Emran Ullah Versus Muhammad Azam
Sahibzada Asadullah, J .--- Through this single judgment, this Court intends to decide the instant criminal appeal as well as the connected Criminal Appeal No. 212-P/2024 titled "Muhammad Azam v. The State and others" and Criminal Revision No. 48-P/2025 titled "Muhammad Azam v. The State and others" as all these matters arise from the same judgment dated 15.02.2025, passed by the learned Additional Sessions Judge-I, Takht Bhai, District Mardan. The said judgment was rendered in case FIR No. 698 dated 22.09.2022, registered under Sections 302, 200, 201, 109, and 34 of the Pakistan Penal Code (P.P.C), read with Section 15-AA, at Police Station Shergarh, Tehsil Takht Bhai, District Mardan, whereby the appellant was convicted and sentenced as under:
"Under sections 302(c)/109/34 P.P.C to rigorous imprisonment for five years as Tazir and to pay compensation amounting to Rs.2,00,000/- (rupees two lac) to the legal heirs of the deceased within the meaning of section 544-A, Cr.P.C and, in default of payment, he shall further undergo simple imprisonment for two months.
"Under section 15AA to rigorous imprisonment for two years as Tazir, and to pay a fine of Rs.20,000/- (rupees twenty thousand) and, in default of payment, he shall further undergo simple imprisonment for one month.
Both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C was extended in favor of the appellant."
2. The facts forming the background of the instant case are that on 22.09.2022, Mst. Ghazala, wife of Muhammad Arif, reported the matter to the local police at RHC Hospital, Sher Garh, stating that her husband was a drug addict and suffered from depression, for which he had been treated by various medical practitioners. She further alleged that when she came out of the room, her husband committed suicide by shooting himself with his own pistol, sustaining head injuries, whereupon the present FIR was registered under Section 325, P.P.C. Subsequently, the injured succumbed to his injuries, leading to the alteration of the penal sections from 325, P.P.C to 302, P.P.C. During the course of investigation, the brother of the deceased, namely Muhammad Azam, recorded his statement under Section 164, Cr.P.C before the court of competent jurisdiction on 27.09.2022, wherein he implicated Mst. Ghazala and Imran Ullah in the commission of the offence.
3. The complete challan was submitted before the learned trial Court. Compliance was made with the provisions of Section 265-C, Cr.P.C. The appellant, along with the absconding co-accused, was formally charge-sheeted, to which both pleaded not guilty and claimed trial. In order to substantiate its version, the prosecution produced and examined as many as nine (09) witnesses and thereafter closed its evidence. It is pertinent to mention that when the case was fixed for recording the statement of the accused under Section 342, Cr.P.C, co-accused Mst. Ghazala absented herself, and proceedings under Section 512, Cr.P.C were initiated against her. The statement of the appellant was duly recorded under Section 342, Cr.P.C, wherein he professed innocence. However, he neither opted to be examined on oath under Section 340(2), Cr.P.C nor produced any evidence in his defence. Upon conclusion of the trial, the learned trial Court, after evaluating the evidence in its entirety, convicted and sentenced the appellant through the impugned judgment, hence the instant appeal.
4. Arguments heard and available record scanned through.
5. The shocking incident claimed the life of the deceased, who, in an injured condition, was hurriedly shifted to the hospital, where the matter was reported by the complainant. The injury sheet was prepared, and the injured was medically examined by the doctor. As the injured later succumbed to his injuries, Section 302, P.P.C was added. Subsequently, the complainant recorded his statement under Section 161, Cr.P.C, wherein he nominated Mst. Ghazala for the murder of the deceased in connivance with the appellant. The brother of the deceased also recorded his statement under Section 164, Cr.P.C, wherein he explained the circumstances leading to the tragic death of the deceased. The Investigating Officer visited the place of occurrence and, on the pointation of the accused then complainant, prepared the site plan. During the spot inspection, blood through cotton was collected from the place of deceased along with an empty of .30 bore lying scattered on the ground, and a .30 bore pistol. The accused were subsequently arrested, and during the course of investigation, they confessed to the killing of the deceased. It was brought to the knowledge of the Investigating Officer that the said pistol had been purchased from one Saddam, who owned a shop in Sakhakot Bazar. The Investigating Officer visited Saddam, recorded his statement under Section 161, Cr.P.C, and collected CCTV footage which was later converted into a USB device and taken into possession. During further investigation, the recovered crime empty and the pistol were sent to the Forensic Science Laboratory for analysis, and a report was received confirming that the said empty had been fired from the recovered weapon. The Investigating Officer also moved an application before the Court of competent jurisdiction for obtaining photographs of the appellant, who was then confined in judicial lockup, for the purpose of comparing the same with the CCTV footage obtained from a bank situated in Sakhakot. The statement of the computer operator, who assisted in retrieving the CCTV footage, was also recorded. As Mst. Ghazala absconded after obtaining the concession of bail, proceedings under Section 512, Cr.P.C were initiated against her, while the appellant faced trial and, upon conclusion thereof, was convicted and sentenced through the impugned judgment.
6. The points for determination before this Court are: whether the incident took place in the mode, manner, and at the time as alleged by the prosecution; whether the prosecution succeeded in collecting independent evidence in support of its version; whether the circumstantial evidence brought on record sufficiently connects the appellant with the commission of the murder of the deceased; whether the medical evidence supports the prosecution's case; and whether the prosecution has succeeded in proving the guilt of the appellant beyond a reasonable doubt.
7. In order to appreciate the peculiar circumstances of this case, it is deemed essential to examine the collected evidence, as the prosecution's case primarily hinges upon circumstantial evidence and the statement of the brother of the deceased, who appeared as PW-05. This Court is required to assess whether the appellant was responsible for the murder of the deceased, and whether it was he who purchased the pistol and handed it over to the absconding co-accused, and whether, due to this alleged relationship, the murder of the deceased was committed. It is true that PW Azam Khan could not satisfactorily explain how he came to know about the involvement of the appellant in the unfortunate incident, nor could he establish whether the information was received from an independent source. Initially, the matter was reported as a case of suicide; however, some days after the incident, PW Azam Khan recorded his supplementary statement, in which he implicated the absconding co-accused and the appellant, alleging that the motive for the murder was their illicit relationship. Neither the Investigating Officer was able to record the statement of any independent witness in this regard, nor was any credible evidence produced to demonstrate that the appellant had visited the house of the deceased. Even the neighbors of the deceased did not confirm the existence of any such relationship. In order to assess whether the prosecution could collect any independent corroborative evidence, and whether the Investigating Officer was able to bring anything on record establishing the alleged relationship, the statement of the Investigating Officer, who appeared as PW-07, was examined. It is true that the Investigating Officer visited the place of occurrence, collected blood-stained cotton and spent crime empties along with a .30 bore pistol; however, he failed to collect any evidence that would establish the involvement of the appellant in the murder of the deceased or confirm that he played an instrumental role in the commission of the offence. The Investigating Officer was questioned on material aspects of the case, particularly regarding the recovery of the mobile phone of the absconding co-accused in burnt condition from a room, and the visit to Sakhakot Bazar, where he recorded the statement of arms dealer Saddam and collected CCTV footage from the nearby bank. It is noteworthy that the Investigating Officer did not specify the mode and manner in which Saddam's statement was recorded, nor did he confirm whether Saddam supported the prosecution's case. It is significant to note that Saddam did not know the appellant and could neither identify him nor confirm any acquaintance between him and the female accused. This Court must determine whether the appellant had visited the arms dealer in the company of the absconding co-accused, and if so, for what purpose. If the intention was to purchase a pistol to be used in the commission of murder, there was no plausible reason for the appellant to take the co-accused with him, as he could have purchased the weapon alone. Moreover, although the CCTV footage collected from the nearby bank purportedly showed the presence of the female accused, there was nothing in the background of the footage to confirm that the ATM machine was located near the arms dealer's shop. Another crucial aspect that cannot be overlooked is that the video recording was found to be corrupted and could not be played when the trial court attempted to view it. It was for the prosecution to establish that the female accused visited the arms dealer in the company of the appellant and that the appellant purchased the pistol; however, the Investigating Officer failed to establish that Saddam was the owner of the shop or that he was operating it legally. When questioned, the Investigating Officer explained that the shop was situated in Malakand and that Saddam was engaged in the sale of unlicensed arms, due to which he could not collect or recover any documentation regarding the legitimacy of the business. In such circumstances, this Court is confident in holding that this piece of evidence cannot be considered reliable, especially when the shopkeeper appeared before the Court and recorded his statement as PW-09. The said witness did not support the prosecution's case and categorically stated during cross-examination that he did not sell any pistol to the appellant or to the absconding co-accused. Although an attempt was made by the prosecution to have the witness declared hostile, the learned trial Court declined such request, and as a result, the statement of the witness leads to the sole conclusion that he did not support the prosecution's version of events.
8. The deceased was survived by two sons, namely Bilawal and Muiz, whose statements were neither recorded by the Investigating Officer nor did they appear before the learned trial Court to depose against the accused. It was incumbent upon the Investigating Officer to explain why he failed to record the statements of these material witnesses, being the sons of the deceased, who could have shed light on the circumstances surrounding the unfortunate incident. The Investigating Officer also failed to provide any plausible justification for not making efforts to secure their attendance before the Court of competent jurisdiction, and such lack of diligence has adversely affected the prosecution's case. The Call Data Record (CDR) failed to establish that the respective SIMs were in the use of the accused. When questioned regarding the ownership of the SIM allegedly recovered from the appellant, the Investigating Officer was unable to produce any relevant documentation from the concerned company to confirm the same, nor could he convincingly establish that the said SIM was in use by the appellant. Although a mobile phone was allegedly recovered from the possession of the appellant at the time of his arrest, the prosecution failed to demonstrate when and how the same was recovered, and no witness was produced in that respect. While it is true that the mobile phone was allegedly deposited with the Moharrir of the Police Station, no document evidencing such deposit was brought on record, nor was any relevant witness examined to confirm that the said mobile phone was recovered in the presence of the Investigating Officer. Given the questionable nature of this recovery, this Court is not inclined to place reliance upon it, and once this piece of evidence is excluded from consideration, the photographs captured inside the judicial lockup would hardly suffice to connect the appellant with the commission of the offence. The doctor, who appeared as PW-03, confirmed the injury on the person of the deceased but was unable to conclusively opine whether the cause of death was homicidal or suicidal. In the absence of a definitive medical opinion, this Court is not inclined to substitute its own inference in place of expert medical testimony. The uncertainty surrounding the chain of events leaves no room for doubt that the witnesses failed to establish that the deceased was murdered, nor could they confirm any alleged relationship between the appellant and the absconding co-accused. It is pertinent to mention that the appellant is charged with abetment, while the absconding co-accused is alleged to have committed the act of firing upon the deceased. Therefore, to hold the appellant liable, the prosecution must produce cogent and convincing evidence connecting him with the principal accused. However, no witness came forward to state that the appellant used to visit the house of the deceased or that he had any known relationship with the absconding co-accused. The non-examination of the sons of the deceased, who were in the best position to comment on the alleged relationship, has created serious doubts in the prosecution's case, and further confirms that their evidence was likely to be unfavorable to the prosecution. In the absence of their examination, this Court is justified in drawing an adverse inference against the prosecution and is therefore inclined to hold that had these witnesses been produced, they would not have supported the prosecution's case regarding the involvement of their mother in the killing of their father. Reliance is placed on case titled "Muhammad Ramzan v. The State" reported as 2025 SCMR 762 , the relevant is reproduced below: -
"At the trial, the prosecution has not produced Matloob Hussain, the owner of the house as witness. An adverse inference is drawn under Article 129(g) of the Qanun-e-Shahadat Order, 1984 to the effect that had the above witness been produced by the prosecution at the trial, they would not have supported the version of the prosecution. Reliance in this regard is placed on the case of "Mst Saima Noreen v. The State" (2024 SCMR 1310)."
9. It is true that a conviction can be based solely on circumstantial evidence, but it is equally well-settled that for such evidence to sustain a conviction, the prosecution must establish a complete chain of circumstances, with one end firmly connected to the dead body of the deceased and the other leading unmistakably to the neck of the accused. In the present case, neither the brother of the deceased is an eye-witness to the occurrence, nor has any person from within the household been examined to corroborate the allegation that the deceased was killed by the absconding co-accused in collusion with the appellant. Furthermore, no independent witness has come forward to provide testimony regarding any alleged relationship between the appellant and the absconding co-accused. In these circumstances, the requisite chain of evidence remains incomplete and the critical links necessary to establish the guilt of the appellant are clearly missing. When such essential links are absent, the circumstantial evidence loses its probative value, and this Court is therefore not inclined to place reliance upon the same. Reliance is placed on the judgment of august Supreme Court of Pakistan cited as 2024 SCMR 1782 titled "Rehmatullah and 2 others v. The State" wherein, it has been held as under:
"Since there is no direct evidence and the prosecution case hinges upon the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other to the neck of the accused. But if any link in the chain is missing then its benefit must go to the accused. In this regard, reference may be made to the cases of Ch. Barkat Ali v. Major Karam Elahi Zia and another (1992 SCMR 1047), Sarfraz Khan v. The State (1996 SCMR 188), Asadullah and another v. The State (1999 SCMR 1034) and Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103)."
10. The medical evidence does not support the prosecution's case, as the deceased sustained a firearm injury bearing charring marks, which indicates a close-range shot. Furthermore, it is an admitted fact that the deceased, in an injured condition, was hurriedly shifted to the hospital by the absconding co-accused. Had the intention been to kill the deceased, the accused would have refrained from taking the risk of transporting him to the hospital, especially when there was a possibility that upon regaining consciousness, the deceased could implicate them in the offence. These surrounding circumstances suggest that while the prosecution attempted to collect independent and corroborative evidence in support of its claim, it failed to do so. In the absence of such evidence, the appellant cannot be held responsible for the murder of the deceased, particularly when no direct or active role of firing has been attributed to him. Moreover, when the prosecution's main piece of evidence i.e., the alleged purchase of the pistol from the shop of one Saddam, has been disbelieved, and the arms dealer himself denied ever having sold the said weapon to the appellant, then nothing substantial remains on record to connect the appellant with the commission of the murder.
11. The alleged motive in the present case was stated to be an illicit relationship between the appellant and the absconding co-accused; however, neither did the Investigating Officer record the statement of any independent witness in support of this claim, nor could the witness namely Azam Khan, satisfactorily explain the source of his information. In this view of the matter, the alleged motive remains unproven. Even otherwise, the Investigating Officer, in his statement before the Court, admitted that the supposed relationship was based merely on rumors. Consequently, the appellant appears to have been charged primarily on the basis of suspicion, and in our considered opinion, the prosecution has failed to substantiate the alleged motive. It is indeed a settled proposition that the absence or weakness of motive alone is not sufficient ground for acquittal; however, where motive is asserted as the sole basis for the commission of the offence, its failure becomes significant and may be considered as a factor favoring the accused. The present case falls squarely within that category. Reliance is placed on case titled "Muhammad ljaz alias Billa and another v. The State and others" (2024 SCMR 1507), wherein, the august Supreme Court held as under:
"As far as the motive is concerned, the prosecution alleged that the appellants murdered the deceased because he forbade appellant Muhammad Ijaz from coming to his house due to an illicit relationship with his wife, Mst. Naseem Akhtar. Primarily, the prosecution has failed to establish the fact of the alleged illicit relationship between the appellants. Therefore, the alleged motive lacks the force necessary to connect the appellants with the commission of the offence. Without concrete evidence proving the illicit relationship, the motive claimed by the prosecution remains unsubstantiated and cannot be relied upon to support the conviction. This fundamental gap in the case of the prosecution casts significant doubt on its narrative and the alleged motive behind the crime."
12. The attending circumstances of the present case lead us to the inescapable conclusion that the prosecution has failed to establish any cogent link connecting the appellant with the commission of the offence. The impugned judgment suffers from misreading and non-reading of material evidence on record, thereby warranting interference by this Court. The instant criminal appeal is allowed, the impugned judgment is set aside, and the appellant is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case.
13. Now diverting to the connected criminal revision No. Cr.R. No. 48-P/2025, which has been filed by the complainant for enhancement of the awarded sentence. As the appellant succeeded in earning acquittal and the impugned judgment is set aside, so the instant criminal revision has lost its utility, the same is dismissed as such.
14. Now adverting to the connected Criminal Appeal No. 212-P/2025, filed by the complainant Muhammad Azam against the acquittal of the accused/respondent Imran Ullah under Sections 200, 201, and 109, P.P.C, it is observed that Sections 200 and 201, P.P.C pertain to the giving of false information or making a false declaration, which, as per the record, was allegedly made by the absconding co-accused Mst. Ghazala. Therefore, these provisions are not attracted in the case of the present respondent. In view thereof, Criminal Appeal No. 212- P/2025, being devoid of merit, is hereby dismissed.
Above are the detailed reasons of the short order of even date.
JK/28/P Appeal allowed.