2026 PLP 1329 (YLR)

Ss. 302(b) & 34

Qatl-i-amd, common intention

Appreciation of evidence

Circumstantial evidence

Scope

Accused was charged for committing murder of the brother of complainant and his friend by firing

Prosecution, in order to establish its case, examined 13-witnesses

Complainant, brother of deceased, testified that he received information regarding the murder of his brother and his friend from his sister, and he had informed police as complainant of FIR

Complainant produced the report and also acted as mashir for the recovery of empties, metallic projectiles and other articles from the crime scene

Sister of complainant/witness, although was not an eye-witness deposed that on 11.03.2019, she was informed by her sister-in-law that her father and the appellant had killed her husband and his friend inside a room of their house

Mashir of the place of incident confirmed the recovery of three empties and two metallic projectiles by the Investigating Officer

Investigating Officer visited the crime scene on the pointation of complainant and secured blood-stained articles including a blanket, bed sheet and earth, along with three 9mm pistol empties and two projectiles

Said witness also produced forensic reports and conducted proceedings under S.174, Cr.P.C.

Brother of deceased, friend of deceased brother of complainant, confirmed receipt of his brother's dead body, corroborating the occurrence of the incident

None of the prosecution witnesses were eye-witnesses to the actual commission of the offence and the case rested entirely on circumstantial evidence and post- incident recoveries

In examining the chain of circumstantial evidence connecting the accused to the commission of the double murder, particular attention was drawn to the testimonies of two witnesses, both of whom were independent and natural witnesses with no apparent motive to falsely implicate the appellant

Statements of said two witnesses lent credibility to the prosecution's narrative

Additionally, the testimony of the real daughter of the appellant/convict emerged as highly pertinent and materially relevant to the case

Evidence of real daughter of the appellant/convict was relevant with regard to her direct allegations upon her own father for the commission of murder

Defence failed to offer any reasonable explanation or justification as to why the appellant's own daughter would directly implicate him in a murder case

Crucially, the appellant did not challenge the testimony of his daughter during cross-examination regarding the presence of the mobile phone at the crime scene, nor did he raise any objection concerning her motive or credibility

Daughter of appellant/convict discharged her initial burden of proof under oath under Article 118 Qanun-e-Shahdat Order, 1984, shifting the evidentiary burden to the appellant, who failed to rebut the same before the Trial Court

Biological daughter of the appellant had provided direct and incriminating testimony against her father, unequivocally implicating him in the commission of the double murder

Given the close familial relationship and the gravity of the allegations, statement of said witness carried substantial evidentiary weight and materially reinforced the prosecution's case

No mala fide intent was discernible in testimony of said witness and notably, the defence had failed to challenge her credibility by suggesting any ill motive, bias or grudge

Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to mitigating circumstances, life imprisonment was reduced to imprisonment for 20-years

With said modification in sentence, the appeal against conviction was dismissed, accordingly. Muhammad Abid v. The State and another PLD 2018 SC 813 rel.

Ss. 302(b) & 34

Qatl-i-amd, common intention

Appreciation of evidence

Absconsion of accused

Scope

Accused was charged for committing murder of the brother of complainant and his friend by firing

Record showed that the appellant remained absconder for more than 01 year and finally he was arrested from another Province and his action as fugitive from law was another circumstance where an inference had to be drawn under Art. 129(g) of the Qanun-e-Shahadat, 1984 that he intentionally hid himself in another Province to avoid trial and there was no reason to believe that the appellant had no knowledge of murder of his son-in-law and his friend

Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to mitigating circumstances, life imprisonment was reduced to imprisonment for 20-years

With said modification in sentence, the appeal against conviction was dismissed, accordingly.

Ss. 302(b), 302(c) & 34

Qatl-i-amd, common intention

Appreciation of evidence

Quantum of sentence

Mitigating circumstances

Accused was charged for committing murder of the brother of complainant and his friend by firing

Object of punishment is not only retribution and deterrence but also reformation of the offender

Courts are empowered to exercise judicial discretion in tailoring punishment where mitigating factors exist, ensuring that justice is tampered with equity and compassion

Sentencing must be proportionate to the gravity of the offence and the attending circumstances

In the present case the offence of murder stood proved, the aggravated factors that might justify the imposition of the maximum sentence were not fully established and the impugned judgment did not specify about the sentence in double murder case

In such state of affairs, while maintaining the conviction, Court was inclined to take a lenient view with respect to sentencing

Sentence of life imprisonment awarded to the appellant under S.302(b) P.P.C was converted into sentence under S.302(c), P.P.C and was modified and reduced to the period of 20 (Twenty) years each on two counts

With said modification in sentence, the criminal appeal was dismissed, accordingly. Faiz Ahmad and another v. Shafiq-ur-Rehman 2013 SCMR 583 rel. Ms. Seema Zaidi, Additional Prosecutor General, Sindh for the State. Judgment Dr. Syed Fiaz-ul-Hassan Shah, J.

Through this Criminal Jail Appeal, the Appellant seeks setting aside of the Judgment dated 31.10.2022 (impugned Judgment) of conviction passed by the learned Additional Sessions Judge-I / Model Criminal Trial Court, Malir, Karachi (trial Court), in Sessions Case No.1631 of 2019 (The State v. Ismail Khan alias Razi Gul), for offences under Sections 302/34 P.P.C, registered at Police Station Steel Town, Karachi.

2. The brief facts of the prosecution case are that on 11.03.2019 SIP Shakir Nawab of PS Steel Town on receiving information about the double murders within territorial remits of PS Steel Town, he had Entry No.13 and reached at place of incident /Crime scene which is a house of deceased victim namely Imran Khan situated at Soomar Goth, Karachi and found two dead bodies of deceased (1) Imran Khan son of Saeed Jan and (2) Waleed Wali son of Wali Muhammad. Thereafter, SIP Shakir Nawab shifted the dead bodies of two deceased victims to the Jinnah Hospital, Karachi for post mortem examination and has also recorded 154 Cr.P.C statement of the complainant Abdul Malik, who is brother of deceased victim Imran Khan. Consequently, he has registered FIR for the commission of double murder. It is reported in FIR that brother of complainant, namely, Imran Khan along with his family had been living at Soomar Goth, however, on 11.03.2019 at 1330 hours his relative via phone informed the complainant that his brother Imran Khan and his friend Waleed Wali were murdered, on receiving such sad information, the complainant desperately reached at crime scene along with other relatives and he found dead bodies of his real brother Imran and his friend Waleed Wali which were lying in pool of blood succumbed gunshot injuries. Complainant alleged in FIR that father-in-law of Imran Khan alias Razi Gul and his step brother-in-law Waleed Gul had been compelling Imran to sale out his property situated at Hyderabad and to give them sale proceed money for investment and because of such monetary issues both accused issued threats to Imran of killing and it were the accused who committed the crime hence, FIR. After usual investigation the accused/ appellant was challaned under section 173 Cr.P.C and after trial the accused was awarded sentences as mentioned hereinabove.

3. Initially the charge was framed on 13.11.2019 against the arrested co-accused Waheed Gul son of Abdul Waez and the Appellant at that time was absocond from and could not be arrested, therefore, the Investigation Officer has submitted challan under Section 512 Cr.P.C. against the Appellant. In the first round, the trial Court after recording of the evidence has acquitted the co-accused Waheed Gul vide Judgment dated 02.12.2019. After the arrest of present appellant Ismail Khan, charge was fresh framed by trial Court on 06.01.2021 and after concluding the evidence afresh, the learned trial Court found the appellant as "guilty" and has convicted under Section 302(b) P.P.C for 25 year Rigorous imprisonment (RI).

5. This case pertains to a double murder based on circumstantial and unseen evidence. To establish its case, the prosecution examined thirteen witnesses. PW-1 Abdul Malik, brother of deceased Imran, testified that he received information regarding the murder of his brother Imran and Imran's friend Waleed from his sister Hazrat Bibi, and he has informed police as complainant of FIR. He produced the report at Exh.58 and also acted as Mashir for the recovery of empties, metallic projectiles, and other articles from the crime scene. PW-2 Hazrat Bibi, although is not an eye-witness; she deposed that on 11.03.2019, she was informed by her sister-in-law Maryam that her father Ismail Khan and the appellant Razi Gul had killed her husband Imran and his friend inside a room of their house. PW-3 Zaheer Ahmed Khan served as Mashir of the place of incident and confirmed the recovery of three empties and two metallic projectiles by the Investigating Officer. PW-4 SIP Zakir Hussain Abbasi, the Investigating Officer, visited the crime scene on the pointation of PW-1 and secured blood-stained articles including a blanket, bedsheet, and earth, along with three 9mm pistol empties and two projectiles. He also produced forensic reports and conducted proceedings under Section 174 Cr.P.C. PW-5 Naseem Shah, brother of deceased Waleed, confirmed receipt of his brother's dead body, corroborating the occurrence of the incident. None of the prosecution witnesses are eye-witnesses to the actual commission of the offence, and the case rests entirely on circumstantial evidence and post-incident recoveries.

6. In examining the chain of circumstantial evidence connecting the accused to the commission of the double murder, particular attention is drawn to the testimonies of PW-6 Babu (son of Ghareeb Shah) and PW-7 Waqar (son of Babu), both of whom are independent and natural witnesses with no apparent motive to falsely implicate the appellant. Their statements lend credibility to the prosecution's narrative. Additionally, the testimony of PW-10 Marium, the real daughter of the appellant/convict, emerges as highly pertinent and materially relevant to the case.

7. PW-10 Marium deposed that "On 10-03-2019 at about 0400 hours my husband and his friend Waleed came in house. My husband asked me to go at my father's home along with kids. Then I along with my kids went to my father's home which was just 02 streets away. Then at about 0500 hours I reached at my father's home. In the morning while I was planning to return my home my father was stopping me to go home. Then I asked my father to bring some food for my goat and in the meantime I went to my home. When I reached at home I saw that house was locked from outside with lock, so I again returned to my father's home. Thereafter my father returned and he gave me grass and he then again left for home. Thereafter at about 1300 hours I again went at my husband's home and then entered in the house by climbing the wall. I saw that 125 motorcycle of my husband was parked in courtyard. When I checked the motorcycle I found mobile phone of my father in the pocket of motorcycle. Then I called my sister-in-law and enquired about Imran but she said Imran had not come to her. She asked me to check him in the room but I told her that even rooms are locked. I then took one hammer and broke lock of one room and found that dead body of my husband was lying on the cot while dead body of Waleed was on the floor. Then I made commotions on which Mohalla persons and even my father, mother and step mother came there."

8. She further deposed: "I say that these murders have been committed by my father Ismail alone." During cross-examination, the PW-10 was put certain question which she deposed: "It is correct that I am not eye- witness of the incident, further says but my father/accused Ismail was with him at the time of murder and he had killed him. It is correct that my father left home along with his BANDOOQ. My father left home at 0400 hours and returned at around 0630 hours. It is correct that my father returned along with same BANDOOQ. It is incorrect that no blood stains were available on his cloths when he returned home, further says he changed them. I have not given those blood stained cloths to police. I had visited police station on 03/04 occasions. I visited P.S along with my Nandh (sister-in-law)."

9. The evidence of PW-10 Marium is relevant with regard to her direct allegations upon her own father for the commission of murder finding of mobile phone, witness of event that her father took bundooq and after more than one hour returned back to home with said bundooq as well as seen her own father cloth having blood stain are the necessary facts for relevant fact of homicide in terms of Article 22 of the Qanun-e-Shahadat Order, 1984 which state that: "

22. Facts necessary to explain or introduce relevant facts.- Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue, or relevant fact happened, or Which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose."

10. When confronted with the issue of the mobile phone allegedly recovered from the bag of a motorcycle parked inside the home of deceased Imran, the crime scene, the learned counsel for the appellant contended that the prosecution failed to establish ownership or possession of the said mobile phone by the appellant. Admittedly, neither the motorcycle nor the mobile phone were secured by the Investigating Officer or produced by the Prosecution during trial. Nonetheless, the defence failed to offer any reasonable explanation or justification as to why the appellant's own daughter would directly implicate him in a murder case. Crucially, the appellant did not challenge the testimony of PW-10 during cross-examination regarding the presence of the mobile phone at the crime scene, nor did he raise any objection concerning her motives or credibility. PW-10 discharged her initial burden of proof under oath under Article 118 Qanun-e-Shahdat Order, 1984, shifting the evidentiary burden to the appellant, who failed to rebut the same before the trial court. Additionally, the appellant's prolonged absconsion following the murder of his daughter's husband further strengthens the prosecution's case.

11. PW-10 Marium, the biological daughter of the appellant, has provided direct and incriminating testimony against her father, unequivocally implicating him in the commission of the double murder. Given the close familial relationship and the gravity of the allegations, her statement carries substantial evidentiary weight and materially reinforces the prosecution's case. No mala fide intent is discernible in her testimony, and notably, the defence has failed to challenge her credibility by suggesting any ill motive, bias, or grudge. However, it is a settled legal proposition that in a murder case based on circumstantial evidence, conviction cannot rest solely on the testimony of a single witness, even if credible, without the support of corroborative evidence and chain of evidence through facts and fact of facts. Therefore, while her testimony is significant, it must be evaluated in conjunction with other cogent and corroborative material to sustain a conviction.

12. The second connection is the evidence of two independent and natural witnesses PW-6 Babu son of Ghareeb Shah and his teenage son PW-7 Waqar son of Babu, I have noted that both are residing in the neighborhood of deceased Imran, where deceased Imran and his friend deceased Waleed were murdered. PW-7 deposed that "Then at about 0442 hours I heard one by one six fires and after one minute I heard two more fires. So, I woke up and again take a look. I even noticed some strange voices as somebody was trying to grab somebody. I continuously woke up till 0455 hours and then again slept. At about 0510 hours door of house of Imran which was exactly in front of block factory was opened. I was sleeping in the bed but was awake and saw that one tall lean person came out from the house of Imran and he was wearing some brown cloths which were appearing as it black and he went towards Masjid Side and I thought that somebody is going for Fajr Prayers. . In the evening when I returned my home at 05:00 p.m. I came to know that Imran and his friend had been killed inside the house. My son Waqas who is 14 years old disclosed me at home that at 0815 hours while he was going to drop my daughter to school he met Ismail who told him that your father had quite urgency as he woke up as soon I made fire. My son enquired from him why you made firing on which he disclosed that he was just checking pistol."

13. PW-7 Waqas son of Babu, aged about 16 years, who deposed that: ".. when I reached at the block factory where my father works I met Ismail Pathan, who was also standing there. He stopped me. He told me that my father had quite urgency of waking up when I just made 08 fires. He disclosed that last night two persons came to purchase pistol from him and one of the person made six fires and other two fires for checking the pistol. Thereafter Ismail went away from there and he was wearing brown color cloths and light brown color cot."

14. It is observed that at the commencement of a criminal trial, the prosecution bears both the invariable legal burden and the initial evidential burden to adduce sufficient evidence establishing the accused's guilt beyond the reasonable doubt. Once this threshold is met, the evidential burden may shift to the defence, not as a legal obligation, but as a tactical necessity to create reasonable doubt. The defence may respond by presenting rebuttal evidence or by strategically challenging the prosecution's case through cross-examination and discrediting witnesses and may include a defence plea. The objective remains to generate reasonable doubt, and if successful, the evidential burden may revert to the prosecution. This shifting of burden does not require direct oral or documentary evidence alone; it may be supported by circumstantial evidence, legal presumptions, or reasonable inferences drawn from established facts, and may occur repeatedly throughout the trial depending on the strength of the evolving evidence.

15. In the present case, while PW-10 Marium denied during cross-examination question of defence that it is incorrect she had not seen blood stains on her father's clothes upon his return home, she did not affirmatively depose to this fact in her examination-in-chief. Therefore, the Court held that this fact has not to be proved against the appellant's clothing solely on the basis of cross-examination, as such assertion lacks evidentiary foundation in her primary testimony for this part of cross-examination. Conversely, PW-10 Marium testified that she found her father's mobile phone at the crime scene. Although the mobile phone was not produced during trial, her testimony was sufficient to shift the evidential burden to the defence. However, the defence failed to discharge this burden, as it neither presented rebuttal evidence nor challenged or discredited PW-10's testimony during cross-examination. Consequently, the Court shall presume, under Article 129(g) of the Qanun-e-Shahadat Order, 1984 that the mobile phone of the appellant was indeed found at the crime scene. The second link in the chain of evidence comprises the testimonies of two independent and natural witnesses PW-6 Babu, a neighbor of deceased Imran, and his teenage son PW-7 Waqar. Both reside near the crime scene where Imran and Waleed were murdered. PW-6 testified that around 4:42 a.m., he heard six gunshots followed by two more, along with sounds of a struggle, and later observed a tall, lean man in dark brown clothing exiting Imran's house and walking toward the mosque. That evening, he learned of the murders and was informed by his son Waqar that Ismail had admitted firing shots, claiming he was checking a pistol. PW-7 Waqar corroborated this, stating that Ismail told him two individuals had come to purchase a pistol and had fired six and two shots respectively for testing. Ismail was seen wearing brown clothing and left the area shortly after. These statements provide circumstantial support linking the appellant to the crime. Furthermore, the Appellant remained absconder for more than 01 years and finally he was arrested from KPK and his action as fugitive from law is another circumstance where an inference has to draw under Article 129(g) of the Qanun-e-Shahadat Order, 1984 that he intentionally hide himself out in KPK to avoid trial and there is no reason to believe that the Appellant had no knowledge of murder of his son-in-law and his friend.