Syed Ali Hussain VS The State

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

Crl. Appeal No.34/2024 Syed Ali Hussain Shah Versus The State & another

Crl. Appeal No.50/2024 Muhammad Asif Versus The State & another

Crl. Revision No.61/2024 Muhammad Asif Versus The State & another

Appellants by : Mr. Sarfraz Ahmed Qureshi Advocate for appellant in Crl. Appeal No. 34/2024.

Mr. Farhan Nazir Kiyani Advocate, for appellant in Crl. Appeal No. 50/2024 and petitioner in Crl. Revision No. 61/2024.

Respondents by : Mr. Farhan Nazir Kiyani Advocate, for Respondent No.2 in Crl. Appeal No. 34/2024.

Mr. Sarfraz Ahmed Qureshi Advocate, for Respondent No. 2, in Crl. Appeal No. 50/2024 and Crl. Revision No. 61/2024.

State by : Mr. Nisaar Shah, Special Public Prosecutor. Mr. Muhammad Zafar, SI/IO, with record.

SHAHRUKH ARJUMAND, J.- Through Crl. Appeal No.34/2024 filed by Syed Ali Hussain Shah in terms section 410 of the Code of Criminal Procedure, 1898 (“Cr.P.C.”), the appellant has impugned judgment dated 28.11.2023 passed by the learned Additional Sessions Judge, Islamabad (East), whereby he has been convicted and sentenced to life imprisonment and to pay an amount of Rs.500,000/- to legal heirs of the deceased in under section 544-A Cr.P.C. in FIR

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No.441/20 dated 14.12.2020, registered under sections 302, 201, 34 of the Pakistan Penal Code, 1860 (“PPC”) at Police Station Lohi Bher, Islamabad.

2.Through Crl. Appeal No.50/2024 filed in terms of section 417(2-A) Cr.P.C., Muhammad Asif impugns the acquittal of co-accused Saif Ullah, whereas, through Crl. Revision filed in terms of section 435 read with section 439 Cr.P.C., he seeks enhancement of the sentence awarded to accused-Syed Ali Hussain Shah.

3.The FIR (Exh.PB) was registered on the written complaint (Exh.PF) of Muhammad Asif (PW-6), wherein it was alleged that on Friday, 11.12.2020, at about 6:00–7:00 p.m., he was present at the house of his paternal cousin, Adil Mehmood (deceased), when the deceased received a telephone call. After speaking to the caller for a while, the deceased left the house, stating that he would return. On the following day, they learnt that Adil Mehmood had not returned home, whereupon they started searching for him at various places. On 14.12.2020, at about 11:30 a.m., while the complainant was proceeding towards the village in search of Adil Mehmood, he saw a dead body lying near a spring in an open field. The head and upper part of the body were covered with mud, whereas the legs were visible. The complainant with the assistance of co-villagers removed the mud, revealing that the dead body was that of Adil Mehmood. His clothes were blood- stained. There was a deep injury on his face near the nose and another injury on his head. The complainant alleged that his cousin had been murdered and his dead body concealed beneath the mud.

4.On receipt of information regarding the commission of the offence, Qasim Zia, SI (PW-12), reached the place of occurrence along with Naveed Ahmad, HC/7672, and Sultan Mehmood, HC (PW-2), where they found the deceased’s dead body lying in a depression. He received the complainant’s written application (Exh.PF) and sent it to the police station through Sultan Mehmood, HC (PW-2), for registration of the FIR. He prepared the inquest report (Exh.PU), drafted an application for conducting the post-mortem examination (Exh.PD), and sent the dead body to Polyclinic Hospital through Naveed Ahmad, HC. At the hospital, the complainant-Muhammad Asif nominated the appellant and co-accused, upon

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receiving information from Abdul Wahid that he had last seen the deceased in the company of Saifullah and Ali Shah on 11.12.2020.

5.The trial commenced with the framing of the charge on 17.07.2021, to which the appellant pleaded not guilty and claimed trial. The prosecution produced fourteen witnesses, along with documentary evidence, to prove its case. The gist of the prosecution evidence is as follows:

 Naveed Ahmed, HC (PW-1), is an attesting witness to the recovery memo (Exh.PA), whereby a silver-coloured USB produced by the complainant was taken into possession. During cross-examination, he admitted that the complainant had directly handed over the USB to the investigating officer in an open condition.

 Sultan Mehmood, HC (PW-2), stated that he was a member of the police party that initially reached the crime scene along with PW-Qasim Zia, SI. He also took the complaint to the police station for registration of the FIR. During cross-examination, he admitted that neither the name of Naveed, HC, nor the fact that the dead body was lying on the ground was mentioned in his statement under Section 161 Cr.P.C. He further stated that he, along with Qasim Zia, SI, reached the place of occurrence at 12:33 p.m. He alone proceeded to the police station for registration of the FIR, reached there at 02:00 p.m., and returned to the place of occurrence at about 03:15–03:30 p.m. with a copy of the FIR.

 Sajjad Mehmood, ASI (PW-3), registered the FIR on the complaint sent by Qasim Zia, SI, through Sultan Mehmood, HC.

 Javed Iqbal, C/6568 (PW-4), testified that, in his presence, Naveed Tahir, SI, collected the call detail records (CDRs) of the deceased and the accused persons from the office of SP (rural), Islamabad, and took them into possession vide recovery memo (Exh.PC), attested by him. During cross-examination, he expressed his inability to state the mobile phone numbers of the accused persons and the deceased, although he remembered that one number belonged to Zong and the other to Telenor.

 Doctor Dr. Shazia Nazir, CMO, Polyclinic Hospital (PW-5), deposed that on 14.12.2020, at about 3:05 p.m., the deceased’s dead body was brought to the hospital, where she conducted the post-mortem examination at about 03:45 p.m. She further stated that the dead body had been recovered from beneath the ground, where it had been buried. External examination revealed mud on the clothes and body, and rigor mortis was fully developed. The injuries were described as follows:

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i. A 2.5 cm laceration on the left side of the nose. ii. A 1 × 1 cm circular wound at the back of the root of the neck.

In her opinion, the deceased died due to a brainstem injury caused by a gunshot, leading to cardiopulmonary arrest. She estimated the probable time between injury and death as five to ten minutes, and between death and the post-mortem examination as twenty-four to forty-eight hours. She tendered the post-mortem report (Exh.PC) into evidence. During cross- examination, she admitted that the date mentioned alongside her signature on the post-mortem report was 13.12.2020, but volunteered that it had been entered by mistake. She further admitted that the time mentioned beneath her signature was 4:25 p.m. She also admitted that she could not comment on the presence of any drug in the deceased’s stomach, as no sample of its contents had been taken.

 Muhammad Asif (PW-6) is the complainant of the case. In his examination-in-chief, he narrated substantially the same facts as those stated in the FIR. He stated that he had his supplementary statement recorded upon receiving information from Abdul Wahid and Arshad, who told him that they had last seen the deceased on 11.12.2020 in the company of the accused, Saifullah and Ali Shah. In that statement, he alleged that both accused persons, after consultation and deliberation, had committed the murder of Adil Mehmood. The supplementary statement was recorded on 14.12.2020. On 17.12.2020, he produced a USB allegedly containing a recorded statement of one of the accused concerning the commission of the offence. During cross-examination, he stated that Arshad and Waheed did not accompany him while he was searching for the deceased. Before finding the dead body, he had not submitted any application to the local police. He disclosed that the distance between the place where the dead body was found and the deceased’s house was about 500–600 yards. He further stated that he was alone when he found the dead body and did not make any telephone call thereafter. None of the persons who gathered there was associated with the police investigation. He expressed his ignorance as to who had informed the local police.

 Shehzad Mehmood (PW-7) is an attesting witness to the recovery memo whereby blood-stained earth was taken into possession. He is also a witness to the recovery of empty of 30 bore pistol from some distance away from the place of occurrence. During cross-examination, he admitted that the deceased was his paternal uncle. He stated that he received information regarding the incident from a fellow villager, whose name he did not remember, and that he had been residing in Jinnah Garden since  Muhammad Akhtar (PW-8), identified the dead body at the hospital.

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 Abdul Waheed (PW-9) is the witness who allegedly saw the deceased in the company of the accused persons on 11.12.2020 at 07:00 p.m., sitting at Chatkhara hotel and taking tea. He stated that he met them, joined them and took tea with them. After taking tea, Adil Mehmood accompanied the accused persons towards the stream/chashma. He is also a witness to the recovery of the deceased’s mobile phone by Saifullah from a jungle area and to the recovery of a .30-bore pistol by Syed Ali Shah from bushes at in the jungle area of Jalhari. During cross-examination, he denied being related to the deceased, but admitted that he knew the deceased and the accused persons. Although he belonged to the same vicinity, he denied having met any person known to him at Chatkhara hotel that night. He further stated that on 14.12.2020, he was attending a condolence gathering for the deceased. On 19.12.2020, while attending a condolence gathering, he saw the police party and proceeded to place of occurrence. He admitted Toot stop is a stop connecting the jungle area, situated on the Islamabad Expressway, and that the police party had not asked the driver to stop the vehicle there.

 Arshad Mehmood (PW-10) deposed that on 11.12.2020, while returning from the bazaar at about 6:30 p.m., he saw Ali Shah and Saifullah in the company of the deceased near the deceased’s house. Thereafter, on 14.12.2020, the deceased’s dead body was found lying near the spring/chashma. He is a witness to the recovery of the deceased’s mobile phone by Saifullah. During cross-examination, he admitted that he was the deceased’s paternal cousin. He stated that he resided in a separate house situated at a distance of half a kilometre. His house was situated on the eastern side of the haveli, whereas the shop from which he had purchased items was situated on the western side of his residence. He further admitted that on 11.12.2020, he returned home at about 03:00 p.m. due to his daughter’s illness. He stated that he did not visit his parents in the evening on 12-13.12.2020. He also admitted that on 20.12.2020, he did not go to work.

 Naveed Tahir SI (PW-11) is the ihe investigating officer who deposed that, on receiving information regarding the commission of the offence, he, along with Naveed Ahmed, HC, and Javed Iqbal, C/6568 visited the place of occurrence. Before his arrival, the dead body had already been shifted to the hospital. He took over the investigation from Qasim Zia, SI, inspected the place of occurrence, prepared an unscaled site plan, and collected blood-stained soil along with grass, which he made into a parcel. He also collected from the crime scene one black colour hair ring, the deceased’s leather jacket bearing a bullet hole, a plastic chappal and one crime empty. After the post-mortem examination, he received the deceased’s blood-stained clothes from the CMO. He recorded the complainant’s supplementary statement at the hospital. On the following day, the draftsman, Amir Shehzad, prepared the scaled site plan in his presence on the pointing out of the complainant. On 16.12.2020, he

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arrested Syed Ali Hussain at the police station and took into possession two mobile phones belonging to him, one Samsung J3 and one keypad phone. On 17.12.2020, he formally arrested Saifullah. He also collected the CDRs of the mobile phones of the deceased and the accused persons. On 19.12.2020, the accused, Saifullah, led to the recovery of the deceased’s mobile phone (P-5). On 20.12.2020, while in custody, Syed Ali Shah got recovered a 30 bore pistol. He also deposited USB handed over by the complainant and the Samsung mobile phone of the accused Ali Shah at the office of the Cybercrime Wing of FIA. During cross- examination, he stated that he reached the place of occurrence at 01:30 p.m., where eight to ten persons had already gathered. Qasim Zia, SI, was also present there. He admitted that he recorded statements of three/four persons on the spot but he do not remember their names. He admitted that supplementary statement of the complainant was recorded in the hospital. He further stated that on 14.12.2020, he reached the hospital at 04:00 p.m. He admitted that, before sending the Samsung J3 mobile phone for forensic examination, he did not check whether it contained any SIM cards and, therefore, could not confirm their presence in the phone. He further admitted that the mobile phone was not properly sealed before its dispatch to the laboratory. He had watched the video of Syed Ali, but did not interrogate the other person named in that video. He also admitted that it had emerged during the investigation that the deceased and Syed Ali Shah had exchanged hot words before the occurrence.

 Qasim Zia, SI (PW-12), was the police officer who first reached the crime scene. He received the complainant’s written application, prepared the report for registration of the FIR and sent it to the police station. During cross-examination, he stated that on 14.12.2020, he travelled to the place of occurrence in a private vehicle and reached there at 1:00 p.m.

 Navid Akbar, HC/5894 (PW-13), stated that, on the relevant day, he was posted at Police Station as Moharrar. He received from Naveed Tahir, SI, two sealed parcels bearing the seal “M.A.”, said to contain a crime empty 30 bore and blood-stained earth. On 18.12.2020, he handed over those parcels to Naveed Tahir, SI, for onward transmission to the NFSL. On 20.12.2020, Naveed Tahir, SI, handed over to him a sealed parcel said to contain a 30 bore pistol. On 28.12.2020, he handed that parcel back to Naveed Tahir, SI, for onward transmission to the NFSL. On 16.12.2020, he received two mobile phones and a USB, which he handed over on 31.12.2020 for onward transmission to the Cybercrime forensic office, Islamabad. On 05.01.2021 he handed over the blood-stained earth to Naveed Tahir, SI, for onward transmission to the Punjab forensic laboratory. During cross-examination, he admitted that Exh.DA was a copy of a statement recorded under Section 161 Cr.P.C.

 Malik Ahmed Shahzad, draftsman (PW-14), prepared the site plan (Exh.PT) on the pointing out of Muhammad Asif.

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 The prosecution closed its evidence by tendering the Forensic DNA and Serology Analysis Report (Exh.PV) and Firearms Report (Exh.PW) into evidence.

6.The statement of appellant was recorded under section 342 Cr.P.C., wherein he neither opted to lead defence evidence nor to record statement under section 340(2) Cr.P.C. He was confronted with the contents of USB (P-1) in Question No.18, to which he responded as follows.-

“That the police officials with a corruptive mindset alongwith the prosecution, fazed me into spilling out words, against my conscience, to satisfy the puppetry that they planned to trap me adversely by subjecting me to perpetual stress and force to make this video as a confessional statement. That the said transcript is made by violation of the procedure as well as mode provided by law which was objected at the spur of moment.”

7.Learned counsel for the appellant, complainant and learned Prosecutor for the State have been heard and the record perused with their able assistance.

8.The occurrence is admittedly unseen. The case of the prosecution is entirely based upon the last-seen evidence and the video footage containing confessional statement to connect the appellant-convict with the commission of the offence. The prosecution’s version, recorded through the supplementary statement, assigned an equal role to accused Saifullah (since acquitted) and the present appellant-Syed Ali Hussain Shah in committing the murder of the deceased with planning and premeditation. The learned trial court acquitted co-accused Saifullah by observing that nothing incriminating was found against him, whereas, on the same set of evidence, the present appellant-Syed Ali Hussain Shah was convicted. It is in this backdrop that the evidence of the prosecution is to be re-evaluated to reach a just conclusion.

9.Abdul Waheed (PW-9) claimed to have seen the deceased in the company of the accused on 11.12.2020 at about 07:00 p.m., whereas the post-mortem examination was conducted on 14.12.2020 at about 03:45 p.m., approximately sixty-eight hours later. However, Dr. Shazia Nazir (PW-5) estimated the probable interval between death and post-mortem examination as twenty-four to forty-eight hours, placing the probable time of death between the afternoon of 12.12.2020 and

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the afternoon of 13.12.2020. Even on the longer estimate of forty-eight hours, a gap of approximately twenty hours intervenes between the alleged last-seen encounter and death. The evidence available on record does not establish that the deceased remained in the company of the accused for a period of more than 24 hours, as admittedly the time between injury is 5-10 minutes approximately. Thus, although the medical evidence does not by itself disprove the alleged encounter of last-seen, it materially weakens the inference that the persons last seen with the deceased were responsible for his death.

10.The prosecution relies on the CDRs (Exh.P1) of the appellant as well as the deceased to connect the appellant with the commission of the offence. Cellular No.92315050853 has been attributed to the appellant-Syed Ali Hussain Shah, whereas cellular No.923155247302 has been attributed to the deceased. The relevant calls between the appellant and the deceased were made at 17:07:32, 17:42:14, 18:00:34, 18:26:11 and 18:29:14 on 11.12.2020. At the given times except 18:29:14, the location of both the appellant and the deceased has been shown as Korang Town, whereas, at 18:29:14 his location changes to commercial area, near Imam Bargah, Pakistan Town Phase I, Rawalpindi. These timings do not correspond with the accounts of PW-6 Asif Mehmood, who was present at the deceased’s house at about 6:00–7:00 p.m.; Arshad Mehmood (PW-10), who saw them in front of the deceased’s house at 6:30 p.m., under the light of a bulb which was not taken into possession; and Abdul Waheed (PW-9), who met the deceased and the accused persons at Chatkhara Hotel at 7:00 p.m., took tea with them and thereafter saw the accused and the deceased proceeding towards the spring/chashma. Interestingly, the prosecution chose to adduce the deceased’s CDR only up to 18:29:14 on 11.12.2020, depriving the Court of the opportunity to examine his subsequent movements. On the other hand, the location of the appellant-Syed Ali Hussain Shah from 18:29:14 on 11.12.2020 onwards is shown as Khayaban-e-Sir Syed, Rawalpindi.

11.If the deceased was standing in the company of the accused persons in front of his house, as stated by Arshad Mehmood, why did Muhammad Asif not see them when he also went outside shortly after the deceased left the house? According to Abdul Waheed, at 7:00 p.m., the deceased was sitting in the company of the

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accused persons at Chatkhara Hotel, where they took tea together. This would have consumed some time at the hotel. Thereafter, he allegedly saw the deceased accompanying the accused towards the chashma, where, according to the prosecution, the accused committed his murder and buried the dead body beneath the mud. However, the prosecution’s own evidence, namely the CDR (Exh.P1), places the appellant-Syed Ali Hussain Shah at Pakistan Town, Rawalpindi at 18:29:14 on 11.12.2020. The case is of last-seen evidence, therefore, these contradictions and inconsistencies are of a high value to determine guilt of the appellant and maintain the conviction.

12.The non-production of the deceased’s CDR beyond 18:29:14 on 11.12.2020 and that of the appellant beyond 20:46:32 on 15.12.2020 also appears deliberate for the reasons that it curtailed the Court’s ability to examine the subsequent movements of the deceased, the persons with whom he established contact and how his mobile phone was handled before, during and after the occurrence. Likewise, the non-production of the appellant’s CDR beyond 20:46:32 on 15.12.2020 lends support to the appellant’s stance that the video footage was the result of coercion. According to the forensic analysis, the video was created on the appellant’s mobile phone on 16.12.2020 at 12:37:40 a.m. The CDR of cellular number of the appellant was not produced up to the time of his arrest on 16.12.2020 to establish that he was at liberty when the video was made. In these circumstances, an inference can be drawn that the video was the result of coercion, as stated by the appellant in response to Question No.18 of his statement under section 342 Cr.P.C.

13.Even otherwise, the prosecution’s case concerning the USB and the appellant’s mobile phone also suffers from material infirmities. According to the forensic report, calls were made to the deceased from the said mobile phone. However, Naveed Tahir, SI (PW-11), admitted during cross-examination that, before sending the Samsung J3 mobile phone for forensic examination, he did not check whether it contained any SIM cards and, therefore, could not confirm their presence in the handset. He further admitted that the mobile phone was not properly sealed before and at the time of its dispatch to the laboratory. The presence of the relevant SIM card in the said handset would have provided an

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important link connecting the attributed cellular number with the mobile phone recovered from the appellant-convict; however, this link is also missing from the prosecution evidence. In addition, dispatching the mobile phone for forensic analysis without properly sealing it left open the possibility of tampering with the evidence.

14.The crime empty was recovered from the crime scene on 14.12.2020. The appellant Syed Ali Shah was arrested on 16.12.2020. Whereas, as per the Firearm Report (Exh.PW) the crime empty was received in NFSA on 18.12.2020 and the pistol recovered from the said accused on 19.12.2026 was received in NFSA on 28.12.2026. There is no explanation as to why the prosecution withheld the transmission of the crime empty recovered from the crime scene promptly on 14.12.2026 until arrest of the appellant-convict on 16.12.2026. Such delay in dispatch of the crime empty for forensic gives an impression that recoveries of the crime empty and the pistol were planted. In the case of Muhammad Abras v. The State (2025 SCMR 1145), the Hon’ble Supreme Court held that delayed transmission of the empties and weapon deprives the positive forensic report of evidentiary significance.

15.The testimony of witnesses in relation to the place of occurrence is also inconsistent. The complainant Muhammad Asif (PW-6) disclosed that when he found the dead body he did not inform anyone. He also showed lack of knowledge as to who called the police at the place of occurrence. He also admitted that during the period i.e. 11.12.2020 to 14.12.2020 no application was submitted to the police. He also admitted that no person from amongst the people gathered at the place of occurrence was associated with the investigation. On the contrary, Naveed Tahir, SI (PW-11) stated that he recorded statements of three/four persons at the crime scene and that Arshad and Waheed also did join investigations in this case. Likewise, the statement of complainant Muhammad Asif regarding discovery of the dead body is also inconsistent with the medical evidence. The complainant in his initial version narrated that only upper portion of the dead body was hidden under the mud, whereas, the Dr. Shazia Nazeer CMO (PW-5) stated that “the dead body was recovered from underground and it was buried”.

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16.It is significant to note that the appellant-convict did not plead guilty to the charge, nor did he record a statement under sections 164 or 364 Cr.P.C. In such circumstances, the question emerges whether the video footage wherein the appellant has been shown to have apparently confessed regarding the commission of the offence attains any legal status and whether a conviction can be based solely on the said piece of evidence?

17.The question requires examination of distinct, though interconnected, matters: the nature of the statement attributed to the appellant; its admissibility under the law governing confessions; the authenticity and integrity of the electronic recording; the circumstances in which the statement was obtained; and its ultimate evidentiary value. These matters cannot be treated as interchangeable. A recording may accurately reproduce words spoken by an accused, yet the statement may remain inadmissible because it was made to a police officer or during police custody without the immediate presence of a Magistrate. Similarly, a recording may be technically genuine, but the statement contained therein may have been procured through coercion or may otherwise be untrue. The Court must, therefore, determine both whether the recording faithfully reproduces the statement and whether the statement itself constitutes legally admissible and reliable evidence of guilt.

18.The absence of a confession recorded under section 164 read with section 364 Cr.P.C. does not, by itself, exclude an extra-judicial confession. In the case of The State v. Minhun alias Gul Hassan (PLD 1964 SC 813), the Hon’ble Supreme Court held:

“It is now well settled that as against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement.”

(underlined to add emphasis)

19.Thus, a confession may legally constitute the sole basis of conviction. Neither the appellant’s plea of not guilty nor his subsequent repudiation of the recorded statement automatically excludes it. However, the Court must first be

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satisfied that it is admissible, duly proved, true and voluntary. Equally, the mere existence of the recording does not establish these essential requirements. Before treating the statement as a confession, the Court must examine its actual contents. In the case of Shahid Ali v. The State (PLD 2026 SC 126), the Hon’ble Supreme Court explained:

“Confession refers to a statement made by a person accepting or acknowledging his or her guilt relating to the commission of a crime or an offence. The acknowledgment of guilt must be with reference to the charge against an accused.”

20.An admission that an accused knew the deceased, met him or exchanged hot words with him is not necessarily a confession of murder. The relevant conversation must be considered as a whole, including any explanation accompanying the words relied upon by the prosecution. An isolated passage cannot be treated as an acknowledgment of guilt if the complete statement conveys a different meaning.

21.The law also places clear restrictions upon the use of confessions in some circumstances. Article 37 of the Qanun-e-Shahadat Order, 1984 excludes a confession where its making appears to the Court to have resulted from the inducement, threat or promise described in that provision. Article 38 prohibits proof of a confession made to a police officer. Article 39, subject to Article 40, prohibits proof of a confession made while the accused is in police custody unless made in the immediate presence of a Magistrate. In the case of Shahid Ali (supra), the Hon’ble Supreme Court observed:

“Article 38 explicitly and in absolute terms mandates that no confession made to a police officer shall be proved as against a person accused of any offence. Article 39 further provides that, subject to Article 40, no confession made by any person while the latter is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person.”

22.Article 40 of the Qanoon-e-Shahadat Order, 1984 provides a limited exception concerning information which leads to the discovery of a fact. It permits proof of the portion of information which relates distinctly to the fact discovered, rather than the entire account of the offence. Consequently, if the prosecution seeks

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support from a recovery said to have followed the recorded statement, it must establish that the discovery resulted from that information. A subsequent recovery cannot, merely because it occurred later, make the whole recorded confession admissible.

23.Even where the statement is not prohibited by these provisions, the recording must be properly proved. In the case of Ishtiaq Ahmed Mirza and others v. Federation of Pakistan and others (PLD 2019 SC 675), the Hon’ble Supreme Court held that “Even where a court allowed an audio tape or video to be produced in evidence, such audio tape or video had to be proved in accordance with the law of evidence.” It was further held that “The evidence sought to be produced through an audio tape or video had to be relevant to the controversy and otherwise admissible.” Thus the permission to produce a video and proof of its genuineness are, therefore, not substitutes for determining whether its contents can lawfully be used against the accused.

24.In the case of Usman Ibrar and others v. The State and another (2026 YLR 50 Islamabad), this Court explained that “The guidelines outlined in the Ishtiaq Ahmed case do not present a conjunctive checklist to be scrupulously followed. Instead, they offer a set of principles that may be employed in demonstrating the authenticity of digital evidence presented in court.” It was further observed that “Ultimately, the decision of whether digital evidence is admissible or not is at the discretion of court, once its source and reliability has been established.”

25.In the case of Abdul Wahid v. The State and another (2022 SCMR 1954), the Hon’ble Supreme Court observed that “...such kind of alleged confessionary video is not beneficial to the concerned party unless it is properly produced before the court of law, its genuineness is established and then the same is proved in accordance with law for it to be treated as evidence in the case.” The observation was made while considering a recording whose maker had not been cited as a witness and which had not undergone forensic examination.

26.In the present case, Muhammad Asif (PW-6) stated that he produced the USB on 17.12.2020, whereas Navid Akbar, HC (PW-13) stated that he received it

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on 16.12.2020. Naveed Ahmed (PW-1) admitted that the USB was handed directly to the investigating officer in an open condition. The investigating officer also admitted that the Samsung mobile phone was not properly sealed before its dispatch for examination. The positive forensic report depends upon what the expert actually examined and established. Such findings do not establishes who arranged the recording or whether the appellant spoke freely. Likewise, the presence of a recording on his phone does not, without further evidence, prove that he personally recorded or uploaded it. The report cannot be treated as establishing matters beyond the scope of the examination conducted.

27.When confronted with the video in Question No.18 of his statement under section 342 Cr.P.C., the appellant specifically challenged the voluntariness of the statement by alleging that police officials, acting with the prosecution, subjected him to pressure and force to obtain the recording. In the case of Shahid Ali (supra), the Hon’ble Supreme Court emphasized:

“The fundamental principle regarding the admissibility and assessment of a confession, judicial or extra judicial, is that it ought to be genuine voluntary and must have been made out of one's free will. It must have been given freely and without any coercion or influence in any form.”

The Court also cautioned:

“It cannot be ruled out that an innocent person may confess so as to free himself from the extreme distressful conditions.”

28.Independent support through evidence to the footage becomes particularly important where the confession is disputed and its surrounding circumstances remain doubtful. In Balwinder Singh v. State of Punjab (AIR 1996 SC 607), the Supreme Court of India observed:

“Where an extra-judicial confession is surrounded by suspicious circumstances its credibility becomes doubtful and it loses its importance.”

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29.In the case of Sahadevan and another v. State of Tamil Nadu (AIR 2012 SC 2435), it further stated:

“For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.”

30.Consequently, although a legally admissible, true and voluntary extra- judicial confession may form the sole basis of conviction, the recorded statement in the present case does not meet that standard. Forensic confirmation establishes the genuineness of the recording, but does not resolve the unexplained circumstances in which it was made i.e. the appellant’s specific allegation of coercion and the discrepancies relating to its receipt and custody. Taken together, these deficiencies leave reasonable doubt about the voluntariness and reliability of the alleged confession. The video, therefore, cannot safely be relied upon either as the sole basis of conviction or as reliable corroboration of the last-seen evidence. The prosecution’s case must accordingly be assessed on the strength of the remaining evidence, without drawing support from the recorded statement.

31.In addition to above the prosecution failed to bring on record evidence regarding the plan and premeditation of the appellant-Syed Ali Hussain Shah and co-accused Saifullah. The prosecution had charged both the accused with the same role. It is matter of record that, vide same impugned judgment the co-accused Saifullah been acquitted by the learned trial Court by disbelieving and discarding evidence of prosecution witnesses and trial court has believed the evidence of the same witnesses against appellant and on the basis of such evidence has passed conviction and sentence. The Hon’ble Supreme Court of Pakistan, in case of Imtiaz alias Taj v. The State and others (2018 SCMR 344) has held as under:

“The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye- witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person and a reference in this respect may be made to the cases of Ghulam Sikander v. Mamaraz Khan (PLD 1985 S.C 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali v. The State (2009

SCMR 6).

Crl. Appeal No. 34 of 2024 and connected matters.

32.As discussed, in the instant case, the prosecution failed to connect the appellant with the commission of the offence through evidence of unimpeachable character. The last-seen evidence is inconsistent with the medical evidence, while the account of the last-seen witnesses suffers from material contradictions. The withholding of the crime empty until the appellant’s arrest has deprived the forensic analysis report of its corroborative value. The production of CDRs covering only selected periods for the appellant and the deceased casts doubt on the fairness of the investigation. Moreover, the appellant’s locations reflected in those records contradict the account of the witnesses regarding his presence with the deceased at the stated times. Taken together, these infirmities break the chain of circumstances relied upon by the prosecution and create reasonable doubt regarding the appellant’s guilt. It is settled principle of law that when the prosecution’s case is not free from doubt, the benefit of doubt must accrue in favour of the accused as a matter of right. Reliance is placed on the cases of Muhammad Akram v. The State (2009 SCMR 230), Tariq Pervez v. The State (1995 SCMR 1345) and Muhammad Akram v. The State (2009 SCMR 230).

33.For what has been discussed above, the Crl. Appeal No.34/2024 is ALLOWED and the impugned judgment dated 28.11.2023 is hereby SET ASIDE. Consequently, the appellant-Syed Ali Hussain Shah is acquitted of the charge. He be released forthwith if not required to be incarcerated in any other case. For the same reasons, the Crl. Appeal No.50/2024 and Crl. Revision No.61/2024 are, therefore, DISMISSED.

(INAAM AMEEN MINHAS) (SHAHRUKH ARJUMAND)

JUDGE JUDGE

Announced in open Court, on 14th day of October, 2026.

JUDGE JUDGE

Approved for reporting.

Tanveer Ahmed/*