HABIB AHMED S/O MUHAMMAD RAMZAN (Appellant) VS THE STATE (Respondent)

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INTH EH-TGd 'COunry OF)S KAR1ACHI

Criminal Jail Appeal No.319 of 2016 Confirmation Case No.07 of 20'1,6

Prese+t:

Mr. Iustiqe Naimatullah Phulqoto + Mr.Justic-e Mohammad Karim Khan Agha

Appellant: Habib Ahmed S/ o. Muhammad Ramzan, presently confined in Central Prison, Karachi through Mr. Abdul Razzaq, Advocate.

Respondent: The State through Muhammad Iqbal Awan, Deputy Prosecutor General Sindh.

Date of hearing: 10.04.2019 and 12.04.2019.

Date of Judgment: 30.04.2019.

IU DGMENT

MOHAMMAD KARIM KHAN-AGHA, I.- Appeilant Habib Ahmed was tried by learned IInd Additional Sessions Judge, Karachi Central in sessions Case No.354l ?0l1 arising out of Crime No.279 /2011 u / s.

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36s/302/201 ppc, p.s. sir syed vide judgment dated 30.08.20'1.6, the appellant was sentenced to death subject to confirmation by this court with fine of Rs.1,00,00a/- (Rupees one Lac only) to be paid to the legal heirs of deceased as compensation lJ I ".544-4 Cr.P.C. The appellant was also convicted anci sentence d U /s. 201 PPC to suffer R.I. for 5 (five) years and to pay fine of Rs.50,000/- (Rupees fifty thousand only) and in case of default in payment of fine he was ordered to suffer R.I. for 06 (six) months more (the impugned judgment).

Z. The brief facts of the prosecution case are that the complainant Mst. Hameeda Mai lodged FIR at P.S. Sir Syed stating therein that her husband Ajmal (the deceased) was working as a mason and on 14.05.2011 he along with Habib Ahmed (the accused/ appellant) went from the house at 9.00 p.m. at night for purchasing medicine for Habib Ahmed. Habib Ahmed returned. back whilst her husband Ajmal did not return home. After some time she enquired from Habib Ahmed where her husband was who inJormed her that her husband Ajmal had left him and ran away. The complainant went to P.S. and lodged report about her missing husband

a t2l z6\ his whereabouts but wh*st she continued to search and inquire about her relatives due to without any success. Later the complainant and due to some unknown talking to Habib Ahmed became suspicious that reason he had kidnapped or arranged the kidnapping of her husband and as such lodged an FIR Ajmat and hidden him at some unknown place Ajmal and hiding him I againsr Habib Ahmed for kidnapping her husband the FIR the police arrested at some unknown prace. After registration of he had murdered Ajmal Habib Ahmed who confessed to the police that and took them to the grave yard where he had buried Ajmal after killing exhumed and identified him with churri blows. The bod y of Ajmat was he had thrown the murder and later Habib also took the police to where weapon being the churri which was recovered by the police on his confessed to the murder before a judicial pointation. Habib also magistrate.

3.Afterusualinvestigation,theCaSewaschallanedbeforethe was charged for the offenses as concerned trial court where the appellant set out in the impugned judgment to which he pleaded not guilty and

claimed trial of the case'

J 4.lnordertoproveitscasetheprosecutionexaminedgwitnessesand and thereafter closed its exhibited numerous documents and other items s'342 Cr'PC whereby he side. The accused recorded his statement under his false implication' He denied the arlegations against him and claimed any witnesses in support did not examine himself on oath and did not call on record the trial court of his defense. After appreciating the evidence the impugned judgment and convicted and sentenced the accused as Per of the death sentence. Flence, made reference to this court for confirmation by the appellant' this appeal against conviction has been filed 5.ThefactsoftheCaSeaswellasevid.enceProducedbeforethetrial dated court find an elaborate mention in the impugned iudgment 30.8.2016 passed by the trial court and, therefore' the same may not be and unnecessary repetition' reproduced here so as to avoid duplication that the FIR was I 6. Learned advocate for the appellant has contended that the FIR in law was of lodged after an unexprained deray of 17 hours; confession before the police was no evidentiary value; that the appellant',s i

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of no evidentiary value; that even the confession of the appellant before

not be safely relied the judicial magistrate was defective and as such could upon especially as the confession had been retracted at trial; that the

recovery of the dead body and churri on the pointation of the appellant

were of no tegal significance because the police already knew where the

body was buried and the churri was foisted on the appellant; that there "l{

was no identification of the body of the deceased; that the case was entirely of circumstantial evidence and such evidence did not link the appellant to the offense through an unbroken chain of evidence as required by law and thus for one and / ot all the above reasons their was of law doubt as to the guilt of the appellant and the appellant as a matter should be was entitled to the benefit of such doubt and as such his appeal allowed and he should be acquitted of the charge. In support of his

contentions he placed reliance on Mst. Askar ]an and others vs' The pervez and others vs. The state state (2010 scMR 7604), Muhammad (2007 scMR 670), Wahab Ali and others vs. The stare (2010 P.cr. L.J

1s7), Nasir Mehmood and another vs. The state (2015 scMR 423), Faiz

Ahmed & others vs. The state (2003 P.cr. L.l 1'420), ulfat Hussain vs'

The state (2018 scMR g13), Hayatullah vs. The state (2018 scMR 7092), Zaman vs' f Ghulam Abbas vs. The state (2008 YLR 71,04), Muhammad The state & others (2014 scMR 749), Rohtas Khan vs. The state (2010

scMR 566), Riaz Ahmed vs. The state (2010 scMR 846) Muhammad Shah vs. The State (2010 SCMR 1009) Altaf Hussain Vs. The State {2079 and scMR 274) Muhammad Khalil vs. Messrs Faisal M.B Corporation (2017 scMR 2026) others (2019 scMR izl) Fayyaz Ahmed vs. The state sabir AIi vs. The state (2011 SCMR 629) and Mah GuI Vs' The state

(200e scMR 4)

7.on the other hand, Mr. Muhammad Iqbal Awan, learned Deputy judgment which he Prosecutor Generat fully supported the impugned had proved contended did not require any interference as the prosecution He contended its case against the appellant beyond a reasonable doubt- that in this respect the appellant had been named in the FIR' had

confessed to his guilt before a judicial magistrate, had led the police to which he had used I both the body of the deceased and the murder weaPon to murder the deceased; that the medicar evidence supported the had been conclusively prosecution case and that the body of the deceased

t4l z1l identified and as such the appeal be dismissed. In support of his contentions, he placed reliance on Faiz Ahmed & others Vs' The State

(2003 P.Cr. L.l 1.420), Mahmood Khan vs. The state (2002 P'Cr. L.J 1.402),

zameer alias shabeer vs. The state (2000 MLD 1561), Muhammad shahbaz vs. The state (2004 sD 11160), Maieed vs. The state + scMR 55), Muhamrnad Akram vs. The state (2006 scMR 156n, Mst' Askar Jan Vs. Muhammad Daud & 3 others (NLR 2011 Criminal 154), shiraz Tufail vs. The state (2007 scMR 518), Dr. ]avaid Akhtar vs. The state (pLD 2007 sc 249) and shaikh Muhammad Amiad vs. The state (PLD 2003 sc 704),

B. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant, the impugned judgment with their able assistance and have considered the relevant law'

g. The first point to note is that there is no eye witness to the murder of the deceased and the case against the appellant is in essence mainly built on (a) his conJessional statement before the judicial magistrate, (b) of the his pointation of the place of burial of the deceased and the recovery

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murder weapon on his pointation (c) the correct identification of the body and (d) other circumstantial evidence'

10.Let us consider each of these issues in turn.

Law on retraction of judicial confessions'

11.After a review of the relevant law on the legal validity of iudicial

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conJessions the Hon'ble Supreme court in the case of Ch.Muhammad yaqoob v The state (lggzscMR 1gB3) reached the following conclusion:

"The legal position, ruhich has emerged fro* the aboae reports]seems to be that in order to iudge the euidentiary aalue of retracted confession, the Court is to adaert to the question, uthether the same aqPears to haue been mad'e aoluntarily, without any inducement, duress or coercion with ilre obiect to state the truth, lf the court is satisfied on the aboue aspect, the mere fact that there u)ere some iruegularities in recording of a I confession, would not waruant disregarding of the silme".(bold added)

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12.It is settled law that a retracted judicial confession can be legally circumstances. In the admissible and used against its maker in certain pLD sc 219) it was rater case of Muhammad Amin v. The state (2006 held atP.224 Para 9 as under:-

"9. There i.s no caail t:o the proposition that conaiction could .4 haue been awatded on the basis of retracted confession which proposition tnns examined in case of Mst. loygun Bibi a. The Sta'te PLD 1'960 (SC @ak) 31"3 as under:- 'we are unable to support the proposition of law laid dou'n by of a confession the learned ludges in'this regard. The retraction is a circum-.staice ruhich has no bearing uthatsoetter upon the

question rphether in the first instance it. was aoluntarily made' that and on the furth* qurriion tuhether it is true. The fact the maker of the confession later does not adhere to it cannot by itself h** ony iSrrt upon the findings reached as to ruhether the confersiri ruis aoluntary, and if so, ruhether it tuas true, for of the to zuithdrato from a self-acc|sing ttotr*rnt in direct face consequerrgi of the'accusation, is explicable fully by the qlo conftection proximity of those consequen.ces and need haae ruhatsoeier'with either its aoluntary nature, or the truth of the

facts stated. The learned ludges wer! perfectly ritht in first "deciding being the these truo questions, and the ansttters lf ruas -ffir*oiirr, in declaring tha! thr- confession by it.self taken tuith the other facts and circumst{rnces to iiytrrirnt,'Abdut support Maiid's conaiction, The rettaction of the confession was whotty immaterial once it was found that it utas aoluntary as well fls true'" r alias Gul Hassan

10.simitarly in the case of the state u, Minhun PLD 1964 SC St 3 this court has obsensed as under:- "As for the confessions the High Courtr it. appears'| Tttfls duly ,rnurious of tlrc fact that retraited confession whetlur iudicial or extra iuaiafi, could legally be tal<en.i.nto consideration oryd if..the against the maper of thoie cinfessions himself, cinfessions rrt€f€ found to .be -true and aoluntary, tlrcn tlure u)(# no need at ali to look for further corroboration. It is well- settled that as against"thi maker himself his confession, juiticiat or ,*fio iudicial, - whether tetracted or not retracted, can in laza aalidty for* the so-le basis of his c;onaictiin, if the Court is s-atisfied and belieues that it by torture a)&s true anil aoluntary and was not obtained or coercion ot inducement'" (bold added)

whether

13.Thus, the court laid down a two pronged test as under (a) been made voluntarily, the retracted judicial confession appears to have was made with the without any inducement, duress or coercion and (b) { object to state the truth.

,1,4. Notably it was also held that if both (a) and (b) were satisfied that of a confession it would even if there were some irregularities in recording

t6l e.l 3 not warrant disregarding of the same. In our view however following the case of Azeem Khan v Muhahid Khan (201,6 SCMR 274) such irregularities must be of a very minor nature and must not have detracted from either the voluntariness or truthfulness of the confession.

* 15. In the case of Bahadur V State (PLD 1996 SC 336) although it was suggested that a judicial conJession alone can be made the basis of conviction the safer course was to look to see if there was any corroborative material available to determine its truthJulness.

16.In the case of Manjeet Singh V State (PLD ?006 SC 30) a further requirement seemed to be added that in determining the truthfulness of the confession it had to be placed within the context of the whole of the prosecution evidenc e f case.

17.In our view therefore we are not in any doubt that a retracted confession before a magistrate can be the basis of convicting in a capital case however it must be;

(a)voluntary i.e. ruithout threat or inducement and (b) Its object must be to state the truth; assistance for ruhich can be asceriained from (n tuhether the confession nqPears truthful I raithin the context of the prosecution case and (it u,hether there is Eny otlrcr eaidence on record rtthich tends to corroborate the truthfulness of the confession and

(c)onty rery minor irregularities regarding the rules concerning the recoiAing of iuiicial confessions cnn be permitted as determined on n cfise to cnse basis the main criteria being that such irregularities haae not adaersely effected the aoluntariness or truthfulness of the confession'

1g. In this case the appellant has retracted his judicial confession so the has it question arises whether it can be safely relied uPon. Namely (a) are any been made voluntarily and (b) is it truthful and (c) whether there material irregularities in its recording'

19.In this case the accused has retracted his confession and has stated in his s.g4lcr.pc statement that in effect the conjession was not recorded in his presence and that the police obtained his thumb impression on 1. plain paper. During the appellant's cross examination of PW I Fida Hussain who was the civil juclge and judicial magistrate who recorded his confession he has Put questions to suggest that his thumb h

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impression was placed on the conJession before it was made and also that the accused was subject to mal treatment before his confessional statement -r

was recorded. The relevant extract of his cross examination reads as under:

haue gone through the proaisions of section 364 sub- L section {, 2, 3 Cr.P,C. It is correct that the performa of confessionsl statement has oaerutriting in the number of court. lt is coruect that the confessional statement contains English language. Befote recording statement of accused I enquired fro* him about his language on which he replied that he knows urdu language. lt is correct that I haue not recorded the statement ,f accused in his own ,language aiz. llrdu. The accused informed that he was arrested on L7.5.201L. It is correct tiat during interuening period of his aruest and statement he u)as produced before me by the police for obtaining his remand. Durtng his nPpenrance fo, reriand ihe accused had not shown his willingness to confess his guilt. I had not checked the body of the aciused personatly as he was not complaining about maltreatment at the hands of police, lt is incorrect to suggest that the accused lt)frs maltreated before reiirding his confessional statement. It is correct that there ori L.T.ls of accused on each paper but on first two papers his name is not mentioned under L.T.I. lt is also correct that L.T.l. of aceused on last paper is obtained aboae his confessional statement. lt is I incorrect to suggest that I had not recorded confessional statiment ,f accused propeily and_ recorded his statement as Pet statement of the accused before p olice" .(bold added)

20.In this respect it is relevant that the appellant is an illiterate man and as such cannot read or write English or urdu. This is relevant because his conJessional statement was not recorded in urdu a language which he

can understand but in English which is a language he cannot understand and there is no evidence to show that his statement as recorded in English

was read back to him in Urdu. In our view it is also relevant that the appellant was produced before the magistrate twice on remand in police custody and did not volunteer to make a conlession yet whilst still in g of police custody after two remands and days of his arrest he agrees out the blue to make a confessional statement. There is an unexplained delay .+ of g days in recording his confession after his arrest during which time he remained in police custody. He was also not warned that if he failed to make a confession he would not be taken back into police custody and he claims that he was maltreated in police custody.o

t8l ur.i

21.The content of his confession, as is reproduced as under' also

we do not find any mention of appears to be lacking in detail. For instance tyPe of weapon if any:

how he murdered the deceased and with what ,,Ajmal had started illicit relations tpith my tptfe after thieatening her, He used to threaten rne' Therefor,e on.

L ru,as,Zlllatll,pntlbroughtAjmalingraueyardand committed his murder" , to the 2:.-. Thus, for the reasons mentioned above ure have doubts as judicial confession voluntariness and truthfulness of the appellant',s strictly in accordance especially as it appears that it was not conducted to the recording of with the law with respect to the principles relating as laid down in the case of confessional statements by a judicial magistrate Azeem Khan v Mujahid Khan (2016 SCMR 274). In particurar the fact

that the appellant was illiterate as can be seen by the fact that he used a and in this case his thumb impression in order to verify d'ocuments no evidence on confession was recorded in English language and there is record that it was ever re-read back to him in the urdu language which he

und.erstood which in our view is a material irregularity in recording his

statement.

Y 2s,Forustogiveanyweighttohisjudicialconfessioninourviewit evidence from an must be strongly corroborated by independent unimpeachable source.

place of burial of the Turning to the appellant's pointation of the his pointation' deceased and the recovery of ine murder ttreaPon on to the

24.In our view this might have provided some corroboration that he was the only PeISon appellants judicial conJession as it aPPears was buried and when he took who knew where the body of the deceased the deceased was buried all the the porice to the place where the body of required by law however some entries were made at the police station as to the place of the buried body doubt arises with such taking of the porice as although the required police entries were made no statement of the to the departure of the police appellant has been exhibited whereby prior was required by law. In this {. he has stated where the body is buried as respect reliance is placed on the case of Mst Askari Jan (suPra) which at Para 10;

held as under in the following terms atP-7623 ry

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" Thus, firstttt there should be fln information or statement of ih, orrused whethet it may be confession or otherwise ind that too when he wns in police custody and secondly ott the basis of such information or statement a jact is discoaered. lf there is no statement of the accused-or information giuen to the Police, which is frn essential riquirement ,f the Article, then the subsequent discouery would become inconsequential. t Furthir such informition either oral or recorded by the 'throughis requ'ired police to be proaed by the ,P-rosecution eaidence. Similar point ultts considered by Supreme - court"of India in the cilse reported as Bhimappa u. state of 'l'477, Karnatika (A/R 1gg3 Supreme Court 1469) nnd at pnge it has been obserued as under:-

;,T,Y,'I!,*I,T'ir:,r#r!;:r,l*",'::j';x*;:,:,:#; tonrards Harugeri and stopped nefrr the stream situate at a distanrr-oY about 2 kms nTzay and the accused took out the axe frr* inside the nallah (stream). ln the absence of afiy disclosure statement ,f recoaery "f nxe itself becomes meaningless." (bold added)

25, Thus, on balance, in our view little weight can be given to the recovery of the body on the pointation of the appellant in respect of

corroborating the judicial confession of the appellant'

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?6. with regard to the recovery of the churri on his pointation we again have been made have some doubts because although the relevant entries the police to the by the police the question arises as to why he did not take churri was churri at the same time when he took them to the body as the to logic, in the bushes nearby. This conduct does not particularly appeal above in his Cofiunon Sense or reason. Interestingly, as mentioned the deceased and confession the appellant does not say how he murdered may well have been what was the murder weapon and as such this churri Mahmood) who was foisted upon him especially as one PW (PW 6 Tariq present when the churri was recovered states that it was a dagger and not between the two a churri after confirming that he knew the difference churri says that the whilst the Io (pw 9 wahid Bux) who recovered the despite knowing recovered murder weapon was not a dagger but a churri post mortem report does the difference between the two. significantly the were caused by not make any finding as to whether the incised wounds { as to the churri knife or any other weapon so in this respect corroboration in the post or a dagger causing the death of the deceased is not found chemical examiner for mortem report" The churri was arso not sent to the f

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were made analysis and once again although the required police entries no statement of the appellant has been exhibited whereby prior to the

departure of the police he has stated where the churri is hidden as was

required by law. In this respect reliance is placed on the case of Mst

Askari ]an (SuPra).

a 27, Thus, in our view very little weight can be given to the recovery of the churri on the pointation of the appellant in respect of corroborating

the judicial conJession of the appellant'

Turning to the correct identification of the body of the deceased'

28.According to PW 3 Dr.Abdul Haque who carried out the post mortem of the body after its exhumation the features were not identifiable. In this respect he states as under during his evidence;

"f lel::'"#:!.,!1,i,!'.!,!io{rY";,:",:o'#;,*}:

area due to decomposition which was enhanced in this the iniurries, The shallotrt grnae about 18 inch and hot climati and nothing could be opined about postmortem liuidity, tongue ind ENT bteeding due to the de comPosition." (bold ad ded)

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79.It also appears from the evidence of PW 3 Dr' Abdul Haque that three teeth were taken from the body of the deceased for DNA of the deceased.

examination in order to concrusively prove the identity

30.PW 1 Nazar Hussain is the complainant in the case who was at the the dead body exhumation and claims in his evidence to have recognized of the deceased. Keeping in view the fact that the features of the dead Haque and that body were not identifiable as opined by PW 3 Dr Abdul he had sent the teeth off for DNA examination we are of the view that the be safely relied upon identification of the body by the complainant cannot was exhibited of the as absolutely correct especially as no DNA report According to the teeth to prove that the body was that of the deceased' in this case by appellant in his s.342 statement he was falsely implicated concerning his daughter the complainant party over a marriage dispute

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and the nephew of the comprainant's brother in law which marriage has was also the brother been admitted by the complainant. The complainant witness who ofthe deceased and was therefore a related and interested v

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also seems to be a partisan witness and as such we find that we cannot reasons mentioned safely rely on his identification of the deceased for the come to the above. In fact as discussed later in this judgment we have conclusion that the complainant has not been truthJul in respect of at least

some aspects of his evidence and as such the entirety of his evidence is

excluded from consideration under the rule of falsus in

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uno, falsus in

omnibus which has recently been recognized to be applicable in Pakistan in folrowing the supreme court order (unreported) dated 04-03-2019 Criminal Miscellaneous Application No.200 of 201"9 in Criminal Appeal No.238-L of 2013 (Notice in pursuance of the order passed by this court

on 13.02 .z01tg in criminal Appeal No.2Bg-L of 2013 to Police constable Khizar Hayat son of Hadait ullah on account of his false statement made before the trial court in a criminal case).

31.Thus, we are of the view that the identification of the body as being prosecution' that of the deceased has not been absolutely proven by the Turning to convicting the appeflant on the basis of circumstantial evidence

32.This concerns such evidence that to inrer guilt the incriminating 'f and the only fact must be incompatible with the innocence of the accused the case of wazir explanation is the guilt of the accused as was held in Muhammad and another v. The state (2005 scMR ?77) at P-283 Para I in the following terms:- ,,ThE question of circumstantial eaidence and award ,f 'also conuiction has been examined by this court on

'#'rri,:!#:"i,,,#;*'tr##*-:iff{;

!;;:x::":;"#;:'i;:;n:1tr::,i{:;';:,r#l!"1:, the accused or the iicompati4eTpith the innocence oI

*i.;..Y,,,:"10,:,'i7r',:;:,r,r7,1x.o'i,'T;oo,'f,,!I than that of his guilt." fuold added)

Likewise in the case of Azeem Khan and another v' Mujahid Khan

and others (2076 scMR 274), at P.290 Para's 3L and 32 it was held as

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under;-

,,3L.

As discussed earlier, the entire case of the prosecution,

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is based on circumstantial euidence. The prtnciple of laan, consistently laid down by this Court is, that iliffetent pieces of such eaidence haae to make one chain, an 'unbroken one where one end of it touches the dead body and the other the neck of the accus-ed. ln case of ntty missing tink in the chain, the whole chain is briken ond no conaiction cafi be recorded in crtmes entailing capital punishment. This principle is fully ,t attractu{ b the facts and circumstnnces of tlw present case." fuold added)

"32,..,,,In ctrses of circumstantial eaidence, the Courts are to take extraordinary care and caution before relying ory th, sfrme, Circumstaniiol eaidence, eaen ,fsupported by defectiae or inadequate eaidencet cnnnot be made basis for conuiction on a capital charge. More particularly,- when there are indicationis of design in the preparation of a cnse

or introducing any piece of fabricated eaidence, the caurt -be should akoiys mindfut to take extraordinary precautionr, io that the possib.ility of -it being deliberately 'misled into false inference and patently-wrong concllt:o-" is to be rulid out,-therefore hard and fast rules should be apptied for carefully and narroruly examining clircumstantial eaidince in such ctrses because chances of fabricating such euidence are alutays there. To iustify the 'in1rrrn"i guilt an accused Petson' the "f "f ,irru*rtantial-eaidenc:e must be of a quality to be. incompatible with the innocence of the accused' lf such circumstantial euidence is not of that standard andquatity,itwouldbehightydangeroustotely '1r upon'the sime by awarding capital punishment. The better and safe ,iurtr uould be not to rely uPon it in securing the ends of iustice' " (bold added)

34.Based on our appreciation of the evidence on record we are of the an unbroken view that the different pieces of evidence have not made dead body and the other chain of evidence where one end of it touches the the other factors the neck of the accused especially when we consider discussed berow which include there being no direct evidence that the the night of the deceased's appellant was even out with the deceased on alleged murder bY the aPPellant'

Even otherwise we also consider that a number of other issues

raise doubt over the appellant's guitt keeping in view that the give evidence at trial complainant Mst. Hameeda died before she could which we set out as under;

14-5-2011 after

(a)the deceased went missing at around 9pm on who lived in the same allegedly going for a walk with the appellant house as the deceased. on 16-05-20ii tn* appellant accompanied

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z?,b a missing report at the the wife of the deceased when she lodged PS. Yet, the next day on 17-05-201L the *it" of the deceased lodged oj her husband' an FIR u..rrirrg thl appellant of the kidnapping the wife of the No explanation has come on record as to why to implicate the appellant deceased changed her mind and decided suspicious and within 24 houri which seenrs to us to be highly left the house with

(b)There is no direct evidence that the appellant FIR in this regard cannot the deceased on the night in question' The

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the appellant be treated as evidenJe. Th; evidence concerning leaving the house with the deceased on the night of the incident is Hussain and Pw 2 hearsay evidence as provided by PW 1 Nazar Muhammed Aslam who was toia the same by Ms Hameeda who is legally did not give evidence due to her death and as such inadmissible. Both Pw 1 Nazar Hussain and Pw 2 Muhammed and are partisan towards the Aslam are related to the deceased appellant due to his daughter's marriage dispute with their relative.

evidence of either of

(c)Furthermore, we can give no weight to the these PW's for the following reasons: as under in material

(i)In his evidence PW 1 Nazar Hussain states part "ofi 74.5.201.7 the accused Habib has committed murder ofNew my Qvspeyard' brother noirty Muh^ammad Aimal at Christian some medicines for Karachi Areoi on the pretex't for buying his house at accused t i*tit7 and took my diceased -brother from about g.00 p,;. on the doy' Sy:h informatio.n had giaen 'o*i f tomeby*ydeceasednttauiHameedaMaLshealso discloseilmethatlaterontheaccusedHabibcaftrctoherhouse ttthere is Aimal to uthom uthere my deceased Bhai asl<ed him that that he rffit away f'o* there you .took from the house and he reptied andldon,tknowabouthiswhereabouts.AtsuchmyBhabi HameedaMaiseensomespotlofbtoodandmudonhis clothes and asked that what happened to you iry reply he due to which the mud stated tiat r haae fallen some w'h-ere and my Bhabi- and blood is seen on his clothes. The accused of to rcside at one placelhouse. When the clothes u)ere used theaccusedHabibwereputoffbytheinmatesofthehouse then from the pocktt oi accused- Habib, the SNIC, mobile his pocket which phone atnd Rs'4500/- i"' dtopped from were belonging to my drcearii brother Aimal. when the accusedzuasasl<edaboutthebelonSinSgf.*yde.ceasedbrather Ajmal he replied thst tthe deceased"haidid oo" to me the said that my belonging.s by articles and ran at4tta and further directed stated that I don't handed ;;:;, ,o *y n',f, ohd o"used further be informed about him knotrt tuhere he had gone but you uiitt soon."

legally inadmissible but Not only is such evidence (a) hearsay and. A lodged by Mst is also (b) a great i*pror"ment fiom the FIRimprovements to Hameeda which in our view are dishonest be safely relied upon' improve the prosecution case which cannot Mansha v statT In this respect reliance is placed on Muhammed

t 14l zsl (2018 SCMR 772).Mcre significantly

(c)such evidence does not-- appeal to logic, reason, commonsense or natural conduct' In our view it is completely unl:elievable that the appellant after house with the murdering the deceased would return to a shared and would keep with him deceased wife with hlood stained clothes who he had allegedly the CNIC and mobile phone of the deceased just murdered which fell out of his pocket when changing his clothes in front of her. The murderer of the deceased in our view L woulcl have ensured that he had no trace of the deceased on him let for which he had no alone the deceased's CNIC and mobile phone Rukhsana Begum v use. In this respect reliance is placed on Mst iajiid (Z1tT SCVrn Eg6) and Rohtas Khan (Supru)' Tl: Supreme Aslam V The State Court has also held in the recent case of Rashid No'99 and 100 (unreported) dated 01-10-2018 in criminal Appeals case that it was not af. 2077 albeit in a kidnapping for ransom believable that an identmiiaiion card which would fully implicate of incident in the the accused in the crime was found at the place following terms;

" Ayt identification card of the deceased had statedly been had statedhl recoarrud iro* a house wherein the deceased but, the been k pi and murdered by the.

.appellants connection of prorrru:ion had utterly fatle! n establish nny the ,ppr:llonts tuith tie said house. It has been faund by unbelieaable that the culprits who had taken 'bte us fo eaeryotherprecautiontoconcea.ltheircrim.eshadleft the iAr"tifilntion card of lhe-dece.ased at the place.of dyring murder. ihr prosecution kad. maintained that tlte inaestigation the appellants h:! f oiyt( out uflriouipl1o.,,rllutgdmitteatynothinghadbe,en Y rccouerei 'r.ri identilicatian 7ro* those places exceyt an bye,n ,t-rnl deceaseil rnhich hry atready f:\Td by us to be a drcumstattce which a)frs hard to helieae,,, (bold added)

Based on the above discus.sion' in our view certain aspects of this thus on the basis of the rule witnesses evidence are untruthJul and in its ;i"ii;;;-in uno, falsus in omnibus his evidence is disregarded entirety 4uhammed Aslam state*. ut under in material Part:

of "About four and half years back my aunt!.Hameeda,.the,yife She disclosed i;r;;r; cam.e:ta my house at.Gutshnn-e-itlayrnnr" husbhnd namely Aimal to me that Habib ihmed toak atttn. her but till this time *ni ,r*tt *y: *ot ynsl uncle for taking,medlgine dis-closed^ to me that he had not come back. My aunty itto 'i;.;;;; mobile iod ,o*e back and he hid original CNrC and phoneofmydleceaseduncle.Isentherbacktaherhouseand come to your house and told her that in the morning time I tpould I wouldenquireaboutthematter,lalongtl,ithmymotlrcr'reachedat thehousgo.fmyfiuntyHameeda.l-enquired.f,o*theaccused ;;.;:;;;;;'"''hr;' ;,;;kv maternat uncte? on this he returned'*O

[ ls ]

ru { t

CNICandmobilephoneofmyuncletomesayingthatmyuncle Aimat had run nrunY'"

Again, not only is such evidence (u) hearsay and legally from the FIR inadmissible but also (b) a massive improvement lodged by Mst Hameeda which in our view are dishonest improvements to improve the Prosecution case which cannot be on Muhammed safely relied upon. Irrthis ,"up*.l reliance is placed I significantly (.)

Mansha v siate (201S SCrrin 772).Again more Commonsense or such evidence does not appeal to logic, reason/ natural conduct. In our ,ri* as disclssed above it is completely unbelievable that the appellant after murdering the deceased wife and would would return to a shared horrse with the deceased keep with him the CNIC and mobile phone of the deceased who he pocket when had allegedly just murdered' which fell out of his of the deceased changinghis"ciothes in front of her. The murderer had no trace of the in our view would have ensured that he deceased on him let alone the deceased's CNIC and mobile phone forwhichhehadnouse.AgainsignificantlysuchCNICand exhibited mobile phone of the deceased was never recovered or despite them allegedly being in the possession of this witness case' which again ,"u*r[Iy ients his evidence and the Prosecution Begum v Sajiid In this respect reliance is placed on Mst Rukhsana aspects of this (2017 scMR 596). Again, in oyr view certain on the basis of the rule witnesses evidence are untruthful and thus is also disregarded in of falsus in uno, falsus in omnibr.rs his evidence its entiretY.

be treated as with regard to the contents of the FIR itself this cannot a piece of substantive evidence unless its maker affirmed its content { which has not under oath and was subject to cross examination of the FIR regarding been done in this case uni u, such the contents the incident are of no evidentiary value' In this respect reliance.is (Supra) and Dr']avaid placed on the cases of Muhammad Zarrran Akhtar (SuPra)

Thus the upshot of the above discussion is that there is no evidenceonrecordtoshowthattheappellantleftthehousewith murdered him as the deceased on the night that he illegedlyeven circumstantial there is no legally admissible evidence or any is no evidence that evidence on record to this effect and there at the time when he one even saw the appellant or the deceased the murder of the was allegedly out ,iau his home committing deceasedwhichinourviewcreatesahugedentinthe Prosecution case as potentially Ty :lf^t i:,T"" could have murdered the d*cuur*d. This again creates maior doubts in the Prosecution case

(d)TheProsecutionhasnotbeenabletoprovethattheappellant had any inotive for killing the deceased' has to /t 36. It is a cardinal principle of criminar law that the prosecution and that any doubt must go to prove its case beyond a reasonable doubt emphas ized, by the supreme the benefit of the accused as was recently

,t + l 16l zg3 court in the case of Ahdul ]abbar v state (2019 scMR 129). Based on the

above discussion, we have considerable doubts as to the guilt of the of that doubt to the appellant and accordingly whilst extending the benefit appellant the appeal is allowed, the appellant is acquitted from the charge' and the appellant the confirmation reference is answered in the negative t shall be released unless he is wanted in any other custody case' 3/. The appeal is disposed of in the above terms with the confirmation reference being answered in the negative'

3o .n -=+1

JUDGE

f Arif

/r.