment with fine/compensation of Rs.20,00,000/- to the legal heirs of the deceased under section 544-A Cr.P.C., in case of non-payment of compensation the same was liable to be recovered under the Land Revenue Act, he was further sentenced to five years simple imprisonment with fine of Rs.10,000/- under section 15(2)AA vide the impugned judgment dated 06.10.2021, hence, the captioned appeal. Facts which culminated into filing of the captioned appeal briefly stated are, complainant Sajid Mehmood filed a written application Exh.PA at Police Station Dadyal on 24.11.2015, wherein it was reported that his cousin Muhammad Akhtar son of Fazal Hussain was living at Mirpur now a days. Today Muhammad Akhtar came to Dadyal bazaar and at 4.30 P.M he received information that dead body of Akhtar is lying in a car No. QZ/648 ICT, at Bakarwal Colony Balot who has been killed by unknown person(s). On this report FIR No. 163/2015 Exb.PM was registered at Police Station Dadyal in the offence under section 302 A.P.C on 24.11.2015. During investigation the convict appellant was arrested by the police and on recovery of weapon of offence .30 bore pistol without license offence under section 15(2)AA was inserted. The police after formal investigation submitted report under section 173 Cr.P.C before the trial Court on 28.01.2016. The statement of the accused under section 256-D Cr.P.C. was recorded on 10.12.2015, accused person claimed innocence and refuted the allegation, whereupon the prosecution was directed to lead evidence in order to prove the guilt. Upon completion of prosecution evidence, the statement of accused person was recorded under section 342 Cr.P.C on 24.02.2021, he denied the prosecution evidence, claimed innocence but opted neither to produce evidence in defence nor to record his statement on oath under section 240(2), Cr.P.C. At the conclusion of trial, the learned Court below convicted the accused person under sections 302 A.P.C., 15(2)AA and awarded him sentence as mentioned in the preceding paragraph, hence, the captioned appeal. Stance of the convict-Appellant: The learned counsel for the convict appellant at the very outset zealously argued that there is no eye-witness of the occurrence rather the story set up by the prosecution is based on circumstantial evidence and in case of circumstantial evidence of the prosecution has to prove its alleged stance in the manner that one end of the chain touches neck of the accused and the other to the body of deceased but in the instant case many links of the chain are invisible. The learned counsel contended that the motive alleged by the prosecution has not been substantiated rather the prosecution even failed to produce any witness regarding the alleged dispute between deceased and the convict appellant regarding payment of money. The learned counsel claimed that the detracted so-called confession of the convict appellant under section 164 Cr.P.C., is not reliable because the same has not only recorded during detention period but in violation of the mandatory requirements, he further argued that there are several procedural defects in the said statement as neither the same has been handed down by the Magistrate with his handwriting nor footnote was put by him, the same was also not read over the accused and no reason for non-recording of the statement by the handwriting of magistrate himself has been mentioned, hence, not reliable and shrouded in mystery. The learned counsel also stated that SDM/Magistrate who recorded the statement of the accused under section 164 Cr.P.C. has not been cited as witness in the calendar of witnesses and record is also mute that whether any request was made by the accused to the concerned Magistrate by oral or in black and white for recording his statement, thus due to such illegalities/irregularities the same cannot be made basis for conviction. The learned counsel further claimed that the medical evidence is not in line, nexus and consonance with the prosecution story because as per prosecution version the accused fired with .30 bore pistol but as per postmortem report pellets of different sizes were recovered from the body of the deceased, hence, it has been proved that .30 bore pistol allegedly recovered from the convict has not been used in the occurrence. The learned counsel pressed into service that identification of accused during statement of prosecution witness Liaqat Ali has not been conducted, thus, it cannot be imagined that the witness saw the deceased with the accused. The learned counsel submitted that all the prosecution witnesses are closed relative of deceased and even wife of deceased PW-5, made improvements in her Court statement by stated that her husband told her regarding dispute with the convict on payment of amount. The learned counsel emphasized that the prosecution did not recover mobile phone of deceased and from the recovered CDR the convict has not been clubbed with the commission of the offence. The learned counsel vehemently claimed that the prosecution has miserably failed to prove its case beyond shadow of reasonable doubt rather the prosecution story is highly suspicious but the Court below failed to appreciate the relevant ticklish evidence in its real perspective and wrongly convicted the accused, thus requested for acceptance of the instant appeal. He placed his reliance on the following case laws:- 1. 2009 SCR 432 2. 2010 PCr.LJ 1567 3. 2004 PCr.LJ SC AJ&K 864 4. 2022 SCR 1541 5. 1999 PCr.LJ 1898

6. PLJ 1987 Quetta 96 and

7. PLD 1976 Pesh. 135 Refutation of the respondents: The learned counsel for the complainant has filed written arguments which are made part of the file, hence, need not to be reiterated for the sake of brevity. The learned A.A.G vehemently argued that the prosecution has proved its case by producing cogent, convincing and trustworthy circumstantial evidence in shape of recovery of weapon of offence on the pointation of accused, statement of the accused person recorded under section 164 Cr.P.C medical evidence and the last seen evidence, hence, the Court below accurately convicted the accused, thus requested for the dismissal of the appeal. We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution. Court observations and relevant law: As per the contents of FIR this is a blind murder case and all the prosecution story rests upon the circumstantial evidence. The superior Courts have held in plethora of judgments that conviction can be based on circumstantial evidence in absence of direct evidence for the reason that a man can tell a lie but circumstances do not. In the case of circumstantial evidence the Courts have to take extraordinary care and caution before relying on it. The conviction can be based on circumstantial evidence and even a maximum punishment can be awarded when it excludes all hypothesis of innocence, all the facts established are consistent with the hypothesis of guilt of accused through an unbroken, indispensable and interweaved chain of facts that one end touches the body of deceased and other to the neck of the accused but if the circumstantial evidence is not of that standard and quality it would be highly unjustified to rely upon the same. Though in the instant case there is no eye-witness of the occurrence and the whole prosecution story depends upon the circumstantial evidence but there is a sufficient material/evidence to believe and conclude that the convict appellant has committed the alleged occurrence. In the written application filed by the complainant no one was nominated which fact excludes the hypothesis that the convict has been involved in the case with mala fide intention or with some ulterior motive because if the prosecution had any malice intention it should nominate the accused in the FIR. According to the prosecution version the motive behind the occurrence was, the convict obtained loan from a bank, the deceased was his guarantor but thereafter the deceased was demanding the convict to pay money and on the day of occurrence the deceased called the convict. This fact has also not been denied by the defence during cross-examination that the accused did not meet convict on the day of occurrence. The police after registration of the case obtained CDR of mobile number of convict which reveals that deceased called convict at about 10 A.M. The bank record has also been placed on record which portrays that the deceased was the guarantor of the loan obtained by the convict amounting to Rs. 4500,000/- from the statement of Samina widow of deceased it has been amply established that there was a dispute between the deceased and convict on payment of amount and the convict called the deceased to meet him as he has arranged the payment, thus it can safely be concluded that motive alleged in the FIR has been substantiated. The accused also got recorded his statement under section 164 Cr.P.C. on 10.12.2015 before SDM Dadyal whereby he confessed his guilt. Though there are procedural irregularities in the statement recorded by SDM Dadyal but merely on the basis of such procedural irregularities the said statement cannot be brushed aside. Reliance may be placed on 2017 YLR 2052, wherein at page 2068 it has been observed as under: We are also satisfied that confessions of both accused appear to have been made voluntarily, without any inducement or coercion. Mere fact that there were some irregularities in recording of confession would not warrant disregarding the same. However, such procedural irregularities can be considered as a mitigating circumstance for award of lesser punishment especially in case of circumstantial evidence, hence, in presence of confession statement of the convict appellant which has been got recorded by the accused voluntarily on the last date of remand it cannot be observed that the guilty of the accused has not established has been held in 2007 SCMR 808 wherein at page 812 it has been opined as under: The mere fact that confessional statement was made on the last day of physical remand would not be indicative of any doubt regarding its voluntariness because petitioner was aware of the fact that he would not be again given in the custody of police and was being sent to the judicial custody. It is also pertinent to mark that distracted confessional statement of an accused is treated as a weak type of evidence and is required corroboration by other incriminating material and in the instant case the distracted confessional statement of the accused is substantiated by other evidence, hence, is believable and reliable. Reliance may be placed on 1992 SCR 366 wherein at page 368 has been held as follows:- It is settled principle of law that a retracted confession can be acted upon against its maker if the same is materially corroborated by other independent evidence. The recovery of weapon of offence i.e., .30 bore pistol on the pointation of the accused fully linked the accused with the commission of alleged offence. The police also recovered two crime empties inside the car vide Ex.Ph which is also in line with prosecution version and as per the report of chemical examiner the recovered crime empties were identified to have been fired from the weapon of offence which was found in operating condition with safety features functioning properly, thus the recovery of weapon of offence and the report of chemical examiner also strengthen the case of prosecution. The recovery witnesses confirmed the recovery of weapon of offence on the pointation of accused, crime empties by the police from the place of occurrence and remained stable during cross-examination as the defence miserably failed to shake the credibility to the witnesses of recovery which is also a supporting evidence of prosecution. As per medical report the death of the deceased was caused by firearm injuries due to extensive damage of vital organs and large blood vessels by causing profuse bleeding shock. No doubt, as per postmortem report two large and one small pellets were covered from the body of the deceased but merely mentioning pellets in the postmortem report instead of bullets by the doctor it cannot be opined that the medical evidence is not in line, nexus and consonance with the prosecution version because the doctors have never been considered as an arm expert and in this regard only the statement of an ammunition expert can be considered as relevant. Moreover, the opinion of doctor about number of shots and direction even not fatal for prosecution as held in PLD 2005 SC 484 wherein at page 491 it has been observed as follows:- The statement of doctor to the effect that the injuries were the result of single shot, being only an opinion which may or may not be correct and would not be sufficient to discard the direct evidence and suggest the non-presence of eye-witnesses at the spot. The conflict of medical evidence with ocular account in respect of number and nature of injuries, may be relevant to ascertain the role of an individual accused in the occurrence but this is not a valid ground to disbelieve the eye-witnesses and exclude their evidence from consideration. Furthermore, as per report of the doctor blackening was found around the entrance wounds which is a proof of the fact that the deceased was done to death within a near distance which is also in nexus with prosecution version, thus the medical evidence is also supportive to the prosecution version, however, such report of the doctor may only be considered as a mitigating circumstances while determining the quantum of sentence. The objection raised by the learned counsel for the appellant that direction of wound negated the prosecution version is also not sustainable because entry wound from left back side in a sitting position on the neck can be ejected from the left cheek which is very natural position in case of fire from the alleged distance and position. A fire with of .12 bore from short distance may cause of a bigger and huge diagram/hole in the entrance, hence, it cannot be observed that the weapon used was .12 bore rifle instead of .30 bore pistol as alleged by the defence merely for the reaon that doctor used word pellet instead of bullet because he was not a firearm expert as has been held in PLD 2001 SC 107 wherein at page 115 it has been observed as follows:- Moreover as far as doctor is concerned he has no authority in law to express his opinion as to which weapon was used as held in 1986 PCr.LJ 1297. The recoveries are fully established from the statements of recovery witnesses and the safe custody of recovered items is also substantiated. Liaqat Ali last seen witness supported the prosecution version and deposed that at 12 p.m. he saw the deceased in the company of convict appellant, the defence failed to shake the credibility of his evidence during cross-examination. Samina widow of deceased got recorded her statement on 08.12.2018 wherein it was stated that her husband told that he is guarantor of accused Akhtar and has called him to come to Dadyal as he has arranged the amount. The defence also failed to impeach credibility of her evidence during cross-examination. After going through the prosecution evidence and record of the case we are of the opinion that the prosecution has proved the guilt of the accused to the hilt accused, hence, he has rightly been convicted by the Court below and the reasons recorded in support of the impugned judgment are also justified. The Court below was also justified while awarding lesser punishment to the accused for the mitigating circumstances mentioned in the impugned judgment. No doubt, several mitigating circumstances have been found in the instant case for award of lesser punishment but the Court below has already taken lenient view while awarding lesser punishment thus, no further leniency in the quantum of sentence would be justified, hence, we are not inclined to uphold the sentence awarded by the Court blow. Disposal: The crux and epitome of the above debate is, the appeal filed by convict appellant is hereby dropped for having no essence. JK/60/AJK.HC Appeal dismissed.