In The High Court of Sindh, Bench at Sukkur

5/22/24, 6:42 PM IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. S-183 of 2016
APPELLANT(S): Abdul Majeed & others.

Through Mr. Amanullah Malik, Advocate.
RESPONDENT(S): The State through Mr. Afzal Hussain Talpur,

A.P.G
Mr. Ghulam Shabbir Dayo, Advocate for
complainant.
DATE OF HEARING: 27.08.2018

DATE OF DECISION: 28.09.2018
JUDGMENT
KHADIM HUSSAIN TUNIO, J-Through present Criminal Appeal,

appellants have impugned judgment dated 28.09.2016, passed by
learned Vth Additional Sessions Judge, Mirpur Mathelo in Sessions
Case # 780 of 2011 whereby the appellants were convicted and

sentenced, for offences punishable under section 148 & 149 PPC, to
rigorous imprisonment for three years and fine of Rs. 20,000/- each
and in case of default thereof to suffer S.I for six months more.
Appellant Muhammad Bux was further convicted and sentenced u/s
302(b) PPC and sentenced to imprisonment for life. Rest of the

appellants were further convicted u/s 302(b) PPC and awarded
rigorous imprisonment for 10 years and Rs. 100,000/- (each)
compensation to the legal heirs of the deceased, and in default

thereof to suffer simple imprisonment for six months more.
2. Brief facts of the prosecution case are that there was a dispute
between the complainant party and Raees Mitho Chachar and there
was annoyance between either of the parties. On the eventful day,
i.e. 19thJune 2011, complainant’s cousin Mehrab received a phone
https://caselaw.shc.gov.pk/caselaw/view-file/MTMxNzY5Y2Ztcy1kYzgz 1/13
call from one Jabbar who informed him that the dead body of his
cousin Ameer Bux was lying near Village Hussain Chachar and he
was asked to come and take the dead body. Thereafter complainant
party rushed to the pointed out place and upon reaching they were
surprised by the presence of accused persons named above and two
unidentified persons, duly armed with deadly weapons. After an

exchange of harsh words from the accused, accused Raees Mitho,
Abdul Wahid and Muhammad Bux fired from their respective
weapons, which hit the Mehrab and he fell down while raising cries.
Accused Waryam and Jabbar fired from their respective weapons at
P.W Ali Akbar which hit him and he fell down. Due to the cries raised
by the complainant party and the shots, co-villagers were attracted to

the site who, after giving the sake of God to the accused, convinced
them to leave. Mehrab, the complainant’s cousin was found to have
expired whereas P.W Ali Akbar was transported to Rahimyar Khan

for treatment. The dead body of deceased Mehrab was referred to
Taluka Hospital Ubauro for post mortem. After completion of
formalities, complainant lodged the F.I.R.
3. After usual investigation, charge was framed against the
appellant to which he pleaded not guilty and claimed his trial.
4. In order to prove its case, prosecution examined in all 11

witnesses, as follows:-
1. SHO Ali Hassan – He produced copy of mashirnama of

visit of place of wardat and recovery of empty shells and
blood stains, copy of mashirnama of arrest of accused Abdul
Majeed, copy of mashirnama of recovery of 12 bore SBBL
Gun and formal arrest of accused Abdul Majeed, copy of
chemical examiner’s report, copy of report of Forensic
Science Laboratory. He was examined again and he
produced original chemical examiner report & original ballistic
expert report.
2. Dr. Shafqat Ali – He produced post mortem report of
deceased Mehrab.
3. Muhammad Younis – He produced report regarding

death of accused Raees Mitho, affidavit of LPC, report of
SHO PS Ubauro, statements of neighbors, copy of death
certificate of deceased Mehrab.
4. Dalial Khan – He produced copy of FIR.
5. Nizamuddin
6. Meer Hassan
7. Abdul Karim – He produced copy of sketch of place of
incident.
8. Nazeer Ahmed – He produced mashirnama of
inspection of dead body & mashirnama of recovery of
clothes.
9. ASI Muhammad Iqbal – He produced danishnama,
referral letter.
10. PC Munir Ahmed
11. Karim Bux – He produced receipt of handing over dead
body.
Learned ADPP filed a statement, giving up witness Lakhmir
Chachar. Thereafter prosecution side was closed.
5. Statements of accused u/s 342 Cr.P.C were recorded wherein
they denied the allegations levelled against them by the prosecution
and pleaded innocence, claiming being falsely implicated due to
enmity. However, they did not choose to be examined on oath or
produce any evidence in their defence. Accused Abdul Majeed
produced true copy of judgment dated 31.07.2013 in which he was

acquitted in a case of 13(d) Arms Ordinance by the Civil Judge & J.M
Daharki & true copy of Challan/FIR No. 314 of 2011.
6. Learned counsel for the appellants has argued that the
prosecution failed to produce so-called injured P.W Ali Akbar, who
allegedly received injuries at the hands of the appellants; that the
prosecution also gave up P.W Lakhmir Chachar who is an eye-
witness of the whole incident; that the story of complainant does not
find corroboration by the medical evidence; that per prosecution
story, deceased had received three injuries whereas per medical

evidence, the deceased had allegedly received four G.S.Ws, through
and through, and one injury from a hard blunt substance; that the
appellants No. 1 to 8 did not cause injury to the deceased or to the
complainant party, they did not commit any offence whatsoever

alleged by the complainant party due to previous enmity; that during
investigation, no crime weapons were recovered from the
possession of any of the appellants except from Abdul Majeed who
did not cause any injury to the deceased or prosecution witnesses;
that P.W Mir Hassan is a managed witness since, not once, has the
complainant, be it in FIR or in his statement u/s 161 Cr.P.C, deposed
regarding P.W Mir Hassan’s presence; that there are numerous

contradictions in the depositions of witnesses, hence he prays for the
acquittal of the appellants. In support of his contentions, he has
placed case law reported as 2010 SCMR 584, 2010 SCMR 424,
1980 SCMR 231, PLD 1967 SC 443, PLD 2004 Karachi 8, 2006
P.Cr.L.J 639, 2004 P.Cr.L.J 92, 2002 P.Cr.L.J 1240, 2001 P.Cr.L.J
845, 2000 P.Cr.L.J 1360, 2008 YLR 829, 2008 YLR 2082, 2005 YLR
1629, 2000 YLR 294 & 2001 MLD 619.
7. Learned counsel for complainant and learned A.P.G, in one
voice, while supporting the impugned judgment have contended that
the appellants have been specifically nominated in the FIR; that an
innocent man lost his life because of the actions of the appellants
therefore the present appeal is liable to be dismissed.
8. I have heard the respective counsel for either parties along

with learned A.P.G and have perused the record available before me.
9. From the perusal of judgment of trial court, the judgment
mainly rested on (highlighted by the trial court in the impugned
judgment) ocular account, medical evidence, motive and
circumstantial evidence along with recovery. For safe administration

of justice, all these points had to be in such a manner that not a
shadow of doubt would strike the thought among a prudent mind
regarding the innocence of accused else it would never be safe to
record conviction in existence of such doubts. Having said that, I
would attained to each of the points individually.
10. Before indulging, deeply, into discussing the merits of the

case, I would like to state that from the face of record itself and after
perusal of depositions of prosecution witnesses, there appears to be
many contradictions between the ocular and medical account. I
would add that though medical evidence alone never identifies /
connects the accused but was / is helpful so as to test veracity of
eye-witnesses regarding their claim of witnessing incident which
they state in a particular manner. Reference may well be made to the

case of Ghulam Qadir v. State 2008 SCMR 1221 wherein it is
observed as:-
“So far as medical evidence is concerned, it is settled law

that the medical evidence may confirm the ocular
evidence with regards receipt of injuries, nature of the
injuries, kind of weapons, used in the occurrence but it
would not connect the accused with the commission of
the offence.
In another case of Ghulam Mustufa v. State 2009 SCMR 916 it is
observed as:-
“10. In so far as corroboratory pieces of evidence are

concerned the medical account displays that the
deceased and injured had received wounds from a fire-
arm but there is no opinion as to what type of weapon
was used in the occurrence. However, it is settled law
that the medical evidence can only establish the type of
weapon used, the seat of injury and the time elapsed
between receipt of injury and the medical examination. It
can never be a primary source of evidence for the crime
itself but is only corroborative of the same.
In instant case the medical evidence never confirms the ocular

account rather brings the claimed presence of eye-witnesses under
serious doubts.
11. Coming to the contradictions in the evidence of P.Ws and

those contradicting the medical evidence, it was stated in the FIR
that the deceased Mehrab had received a total of 3 G.S.Ws on his

body; two on the back and one on the right arm however per medical
report, another G.S.W was found on the body of deceased, on the
left chest, also through and through. Medical report also showed an
injury on the skull which was caused by a hard blunt object, which
too was not mentioned by the complainant. Such a contradiction

raises serious doubt about claimed presence of the complainant at
relevant time else he would have not escaped speaking about fourth
G.S.W as well injury, caused by blunt object. Further, per the medical
examiner, the shots might have been fired from a distance of 10 to
15 feet, contradicting the same, P.W Nizamuddin states that the

accused fired at the deceased at a distance of 2 feet. On the same
point, P.W Mir Hassan deposed that the shots were taken at the
deceased from a distance of 3 to 4 feet however he further deposed
in his cross-examination that the accused fired at the deceased at

point-blank range. The claimed eye-witnesses specifically claimed
fire-shot injuries from a short-distance but per medical evidence
there had not been any signs, so necessarily appear if fire is caused
from such distance. The position, being so, also makes claim of
these witnesses as ‘eye-witnesses’. While deposing regarding the

weapons used by the appellants, the complainant in the FIR stated
that Raees was armed with a Repeater, Shahnawaz without any

weapon, Abdul Wahid with rifle, Saifal with gun, Abdul Khalique with
pistol, Jabbar with gun, Anwar with rifle, Rasool Bux with gun, Khair
Muhammad with Repeater and two unidentified accused with

weapons. Firstly, the complainant has not disclosed the exact type of
weapons used in the commission of the offence, secondly the

complainant, while deposing in evidence, merely stated that the
accused were armed with “guns”, including Shahnawaz who was
originally shown as unarmed. He further contradicted his own

statement by stating that Waryam was armed with a pistol, however
on the same point he stated that Waryam was armed with a repeater
gun. When disclosing the time at which the incident had taken place,
each of the witnesses had their own opinions, which also

contradicted with that in the FIR. The time of incident was originally
shown to be 1530 hours which is 3:30pm local time, whereas
complainant, in his cross examination, stated that deceased Mehrab

received a phone call at 3:30pm and they proceeded to the place of
incident 10 to 15 minutes later. P.W Mir Hassan in his cross-

examination deposed that the complainant reached at the place of
incident at about 3:00pm. He also deposed that he was arrested by

the police at about 3:30pm. When questioned about the date, time
and day of incident, P.W Nizamuddin found no words. Such
contradictory statements raise serious doubt in a prudent mind and

the question rises as to what version should be believed? When
questioned about the clothes worn by the deceased at the time of

incident, complainant deposed that they were white in colour
whereas trial court observed the same to be a Khaki (Boski) shirt and
loin cloth, green in colour. P.W Nizamuddin, on the same point
deposed that deceased was wearing brown shirt and loin cloth was
black. The case property present in court had a loin cloth, multi-
coloured and checkered and a Khaki shirt. All these glaring
contradictions in statement (s) of claimed eye-witnesses were always

sufficient to doubt their claim of having seen the manner of incident
hence it was never safe to have relied upon such ocular account for
awarding conviction in a case of capital punishment. Reference
may well be made to the case of Muhammad Akram v. State 2012
SCMR 440 wherein it is observed as:-
“Except for the oral statements of eye witnesses there is

nothing on record which could establish the presence of
both the eye witnesses at the spot and as their presence of
both the eye witnesses at the spot and as their presence at
the spot appears to be doubtful; no reliance could be placed
on their testimonies to convict the appellant on a capital
charge. ….”
Further, it is also a matter of record that prosecution did not examine
the injured witness though injury on his person could have been
taken as a circumstance to believe his presence at relevant time.
The failure to examine such a material witness also goes against the
prosecution as well opens a room to draw a presumption within

meaning of Article 129(g) of Qanun-e-Shahadat Order, 1984 that had
he been examined he would not have supported the prosecution

case.
12. Though in a case of claimed ocular (direct) evidence, the
failure of ocular (direct) evidence is always sufficient for acquittal.

Reference may well be made to the case of Dr. Israr-ul-Haq v.
Muhammad Fayyaz & another 2007 SCMR 1427. However, as an
abandon caution I would discuss other pieces of evidences , so

brought on record by prosecution or least discussed by learned trial
court judge, for reaching to conclusion of conviction.
13. The trial court, while deciding the case, considered the motive
behind the case and gave it undue significance. I would like to hold
that the existence of motive / enmity is neither a substantive nor a

direct evidence. It is not a corroborative piece of evidence either. The
motive/enmity is only a circumstance which may lead to the

commission of an offence. It is a starting point for committing a
crime; enmity is a double‑edged weapon. Offence may be

perpetrated because of the existence of motive/enmity and it can
also be a basis to a false charge. Reference may be made to the
case of Ghulam Mustufa supra wherein it is observed as:-
“….Admittedly , there was enmity between the parties

because one of the deceased Javed Iqbal was
nominated along with other P.Ws in the murder of Ahmed

Nawaz, who was a relation of the assailant party. If
enmity persuades a person to commit a crime then it
is also sufficient to falsely implicate some person
from the other side i.e the accused.
In this view of the matter it can hardly be said that motive/enmity has
any value except that of a circumstance. Thus, it can safely be

concluded that it alone can never be taken as ‘sufficient proof to
hold one guiltyso long as direct evidence is not forthcoming.
14. Since there is no direct evidence left to consider, the

prosecution case hinges upon circumstantial evidence. It seems to
me an inescapable consequence that in a criminal case the

circumstances from which the inference should be drawn must be
established beyond reasonable doubt. Circumstantial evidence can,

and often does, clearly prove the commission of a criminal offence,
but two conditions must be met. First, the primary facts from which
the inference of guilt is to be drawn must be proved beyond

reasonable doubt. No greater cogency can be attributed to an
inference based upon particular facts than the cogency that can be
attributed to each of those facts. Secondly, the inference of guilt must
be the only inference which is reasonably open on all the primary

facts.
15. Circumstantial evidence was explained by Sir Charles Edward

Pollock while addressing to the jury in the case of Regina v. Exall &
others (176 ER 850) 1866 as:
“It has been said that circumstantial evidence is to be

considered as a chain, and each piece of evidence as
a link in the chain, but that is not so, for then, if any
one link broke, the chain would fall. It is more like the
case of a rope composed of several cords. One strand
of the cord might be insufficient to sustain the weight,
but three stranded together may be quite of sufficient
strength.”
Where one circumstance is insufficient, multiple circumstances are

sufficient to hold one guilty. Howsoever, the same should be linked to
one another, because if one strand of the rope faces the North and
the other the South, the strands would not be able to sustain the
weight. Same goes for the link and chain rule as if, even, a single link
is found to be weak, the whole chain collapses. In the case of Nasir

Javaid & another v. State 2016 SCMR 1144 it is observed as:-
7. …..Deduction about the guilt of the

accused could well be drawn from the
circumstances as are well authenticated. But
where the circumstances so reported are tinkered
and tampered with, or contrived and conjured up,
there cannot be accepted without careful and
critical analysis. Circumstantial evidence can form
basis of conviction if it is incompatible with the
innocence of the accused and incapable of
explanation upon any other reasonable
hypothesis than that of this guilt. The case thus
has to be analyzed and adjudged in this
perspective.
The series of events in the present case should have been in such a
way that it could easily be judged that event A led to the occurrence
of event B and so on. However, this was not the case as material
facts of the case either stood contradicted by the medical evidence
or the same did not find any corroboration of any sort.
16. It cannot be stressed enough, the use of the phrase “beyond

reasonable doubt” when proving the case on the basis of
circumstantial evidence. When determining this question, the
following aspects often rise:
• The identification of each individual fact which along

with all other individual facts is said to constitute proof of
the offence beyond reasonable doubt.
• The identification of each intermediate fact which may
be an indispensable link in the chain of reasoning.
• The identification of each individual fact which, along
with others, is said to constitute an essential
intermediate fact.
• The identification of facts which require proof
beyond reasonable doubt before an inference of guilt
can be drawn from them.
Having said that, in the present case, the circumstances that took
place do not appear to be a series of events, but rather a concocted
story from a devious mind. Many important facts, i.e. the time at
which the incident took place, the alleged crime weapons used or the
G.S.Ws received on the body of the deceased, were either
contradicted by the depositions of the P.Ws or found no corroboration
with the medical evidence. Here I would like to state that in many, if
not most, cases it has kept in mind that guilt should not only be a
rational inference but the only rational inference that can be drawn
from the circumstances. Clarifying the statement, the
facts/circumstances should be so clear that the only logical

circumstance coming to a prudent mind is the appellant being guilty.
17. As for the recovery of the 12 Gauge SBBL Gun from the
possession of appellant Abdul Majeed is concerned, it is an admitted
fact that the appellant Abdul Majeed was acquitted in a case of 13(d)
Arms Ordinance, for which he has also produced the true copy. Not
only this, the recovery of weapon from a single appellant does not tie
all the appellants/accused to the commission of offence even if I was
to ignore the acquittal of appellant Abdul Majeed in the 13(d) Arms

Ordinance case. Moreover, the weapon was sent to the ballistic
expert with a delay of 13 days and an explanation for the same has
remained off the record.
18. I would like to add here that the so-calledeye-witnesses are all
close relatives of the complainant, the alleged motive behind the

case has been mentioned as enmity. Enmity is
a double edged sword which cuts both ways, it can be a ground for
false implication. What is the most concerning aspect about

recording statements of witnesses is that allegedly there were well
over a 100 villagers that had gathered on the crime scene, no matter
how contradictory the number be, even if hardly 2 witnesses showed
up, I am surprised as to why police failed to record the statements of
those witnesses. The absence of independent witnesses, even when
there were allegedly numerous present, raises serious doubt in the

case of the prosecution.
19. The defence has established number of serious doubts, which
have damaged the entire prosecution case and the Hon’ble Apex
Court in case titled as Ghulam Qadir v. State 2008 SCMR 1221 has
observed that for the purpose of benefit of doubt to an accused,

more than one infirmity is not required. Single infirmity creates
reasonable doubt in the mind of reasonable and prudent person
regarding the truth of charge, makes the whole case doubtful. It is a

recognized principle of appreciation of evidence that the benefit of all
favourable instances in the prosecution evidence must go to the
accused, regardless of the fact whether he has taken any such plea
or not. Further reference in this respect laid on Tariq Pervaz v. The

State 1995 SCMR 1345. The same principle has been reiterated by
Hon’ble Supreme Court in the case of Muhammad Akram 2009
SCMR 230. It is an undoubted principle of criminal administration of

justice that an accused, during trial, is the likes of a most favourite
child of law. Such a statement emphasises on the fact that benefit of
doubt, in each and every aspect, is to be given to the accused,
regardless of the fact that he has taken any such plea or not.
Reference in this regard can be made to Faryad Ali’s case 2009
SCMR 1086. After all, it is a golden principle of law that ❝It is better
to risk saving a guilty man than to condemn an innocent one❞. Such

statement plays a pivotal role in the Islamic Law and is enforced
strictly in view of the saying of the Holy Prophet (P.B.U.H) that the
“mistake of Qazi (Judge) in releasing a criminal is better than his
mistake in punishing an innocent”.
20. In consequence to what has been discussed above, I am of
the clear view that prosecution never established the charge against
the appellants beyond reasonable doubts hence it was never safe to

record conviction on such evidences . Accordingly, the impugned
judgment of conviction is hereby set-aside and appellants are hereby
acquitted……

In The High Court of Sindh, Bench at Sukkur

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5/22/24, 6:42 PM IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

APPELLANT(S): Abdul Majeed & others.

RESPONDENT(S): The State through Mr. Afzal Hussain Talpur,

DATE OF HEARING: 27.08.2018

KHADIM HUSSAIN TUNIO, J-Through present Criminal Appeal,

learned Vth Additional Sessions Judge, Mirpur Mathelo in Sessions

Case # 780 of 2011 whereby the appellants were convicted and

302(b) PPC and sentenced to imprisonment for life. Rest of the

compensation to the legal heirs of the deceased, and in default

i.e. 19thJune 2011, complainant’s cousin Mehrab received a phone

unidentified persons, duly armed with deadly weapons. After an

Abdul Wahid and Muhammad Bux fired from their respective

by the complainant party and the shots, co-villagers were attracted to

them to leave. Mehrab, the complainant’s cousin was found to have

expired whereas P.W Ali Akbar was transported to Rahimyar Khan

Taluka Hospital Ubauro for post mortem. After completion of

formalities, complainant lodged the F.I.R.

3. After usual investigation, charge was framed against the

appellant to which he pleaded not guilty and claimed his trial.

4. In order to prove its case, prosecution examined in all 11

1. SHO Ali Hassan – He produced copy of mashirnama of

3. Muhammad Younis – He produced report regarding

5. Statements of accused u/s 342 Cr.P.C were recorded wherein

they denied the allegations levelled against them by the prosecution

and pleaded innocence, claiming being falsely implicated due to

enmity. However, they did not choose to be examined on oath or

produce any evidence in their defence. Accused Abdul Majeed

produced true copy of judgment dated 31.07.2013 in which he was

Daharki & true copy of Challan/FIR No. 314 of 2011.

6. Learned counsel for the appellants has argued that the

prosecution failed to produce so-called injured P.W Ali Akbar, who

allegedly received injuries at the hands of the appellants; that the

prosecution also gave up P.W Lakhmir Chachar who is an eye-

find corroboration by the medical evidence; that per prosecution

story, deceased had received three injuries whereas per medical

appellants No. 1 to 8 did not cause injury to the deceased or to the

complainant party, they did not commit any offence whatsoever

investigation, no crime weapons were recovered from the

possession of any of the appellants except from Abdul Majeed who

did not cause any injury to the deceased or prosecution witnesses;

complainant, be it in FIR or in his statement u/s 161 Cr.P.C, deposed

regarding P.W Mir Hassan’s presence; that there are numerous

acquittal of the appellants. In support of his contentions, he has

1629, 2000 YLR 294 & 2001 MLD 619.

7. Learned counsel for complainant and learned A.P.G, in one

voice, while supporting the impugned judgment have contended that

the appellants have been specifically nominated in the FIR; that an

therefore the present appeal is liable to be dismissed.

8. I have heard the respective counsel for either parties along

9. From the perusal of judgment of trial court, the judgment

mainly rested on (highlighted by the trial court in the impugned

judgment) ocular account, medical evidence, motive and

circumstantial evidence along with recovery. For safe administration

shadow of doubt would strike the thought among a prudent mind

regarding the innocence of accused else it would never be safe to

record conviction in existence of such doubts. Having said that, I

would attained to each of the points individually.

10. Before indulging, deeply, into discussing the merits of the

perusal of depositions of prosecution witnesses, there appears to be

many contradictions between the ocular and medical account. I

would add that though medical evidence alone never identifies /

connects the accused but was / is helpful so as to test veracity of