KASHIF ABRO vs THE STATE
This criminal appeal challenges the conviction and life imprisonment sentence imposed by the trial court under Section 302 and Section 392 of the Pakistan Penal Code 1860. The core legal question was whether the prosecution sufficiently established the appellant's guilt through circumstantial evidence, specifically regarding alleged recoveries and confessions. The High Court held that the prosecution failed to prove its case beyond a reasonable doubt. The court observed that the complainant’s testimony was hearsay, as the primary informant was not examined. Furthermore, the recovery witnesses (Mashirs) failed to support the prosecution's case and were not declared hostile, and the alleged confession made to police was inadmissible as it was not recorded under Section 164 of the Code of Criminal Procedure 1898. Emphasizing the principle that any doubt in the prosecution's case must be resolved in favor of the accused, the court set aside the conviction and acquitted the appellant. The judgment reaffirms that a conviction cannot rest on inadmissible police confessions or uncorroborated, weak circumstantial evidence, and that the benefit of doubt is a right of the accused.
- Is a confession made to police officers admissible in evidence if not recorded under Section 164 of the Code of Criminal Procedure 1898?
- Does the failure of prosecution witnesses to support the recovery of incriminating articles entitle the accused to an acquittal?
- Can a conviction be sustained based solely on hearsay evidence without the examination of the primary source?
- Is the benefit of doubt a discretionary concession or a legal right of the accused in criminal proceedings?
- Section 302, Pakistan Penal Code 1860
- Section 392, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
- Section 340(2), Code of Criminal Procedure 1898
- Section 367, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
1. ' MAQBOOL AHMED AWAN, J.--- The appeal is directed against judgment, dated 31-7-2007 passed by the learned 1st Additional Sessions Judge, Malir, whereby the appellant was convicted and sentenced imprisonment for life under section 302, P.P.C. Also R.I. For four years under section 392, P.P.C. The appellant was ordered to pay fine of Rs,10,000, in default, he shall further suffer R.I. For one month more. However, the learned trial Court extended the benefit under section 382-B, Cr.P.C. To the appellant.
2. ' The case of the prosecution is that on 14-12-2004, the complainant Noorul Amin Ansari lodged F.I.R.
3. At Police Station Sachal of Gulshan Town, Karachi, stating therein that his paternal-aunt Mst.
4. Adeeba Ansari aged about 63 years had retired as School Teacher and was residing in House No,R- 87, Rizwan Society; she was unmarried; complainant's mother sent her said servant to the said house to deliver the clothes to deceased Mst. Adeeba Ansari but the said servant returned back and reported that the door of the house was locked from inside, while the deceased was not responding to open it; on this complainant's mother went to the house of Mst. Adeeba Ansari, but the door of the house could not get opened and she informed the complainant by telephone; he took the key maker mechanic with himself and went to the house of deceased Adeeba Ansari; and the door of the house was got opened; they found dead body of Mst. Adeeba Ansari lying below the bed, while her hands were found tied, at her back; complainant immediately informed the police officials, at 15; all the household articles were lying scattered while the panes of the cupboard were found opened. The complainant further stated in the F.I.R. That the deceased appeared to have been hit on her head with some hard and blunt substance to commit her death and all the valuable articles had been taken away by the culprits.
5. ' Charge was framed, to which, the appellant pleaded not guilty and claimed to be tried. The prosecution in support of their case have examined P.W.1 Noorul Amin, the complainant, P.W.3 Imdad Ali Soomro, P.W.4 Inayatullah Ismail, P.W.5 Choudhary Imtiaz Ali P. W.6 Abdul Rahim, P.W.7 Adil Bhutto, P.W.8 Abdullah Bhutto, P.W.9 Muhammad Abbass, P.W. Ghaffar Shah, P.W. Tarique Khan, P.W.10 Bashir Muhammad Khan, P.W. Dr. Nasreen Qamar. Thereafter the learned D.D.A. Appearing on behalf of the State closed the side of prosecution.
6. ' The accused was examined under section 342, Cr.P.C. He in his statement denied the allegation of the prosecution and claimed to be innocent. He has not examined himself on oath in terms of section 340(2), Cr.P.C. Nor led any evidence in his defence.
7. ' Mr. Jamal Ahmed Mufti, learned counsel for the appellant, has argued that the learned trial Court has committed serious illegality while not properly appreciating the evidence brought on record by the prosecution; that the learned trial Court has erred while believing the same set of evidence against accused/appellant, on the basis of which co-accused has been acquitted; the learned trial Court has violated the mandatory provision of section 367, Cr.P.C. While not properly discussing the evidence; he, therefore, prayed for acquittal of appellant. He relied upon the case of Muhammad Akram v. The State reported in 2009 SCM R 230 and a case of Abdul Qadir Motiwala v.
8. The State reported in 2000 PCr.LJ 1734.
9. ' Ms. Farkhunda Mangi, counsel for the State has opposed appeal and supported the judgment passed by the learned trial Court on the ground that the witnesses have fully implicated the appellant and the learned trial Court has rightly convicted the appellant from whom the recovery was made; there is iota of evidence against him to connect him with the commission of offence.
10. ' I have heard the learned counsel for the parties and also minutely and carefully gone through the entire evidence brought on record by the prosecution with the kind assistance of learned counsel.
11. ' In the case in hand there is only piece of evidence against the appellant is based upon the circumstantial evidence, which consists upon recovery.
12. ' P.W.1 Noorul Amin, the complainant, in his evidence has not deposed against the appellant. From his evidence, it appears that he has not seen the incident, however, he was informed on telephone by his mother about the incident. The mother has not been examined by the prosecution to corroborate the version of complainant ' P.W. Dr. Abdul Rahim and Adil Bhutto both are the Mashirs of alleged recovery. They in their evidence have not supported the piece of recovery against the appellant.
13. ' P.W. Tarique, in his evidence, has deposed that accused has admitted to have committed the murder, From the evidence above, it appears that no one has implicated the accused in present case; that the Mashirs of recovery even in their evidence have not implicated the appellant. Even they have not been declared hostile by the learned Public Prosecutor. The evidence, of complainant is hearsay and the person, who informed the complainant about the murder on telephone, has not been examined by the prosecution to corroborate the version of complainant. The Investigating Officer, before whom, the appellant has confessed the guilt, has not produced the appellant before any Magistrate for recording of his statement under section 164, Cr.P.C. It is well-settled law that the statement made by accused before police is inadmissible; the case of Abdul Qadir Motiwala (supra), is very much applicable in the case in hand.
14. ' It is a well-settled law that any slightest possible doubt created that, must go in favour of the accused. In the case of Muhammad Akram (supra), the benefit of doubt was given to the accused because the prosecution failed to prove the-case against accused and it was held that under the circumstances, it was right of the accused to be given not as a grace or concession.
15. For the foregoing reasons, the appeal of the appellant is allowed; the conviction and sentence passed by the learned trial Court is set aside.. He is in custody, shall be released forthwith, if not