2026 P Cr (PLP)

Muhammad Ayub Khan Tareen, J.

This common judgment shall dispose of Criminal Appeal Nos. 525/2022, 545/2022 and Murder Reference No. 18/2022, as both the appeals are directed against the judgment dated 31st October 2022, passed by the learned Additional Sessions Judge-I, Sariab Division, Quetta in sessions case No. 58/2020, Whereby the appellants Muhammad Ibraheem son of Muhammad Ismail and Manzoor Ahmed son of Muhammad Meer were convicted and sentenced in the following terms:

1. Under sections 302 (b) and 34 P.P.C to suffer capital punishment of death as Tazir each for committing Qatl-i-Amd of deceased Muhammad Ishaq son of Abdul Razzaq, and to pay compensation Rs.500,000/- each to the legal heirs of deceased as provided under section 544-A, Cr.P.C, in default, they shall suffer simple imprisonment for six months each; 2. under section 365 P.P.C to suffer imprisonment for seven years each with a fine of Rs.20,000/ each, in default thereof, to further suffer simple imprisonment for six months each; 3. under section 394, P.P.C to suffer imprisonment for ten years each and to pay fine of Rs.20,000/- each, in default thereof to further suffer simple imprisonment for six months each; All the sentences to run concurrently with the benefit of section 382-B, Cr.P.C. The trial court has sent the Murder Reference No. 18/2022 for confirmation of the sentence of death recorded against the appellants (convicts).

2. Facts of the case are that pursuant to the report (Ex: P/1-A) of complainant Abdul Razzaq (PW-1), a criminal case, vide FIR No. 151/2018 (Ex: P/10-A), dated 12th September 2018, under sections 365 and 34 P.P.C was registered at P.S. Kechi Baig, Quetta, wherein he alleged that on 6th September 2018, his sons Muhammad Ishaq and Abdul Kareem set out on a motorbike to visit the house of Muhammad Ishaq s friend Manzoor Mengal at Western bypass Mian Ghundi; at about 11:00 a.m. Muhammad Ishaq dropped Abdul Kareem at home and turned back on his motorbike with Manzoor Mengal. Muhammad Ishaq did not come home in the night and the complainant thought that he was in his factory, but on the next day when Muhammad Ishaq did not come home, the complainant became worried and contacted Manzoor Mengal, who informed that he had not seen Muhammad Ishaq for two days. Complainant and his relatives tried their best to find whereabouts of Muhammad Ishaq, but he was not found; hence, he got registered the instant FIR against Manzoor Ahmed with the allegation of kidnapping Muhammad Ishaq.

3. After registration of the case, incomplete challan was submitted and the appellant Manzoor Mengal obtained bail from the court and trial commence. Meanwhile, the appellant Manzoor Ahmed was arrested in another criminal case, vide FIR No.43/2019, registered at P.S. Shaheed Manzoor Tareen Quetta; during investigation in that FIR, both the appellants Manzoor Mengal and Muhammad Ibraheem made disclosure that they had kidnapped Muhammad Ishaq and committed his murder; on such disclosure dead body of Muhammad Ishaq was recovered from a well; hence, section 302 P.P.C was inserted in the challan (Ex: P/10-D). The learned Additional Sessions Judge-I Sariab Division took cognizance of the case, framed charge and readover the same to the appellants, to which they pleaded not guilty and claimed trial. To substantiate accusation, the prosecution produced and examined the following evidence: PW-1 Abdul Razzaq (complainant), who produced his application (Ex: P/1-A); PW-2 Rasheed Khan (cousin of complainant), who is witness of identification memo of deceased Muhammad Ishaq s dead body (Ex: P/2-A); PW-3 Abdul Kareem (brother of deceased) is the circumstantial witness; PW-4 Munir Ahmed son of Ghulam Farooq (circumstantial witness); PW-5 Sarfaraz Ahmed son of Noor Ahmed, who was present with PW-1 and PW-2 at the time of recovery of deceased Muhammad Ishaq s dead body from well; PW-6 Kaleemullah ASI is circumstantial witness; PW-7 Dr. Aisha Faiz, Police Surgeon, who examined the dead body of deceased Muhammad Ishaq and issued post mortem certificate (Ex: P/7-A); PW-8 Muhammad Maqbool ASI is the witness of recovery memo (Ex: P/8-A) of documents pertaining to FIR No.43/2019, P.S. Manzoor Shaheed (Article P/1 to P/10), disclosure memo of accused Manzoor Ahmed (Ex: P/8-B); PW-9 Umar Daraz Shah, IP is the first investigation officer, who produced challan (Ex: P/9-A); PW-10 Muhammad Javed, IP is the second investigation officer, who produced FIR (Ex: P/10 A), site plan (Ex: P/10-B), Merg report (Ex: P/10-C-1/4 to P/10-C-4/4) and supplementary challan (Ex:P/10-D); PW-11 Abdul Razzaq son of Abdul Kareem (circumstantial witness); PW-12 Nasrullah son of Muhammad Ali (circumstantial witness); On closure of prosecution evidence, the learned trial court recorded the statements of appellants under section 342, Cr.P.C, wherein they disputed the prosecution story and pleaded their innocence; however, they did not opt to record their statements on oath provided under section 340(2) Cr.P.C, nor produced any witness in defence.

4. On completion of trial, the learned trial court (Additional Sessions Judge-I Sariab Division, Quetta), vide impugned judgment dated 31st October 2022, found the appellants guilty, as such, convicted and sentenced them as mentioned above. Hence, these appeals with the prayer to set aside the impugned judgment passed by the trial court and to acquit the appellants of the charge. Similarly, the learned trial court sent Murder Reference for confirmation of death penalty awarded to the appellants (convicts).

5. Learned counsel for the appellants argued that the FIR was lodged after a significant delay, and no satisfactory explanation has been provided; therefore, deliberation and consultation cannot be ruled out. However, the learned trial court did not consider this delay when deciding the case. They further contended that the prosecution's case relies on the joint extrajudicial confession of the appellants, which is inadmissible evidence; nonetheless, the learned trial court erred in law by relying on inadmissible evidence when sentencing the appellants. They also argued that during recoveries, the investigation officer did not call private witnesses to support the recoveries, violating the provisions of section 103 of the Cr. P.C. Lastly, they requested that due to material contradictions and the cumulative effects of legal and factual issues in the case, by extending the benefit of doubt, the judgment of the trial court should be set aside, and the appellants should be acquitted. Conversely, the learned counsel for the complainant was assisted by the learned State Counsel, who argued that the complainant had adequately explained the delay by filing a report soon after the disappearance of his son; therefore, the delay has caused no prejudice to the appellants. They further argued that the deceased's dead body had been recovered based on the appellants pointation. Such pointation falls under Article 40 of the Qanun-e-Shahadat Order 1984, which is admissible as evidence. The dead body has been duly identified, and thus the trial court correctly convicted the appellants. They lastly requested that the trial court's speaking judgment be upheld.

6. We have heard the learned counsel for the appellants, the learned State counsel, and the learned counsel for the complainant, and we have reviewed the record with their valuable assistance.

7. Brief facts of the case as given in FIR No. 151/2018 dated 12th September 2018, reported by Abdul Razzaq at Police Station Kechi Baig Quetta, states that the complainant's son, Muhammad Ishaq, aged 17 or 18 years, working as a laborer at a cement factory on Sibi Road, Quetta, went on 6th September 2018 around that time with his younger brother Abdul Kareem on his motorbike to meet his friend Manzoor Mengal at his home located at Western Bypass, Mian Ghundi. Around 11:00 AM, Muhammad Ishaq, along with his friend Manzoor Mengal, dropped Abdul Kareem at home, and they both returned on his son's motorbike. Both were seen going by Shakeel Ahmad, a neighbor. When he did not return home that night, it was presumed he might be at the factory. When he still had not returned the next night, they started searching and found he had not gone to the factory. They approached Manzoor at his home, but did not find him there. Later, they revisited Manzoor's house and met him. He said he had not seen Ishaq for three or four days. On 12th September 2018, a complaint was filed against Manzoor and his associates, suspecting they had kidnapped Muhammad Ishaq for an unknown reason.

8. Admittedly, Muhammad Ishaq's murder went un-witnessed, and the case depends on circumstantial evidence. We recognize that cases relying on such evidence require special care and caution. Therefore, while re-examining the evidence, we have taken every possible precaution to prevent and eliminate any false conclusions, as there is always a risk of fabricating circumstantial evidence. As the apex court has held, circumstantial evidence is not always reliable, and depending on it entirely can be risky. The evidence must form a chain of events, with one end connected to the deceased and the other to the accused. If this link is missing, the entire chain collapses. No conviction can be based solely on such circumstantial evidence.

9. The entire structure of the prosecution's case rests on the evidence of the last seen. The apex court in the case of Jaffar Ali v. The State (1998 SCMR 2669) held that although last seen evidence is not enough by itself to prove the crime, it can be enough when connecting the accused to the crime involves making assumptions or when there are reasonable possibilities that someone else committed the offense. However, if the chain of facts is such that no reasonable inference can be drawn except that the accused committed the crime after the victim was last seen with him, then, without a reasonable explanation from the accused, this evidence can be used to convict him. Complainant Abdul Razzaq (PW-1) testified that on 6th September 2018, Muhammad Ishaq and Abdul Kareem accompanied Manzoor. At 11:00 AM, they dropped Abdul Kareem. Ishaq and Manzoor then rode Ishaq's motorbike again, which was seen by Shakeel Ahmed at the time going back. Though Abdul Kareem testified that on the day of his brother Muhammad Ishaq's disappearance, he went back with the accused Manzoor, however, the said motorbike has not been recovered from the possession of the appellants, nor has the prosecution produced Shakeel Ahmed. As such, the evidence of last seen of Abdul Kareem has not been supported by any corroborative evidence; therefore, the same alone cannot serve as the basis for convicting the accused.

10. Regarding the recovery of the deceased Ishaq's body at the instance of the appellants is concerned, the record shows that the body was recovered from an abandoned well on 26th June 2019. At that time, the appellants were neither arrested in the instant case nor was any statement or confession recorded by the investigation officer. The appellants were detained only in the instant case on 26th June 2019. About a month later, on 30th July 2019, the investigation officer recorded the alleged extrajudicial confession, nearly 34 days after the initial find. The record also indicates that on 26th June 2019, the investigation officer took possession of photocopies of FIR No. 43/2019 from the investigating officer of that case. It is a well-established legal principle that each case must be decided based on its facts established by evidence led therein. The Honourable Supreme Court of Pakistan in the cases of Muhammad Khurshid v. The State (PLD 1963 SC 157) and Khushi Muhammad alias Nato v. The State (PLD 1986 SC 146) has held that: The evidence does not make findings arrived at on the evidence before the court, in, one case evidence of that fact in another case. Each case is to be judge upon its own facts established by evidence led therein. Regarding the recovery of Muhammad Ishaq's dead body based on the appellants' indication, as mentioned above, the alleged recovery did not take place at the accused persons' pointing out because it had already been recovered on 26th June 2019, much before their formal arrest in the instant case. Additionally, the alleged extrajudicial confession was recorded on 30th July 2019. As such, the mere extrajudicial confession not followed by any discovery is not admissible, and a dead body already discovered does not fall within the ambit of Article 40 of Qanun-e-Shahadat Order, 1984. Reliance in this regard is placed on the case of Muhammad Mushtaq v. Mustansar Hussain and others (2016 SCMR 2123), where it was held: 2. the prosecution had relied upon only two pieces of evidence and they were last-seen evidence and recovery of the dead body. The alleged recovery of the dead body was admittedly a joint recovery which is inadmissible in evidence. Apart from that the alleged recovery of the dead body had not been effected at the pointing out of the private respondents because the dead body had already been recovered much before the arrest of the said respondents .

11. Further review of the record shows that the accused Manzoor Ahmad was once arrested in this case by PW-9 Umar Daraz, Inspector, on 15th September 2018. After a thorough investigation, he was sent to judicial custody on 28th September 2018, without the recovery of the body or a confession. Therefore, the subsequent recovery based on the accused's indication raises doubt. As a well-established principle of criminal justice, the benefit of any doubt that arises in a prudent mind must be given to the accused, not as a favor but as a right.

12. It is the fundamental principle of criminal law that the prosecution must prove its case beyond a reasonable doubt, and any doubt arising from this must be in favor of the accused. Based on the above discussion, we have significant doubts about the guilt of the appellants. Therefore, while extending the benefit of the doubt to the appellants, the appeals are allowed, and the impugned judgment dated 31st October 2022, passed by the learned Additional Sessions Judge-I, Sariab Division Quetta in sessions case No. 58/2020 is set aside. The appellants Muhammad Ibraheem son of Muhammad Ismail and Manzoor Ahmed son of Muhammad Meer are acquitted of the charge in FIR No. 151/2018, P.S. Kechi Baig. They are in custody, ordered to be released forthwith unless they are wanted in any other custody case. As a result, the Murder Reference No. 18/2022 is answered in negative. JK/87/Bal. Appeals allowed.