Zubair Ahmad Versus State
1. Salah-ud-Din, J .--- Appellants namely Zubair Ahmad and Dawood Khan have called in question judgment of their conviction and sentence passed by learned Additional Sessions Judge, Malakand, at Dargai, dated 02.11.2024, rendered in case FIR No. 243 dated 08.11.2021, under sections 302,109,34 P.P.C, read with section 15-AA of P.S Sakhakot, District Malakand, whereby upon conclusion of a full-fledged trial, appellants were convicted and sentenced as follows: -
2. Under section 302 (b)/34 P.P.C to life imprisonment, along with compensation of Rs. 5,000,000/- (Fifty Lac), to the legal heirs of the deceased in default of payment of compensation the accused shall undergo simple imprisonment of five (05) years, additionally.
3. Accused Zubair Ahmad is also convicted under section 15- KPK Arms Act for simple imprisonment of five (04) years and Rs. 10000/- (Ten thousand) in default of fine the accused Zubair Ahmad should further suffer five (05) months simple imprisonment.
4. All the sentence awarded the accused shall be running concurrently, and benefit under section 382-B, Cr.P.C, was extended to both the accused.
5. Case property in shape of the weapon of offence and ammunition and motorcycle is confiscated to sate whereas rest of the case properties shall be destroyed after final result of appeal/ revision, if any filed by the parties.
2. Arguments of learned counsel for parties as well as learned Astt: A.G for State were heard and requisitioned record gone through with their valuable assistance.
3. As per prosecution story, complainant namely Abdul Jalal reported the matter to local levy officials at Dargai hospital in terms that on the fateful day i.e. on 08.11.2021 he was present in Sakhakot Bazar. In the meanwhile, at 20:20 hours, he was informed via mobile phone that two unknown motorcyclists killed his brother namely Muhammad Zada. Pursuant to receipt of such information, when complainant reached to the spot, he found dead body of his brother, smeared in blood. Complainant shifted dead body of his deceased brother to Dargai hospital, with the help and facilitation of his neighbors, through an ambulance of rescue 1122. Subject occurrence might have been witnessed by someone. No motive qua commission of offence was disclosed by complainant at the time of lodging of his initial report. In view of report of complainant Murasila' (Ex. PA/1) was drafted which culminated into ibid FIR (Ex PA) registered against unknown accused at P.S W.R.S. Sakhakot, District Malakand. Later on, the accused/appellants and other acquitted co-accused were charged in the case in hand mainly on the basis of CDR data as well as CCTV footages.
4. In the instant case, prosecution mainly relies upon ocular-account furnished through the statement of complainant, confessional statements of both appellants namely Zubair Ahmad and Dawood Khan, CCTV footages and CDR data of nominated accused. For reappraisal of evidence, evidentiary value of each of these incriminating articles are taken for discussion, one-by-one.
6. Ocular account: - a. Ocular-account comprises of a solitary statement of brother of deceased namely Abdul Jalal. No doubt, conviction can be based on a solitary statement of a witness in a case of capital charge, provided it is direct, reliable, confidence inspiring and presence of the PW at the relevant time and place is proved and justified. Similarly, there is no denial to this fact that a mere relationship of a witness with deceased does not make him an interested witness. Here PW-4, namely Abdul Jalal is the complainant of present case. But admittedly he is not an eye-witness of the occurrence as he states in the FIR that he received phone call that his brother has been done to death through firearm by two motorcycle riders. Pursuant to receipt of such information when he reached to the spot, whereby he found his brother lying dead. Therefore, he names no one in the FIR, rather unknown accused were held responsible for the murder of deceased. Similarly, he is also not the person who pointed-out the place of occurrence to police, rather, they themselves located and traced-out the venue of crime, upon their own observations, wherein also nobody was cited as an accused. b. Then on 20.11.2021, 164 Cr.P.C, statement of PW Abdul Jalal was recorded, where he without disclosing the source of his information and satisfaction, charged present appellants for committing the murder of his deceased brother. It is pertinent to mention here that appellants had been arrested on 14.11.2021, some thirteen days prior to recording of 164 statement of complainant and on the same day they had been committed to police custody. Even then, learned Magistrate did not bother to call/ summon the appellants and to give them an opportunity to cross-examine the complainant. Now this court has to see whether under section 265-J, Cr.P.C such kind of 164 statement is acceptable or has any legal worth. Moreover, a supplementary statement before the Court cannot replace the FIR; therefore, no worth can be given to it. Reliance is placed on the judgment of Hon'ble apex Court, rendered in case titled "Kashif All v. Judge Anti-Terrorism Court No. II, Lahore and others" reported as PLD 2016 SC 951, whereby it was held that:-
7. Supplementary statement recorded by prosecution witness after more than a month of the occurrence. Such statement had no legal value and was inadmissible in evidence and could not be used to contradict the contents of the FIR. Supplementary statement recorded subsequently to the FIR could be viewed as improvements made to the witness's statement.
8. Lahore High Court (Multan Bench Multan) in case titled "Altaf Hussain and another v State and others" reported as 2010 PCr.LJ 1593 has reiterated same rational by observing that:-
9. "Supplementary statement can be invented at any time because it was never signed or thumb marked by its maker by informant whereas any report under section 154, Cr.P.C. was also signed or thumb marked and the report was maintained at the police station and no possibility of any change or interpolation in the statement under section 154, Cr.P.C."
10. Further reliance is placed on the judgment of apex reported as Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Amir Zaman v. Mehboob and others 1998 SCMR 685; Zulfiqar Hussain v. The State 2011 SCMR 379 and Abid Ali v. The State 2011 SCMR 161. c. On 09.12.2021, statement under sction 164 Cr.P.C of one Khanzad Gul, father of the deceased was recorded, wherein he deposed that on the day of occurrence he heard fire-shots and when he came out of his house, he found his son in murdered condition. But the important and relevant portion of his statement is that Assistant Commissioner Fawad Khattak and Additional Assistant Commissioner Waheed Ullah reached to the spot and both of them collected the CCTV footages of the camera, installed at the building of Government School, however, when he was examined in court as PW-06, whereby he made certain improvements but in no way, he could be given the status and caliber of an eye-witness. Ocular account furnished through PW-4, PW6 is not capable to provide a base for conviction of appellants.
11. Confessional statements of appellants:-
12. Legal Aspect: -
(A) In absence of corroboration whether a retracted confession can be based for conviction in a capital charge?
(B) Court has to see voluntariness of the confession and whether it was free from force or coercion?
(A) Insofar as first formulated question is concerned, no doubt it is settled by now that if the Court was satisfied that confession so made by an accused is voluntary and truthful, in legal parlance, then same alone can be made basis to sustain conviction on the capital charge, event it is retracted or resiled later on, however, rule of prudence demands that a confessional statement should be corroborated by other evidence direct or circumstantial, in material particulars, which is not available in the present case. In case titled "Maj. (Rtd.) Tariq Mehmood v. State" reported as 2002 SCMR 1493, the following view was formed by honourable apex Court: -
13. "If the Court was convinced that the confession was voluntary and truthful, the same, even if retracted, could be sufficient to sustain the conviction on the capital charge. Rule of prudence, However, demands that a confessional statement should be corroborated by other evidence direct or circumstantial in material particulars. Judicial confession of the accused."
14. Record transpires that statements under section 364/164, Cr.P.C of appellants were recorded after they remained in police custody for thirteen days, therefore, it cannot be presumed that these were true and voluntary confessions. Appellants have retracted the confessions by stating in their examination under section 342, Cr.P.C that the same were false and fabricated and that they had never confessed their guilt. It was also asserted in response to question No. 12 that confessions have been recorded by local police through use of sheer force and they have also been warned of dire consequences to be made missing persons in case they did not opt to record their confessions. No doubt, conviction of an accused can be based on his belated and retracted confession but when it is corroborated by independent source, which element is hard to find in the case in hand. It was observed by Hon'ble Supreme Court in the case of "Muhammad Ismail and others v. State" reported as 2017 SCMR 898 that in absence of any independent corroboration retracted judicial confession could not be sufficient by itself for recording or upholding conviction of accused.
(B) As far as above-referred second formulated question is concerned, suffice it to say, as per record, appellants were arrested on 14.11.2021, although while replying to questions in their respective confessions, they said that they were arrested on 13.11.2021 and as per their version they were kept in illegal detention for 24 hours and they were shown arrested on 14.11.2021. This aspect of the case was not probed by learned Magistrate. Even he did not inquire from police official who had brought appellants to his Court. If this narration of appellants was taken to be true, then there is nothing in rebuttal that they had remained in illegal detention for long 24 hours and both the appellants were tortured and forcefully compelled to make confessions. In the afore-mentioned backdrop of the case, confession was recorded at a belated stage on 26.11.2021 when they had already remained in police custody for long 13 days. It is settled law that confession recorded with delay over 24 hours is fatal to the acceptance of judicial confession and when there are circumstances which would cast shadow of doubt on its genuineness, then it should be excluded from consideration. Reliance is placed on case titled "Muhammad Pervez and others v. The State and others" reported as 2007 SCMR 670, wherein it was held that:-
15. "In case all the facts are put in a juxtaposition, then it is crystal clear that confessional statement was recorded after five days as the appellant Pervez was remained in the custody of the local police. It is a settled law the delay of over 24 hours would normally be fatal to the acceptance of judicial confession as law laid down by this Court in Naqeebullah s case PLD 1978 SC 21 coupled with the fact that prosecution had failed to explain the delay in recording the confessional statement.
16. Appellants during their examination under section 342, Cr.P.C have also levelled the allegations of torture and maltreatment by police for recording confession and further alleged that they were terrified by local police in police station during their long custody of 13 days and who forced them to confess their guilt, through sheer means of force, pressure and coercion. In order parlance, accused usually used such like tactics to saving his skin, however, their statements cannot be brushed aside without adjudging the same in light of attending circumstances of the case and other evidence on record. It was bounden duty of learned Magistrate concerned to look into all minute details in terms of custody of accused in police and alleged use of coercive measures, if any, used by local police before recording his confession or that he should have either himself or through a doctor physically examined the accused to confirm that he had not been tortured by police before recording his/her confession. Logic behind such precautions, as observed by Hon'ble Supreme Court in case titled "Azeem Khan and another v. Mujahid Khan and others" reported as 2016 SCMR 276, is that all signs of fear inculcated by the investigating agency in the mind of the accused were to be shed out and he was to be provided full assurances that in case he was not guilty or was not making a confession voluntarily then in that case he would not be handed over back to the police. It was further observed by august Court that thereafter sufficient time for reflection was to be given after the first warning was administered and at the expiry of such time, recording Magistrate had to administer the second warning and the accused shall be assured that now he was in safe hands. In the present case, learned Magistrate has shown a total alien to approach to the above-quoted golden principles expounded by apex Court. In order to assess evidentiary value of confession recorded appellant namely Dawood, both question and answer to question No. 12 are reproduced as under:-
17. Thus, keeping in view the delay in recording confessions of appellants and failure of learned Magistrate to take necessary precautions before recording their statements, it cannot be safely held that they had voluntarily recorded their confessions without any torture, pressure or coercion. Reliance is placed on case titled "State v. Asfandyar Wali and others" reported as 1982 SCMR 321, wherein it was observed that: -
18. "According to the settled law, the delay in recording the confession was absolutely shocking. Secondly, the accused was the literally being produced from the dungeons of a medieval Fort. As these circumstances invited suspicion, the least that the Magistrate was required to do was to question the accused about his treatment in custody, and to verify for himself that the body of the accused did not bear any marks of ill-treatment. As these elementary safeguards for recording a confession were disregarded, we respectfully agree with the view of the learned Judges that no reliance whatever can be placed on Asfandyar's confession.
19. Further ahead in ibid judgment of Muhammad Pervez Supra it was also held apex Court that:-
20. "In case all the facts are put in a juxtaposition, then it is crystal clear that confessional statement was recorded after five days as the appellant Pervez was remained in the custody of the local police. It is a settled law the delay of over 24 hours would normally be fatal to the acceptance of judicial confession as law laid down by this Court in Naqeebullah's case PLD 1978 SC 21 coupled with the fact that prosecution had failed to explain the delay in recording the confessional statement."
21. There is nothing on file to suggest that before producing appellants to learned Magistrate for recording their confessions, they were medically examined qua their physical capability to make confession or otherwise. As stated earlier, appellants were statedly arrested on 14.11.2021, on the following day when they were produced before the court, they did not confess their guilt. Police have obtained remand of appellants till 26.11.2021 in three different intervals, however, they did not make any confession during this long intervening period. So, this is how, there is a delay of 13 days in recording confession of appellants. During this period of time, they were produced 03 times before the court but their confessions could not be recorded. It indicates that appellants had not recorded their confessions voluntarily rather they had been forced during their police custody to confess their guilt before the Court. Reliance is placed on the judgment of apex Court, rendered in case titled "State through PG Sindh and others v. Ahmed Umar Shaikh and others" reported as 2021 SCMR 873, whereby it was held that: -
22. "This delay by itself was indicative of the fact that the confessional statements were not made voluntarily. If the object of the accused persons was to tell the truth and they were volunteered to make such statement the same must have been recorded on the first or second day of their arrest. Keeping them in such long detention clearly made both the retracted judicial confessions doubtful and non-voluntarily."
23. Though, delay in recording confession of an accused is not a universal rule for rejecting the same, however, surrounding circumstances were also to be considered regarding believing or not believing confessional statement.
24. Joint confession: -
25. In his examination-in-chief, learned Judicial Magistrate namely Muhammad Ilays PW13, deposed as under: -
26. Here he does not say that at the relevant time, appellant Dawood was also sent outside the court. During cross-examination he says that at 11:15 hours, police produced both the appellants before him (PW-13) and after recording their confessional statements they left the court premises at 14:05 hours. If such assertion of learned Magistrate is taken as correct, then it could be presumed that during the process of recording of confessions of appellants a police official in the capacity of Naib Court, duly dressed up in police uniform had remained inside the premises of the Court, therefore, the accused would have definitely influenced from his overwhelming presence in the Court.
27. Secondly;- If both the appellants went inside the court at 11:15 hours and came out at 14:05 hours together, then it can safely be presumed that the confession of one appellant was recorded in the presence of his co-appellant, then one accused could be influenced from the other. As per law, it was boundan duty of learned Magistrate to first opt for recording of statement of one of the accused, while the other one should be kept in judicial lockup of Court premises till recording of statement of his co-appellant and thereafter confession of another accused should be recorded separately, in individual capacity, however, in the case in hand, such mandatory process has been bypassed by the learned Judicial Magistrate. In this regard, reliance placed on the judgment of this Court, rendered in case titled "Allah Wasava and another v. State and another" reported as 2022 PCr.LJ 616, whereby it was held that: -
28. "Accused were charged for committing murder of the brother of the complainant by firing. Accused had confessed his guilt before the Judicial Magistrate-. While going through the statement of that witness, it was clear that accused was not medically examined before producing him before the Judicial Magistrate. Judicial Magistrate also admitted that he did not direct the medical examination of the accused nor did he examine his body. Needless to say that the Investigating Officer admitted in his cross-examination that after producing both the accused before the Judicial Magistrate, their handcuffs were removed on his direction and he was also sent out of the Court, meaning thereby that confession of one accused was recorded in the presence of other accused."
29. Difference in mother tong/ language: -
30. As per evidence of prosecution, mother tong/language of appellants were Pashtu, whereas the Court language is Urdu. Allegedly, confessional statements bear thumb impressions of appellants showing them illiterates. Apart from above, there is nothing available on record that appellants were either Urdu speaking or they have shown satisfaction over the alleged interpretation offered by learned Magistrate in Pashtu language. In view of above there was a glaring communication gap in-between learned Judicial Magistrate and the accused/ appellants, which element alone render their confessions totally unreliable qua maintaining of their conviction. Hon'ble Supreme Court of Pakistan in its judgment in case titled "Azeem Khan and another v. Mujahid Khan and others" reported as 2016 SCMR 274 has held that:-
31. "The statement of accused be recorded by the Magistrate with his own hand and in case there is a genuine compelling reason then, a special note is to be given that the same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he is Naib Court wearing police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused."
32. While faced with a similar situation this Court has not believed confessional statement in its judgment in the case of "Ali Rehman v. The State" (2021 YLR Note 118, p.163). It was observed therein;
33. "Admittedly, both the Judicial Magistrate and the present appellant did not know the languages of each other and Reader of the Court had acted as an interpreter/translator between them while recording the confessional statement. The best and legal course for the Judicial Magistrate in the mentioned situation was to administer oath to the Reader before recording confession for getting the satisfaction that what the Judicial Magistrate had recorded in his handwriting was the actual utterance of the appellant and was translated word by word by the Reader without any alteration. Even the prosecution has not produced the said Reader of the Court as prosecution witness."
34. Similar observations have also been recorded in an earlier judgment of this Court in case titled "Mst. Bakht Saba and another v. State through Additional Advocate-General and another" reported as 2014 MLD 942, wherein this Court has held that:-
35. "Secondly, the appellants were speaking Pashto while the Magistrate, who recorded the confession, was of Urdu speaking. Adil Mir, Judicial Magistrate, (P.W.5) in the first line of his cross-examination stated that he was not understanding Pashto and requested learned counsel for appellants to ask questions from him in Urdu. He further stated that he had not examined the accused to ascertain as to whether they were maltreated or not. He further stated in his cross-examination that accused were not knowing Urdu while he was not understanding Pashto; therefore, he recorded the confessions through his Steno, namely, Sheraz. He admitted that he has not mentioned this fact in the confessional statements. As there was complete disorder in verbal communication between the Magistrate concerned and the appellants and even the said Sheraz has not been produced, therefore, it cannot be said with certainty that the said Magistrate satisfied himself regarding voluntariness of the confessional statements."
36. After recording of confessions, both the appellants were handed over to Naib Court, who is also a police official. Likewise, both the appellants were not given enough opportunity to ponder before making confession. In this regard, Hon'ble apex Court in case titled "Muhammad Pervez and others v. State and others" reported as 2007 SCMR 670 has held as under: -
37. "It is admitted fact that after recording the confessional statement of the appellant was handed back to the police. Such type of confession keeping in view the peculiar circumstances highlighted hereinabove appears to be irrelevant as law laid down by this Court in Khuda Bakhsh's case 1969 SCMR 390."
38. Further reliance is placed on the judgment of Federal Shariat Court delivered in case titled "Khalid Mehmood v. State and 02 others" reported as 2022 YLR 522, wherein it was expounded that:-
39. "Record showed that in cross-examination Judicial Magistrate admitted not to have asked any question other than mentioned in the questionnaire. After recording confessional statement, Judicial Magistrate committed the accused to judicial custody through Naib Court. Judicial Magistrate admitted that the confessional statement was not written by him by his hand but was scribed by the steno of the Court on his dictation. Admittedly, Recording Magistrate had provided only one opportunity with a single warning for reflection. Usually, the Naib Court was in the uniform, thus shifting of the confessor through a Naib Court also offended the pre-caution. By not providing two opportunities for reflection with intervals intentionally violated the directions rendered by the Supreme Court. Presence of Court Official and writing the confession by him without offering explanation and such fact not contained in the certificate made the entire proceedings of confessional statement un-voluntary and erroneous, making the same inadmissible."
40. It is also part of record that appellant namely Dawood in his confessional statement deposed that he and the co-appellant Zubair have chased down the deceased then alive, who at the relevant time was sitting in a motorcar with his friend Asim for long 20/25 minutes, however, the CDR data collected during the course of investigation has not been showing presence of said Asim near and around the place of occurrence. Likewise, confession of appellant Dawood is not in line with the medical evidence brought on file by the prosecution. For instance, as per medical evidence of deceased, he had received multiple wounds from different directions, however, according to confession of appellant Dawood, it was accused Zubair who has made firing upon the deceased from one side/direction. Similarly, dead body of deceased was examined by Dr. Farman Ali. He was examined in Court as PW-1. In his P.M report, Ex. PW-3/1, medical officer spotted multiple wounds on the body of the deceased, therefore, keeping in view dimension and size of above-referred wounds, same cannot be caused from Kalashnikov, rather these wounds appears to be that of 12 bore shotgun, whereas as against this, in confessional statement of appellant there was no mention of re-loading of Kalashnikov, therefore, these multiple wounds found on the body of deceased could not be caused from a single loaded chamber. Hence, medical evidence contradicts and negates the confessional statement of appellant qua actual mode and manner of the occurrence. Even otherwise, confession of appellant Dawood being exculpatory in nature, which cannot be used as evidence against his co-appellant Zubair, in view of Article 43 of Qanun-e-Shahadat Order, 1984, which is reproduced as under for ready reference: -
41. "Article 43 of the Oanun-e-Shahadat Order (QSO), 1984, in Pakistan, deals with the consideration of a proved confession affecting a person who made it and other persons jointly tried for the same offense. This means that if a confession is made by one accused and implicates another person who is also on trial with them for the same crime, the confession can be considered against both the confessor and the co-accused as circumstantial evidence.
42. In this regard, reliance is placed on the judgment of apex Court rendered in case titled "Mushtaq and others v. the State" reported as 2012 SCMR 109, wherein it was held that: -
43. "As the accused did not admit to have killed the deceased, therefore, he could not be held responsible for killing, on the confessional statement of co-accused."
44. Same ratio further reflects in "Abdur Rehman's case reported as 2018 YLR 1629", wherein it was held by the Hon'ble High Court that: -
45. "Confession made by accused could not be used as a substantive piece of evidence to make the same basis of conviction of co-accused. Confessional statement could be used a corroborative piece of evidence, if corroborated by independent evidence."
46. Gist of above discussion is that retracted confessions of appellants are neither admissible nor acceptable in view of peculiar facts and circumstances of the case in hand, therefore, same are of no worth for prosecution qua maintaining conviction of the appellants.
47. CDR data:-
48. Prosecution has also been relying upon CDR data, Ex. PW-10/1 qua prima facie guilt of appellants, however, in absence of oral transcription same is of no worth because these CDR data only show the location of SIMs in the area of specified towers and not the other way around. In case titled "Slamic Republic of Pakistan through Secretary Ministry of Law and Justice and others v. Imran Ahmed Khan Niazi and others" reported as PLJ 2025 SC 1, it was held by apex Court: -
49. "Incident was unseen and initially nobody was charged for the commission of offence. Complainant had recorded his statement under S.164, Cr.P.C., naming the accused after a considerable delay of 13 days and without disclosing his source of information. No direct evidence was available to prima facie connect the accused with the commission of offence. Evidence in the shape of Call Data Record (CDR) regarding presence of accused in village, without corroborative evidence, was a weak type of evidence and refusal of bail by Trial Court on such a ground was unjustified especially when it was not mentioned in the FIR or statement under S.164, Cr.P.C. that the deceased was last seen in the company of accused. Nothing was recovered from the accused nor had he made any confessional statement, therefore, the case against accused was required to be established through pro and contra evidence."
50. Likewise, Hon'ble apex Court in case titled "Mian Khalid Pervez v. The State and another" reported as 2021 SCMR 522 has formed following view in respect of CDR data: -
51. "Documentary evidence in defence recorded by automated information system. Such evidence was admissible under Art. 164 of the Qanun-e-Shahadat, 1984 but in case of denial, law required that such evidence generated through the automated system must be proved in accordance with law. Courts had been empowered to receive and make use of such evidence collected through modern technologies-. Articles 46-A and 78-A of the Qanune-Shahadat, 1984 as well as the provisions of Electronic Transactions Ordinance, 2002 provided procedure to receive and prove such evidence."
52. Further reliance is also placed on the judgment of this Court, rendered in case titled "Muitaba Hussain v. State and others" reported as 2021 YLR 2233.
53. CCTV footages:-
54. It was specifically claimed by father of deceased namely Khanzad Gul in his statement recorded under section 164 Cr.P.C on 09.12.2021 that Assistant Commissioner Fawad Khattak and Additional Assistant Commissioner Waheed Ullah came to the spot soon after the occurrence and collected CCTV footages from the camera installed at the premises of G.G.H S School Sakhakot. First of all, both these officers have no concern with on going investigation of the case in hand, rather it was the responsibility of Investigating Officer to take into possession this important piece of circumstantial evidence. It is also part of record that when these alleged CCTV footages of the accused have been collected from the school camera, by that time even the FIR was not lodged against the appellants and other acquitted co-accused. As per recovery memo, these CCTV footages have been taken into possession by I.O. on 18.11.2021 i.e. after long 10 days of the occurrence, which were later on saved in the USB, however, it is not clear from record that who had handed over these CCTV footages to the I.O. and as to whether any DVR has also been recovered from the spot or otherwise, especially when two high-ups of local administration have earlier been found interfering with prosecution's evidence, without any authorization on behalf of local police. Under Article 164 of Qanun-e-Shahadat, 1984 evidence through modern device or technologies are admissible but power remains with the court to decide about its admissibility or otherwise. It was also claimed by prosecution that the unfortunate incident of murder of deceased was saved in the USB, wherein allegedly accused have been spotted at the time of killing of deceased, however, neither any photographs of the accused have been brought on record in respect of their identity nor accused have been provided this important piece of evidence. No doubt, photos can be extracted from videos, videos are essentially a sequence of still images displayed rapidly, so, one can capture a specific frame from a video and save it as a photo. This process is often called "Frame Capture" or extracting still.". There is no denial to this fact that these CCTV footages in the form of documentary evidence can be exhibited in evidence and under the ambit of section 265-C, Cr.P.C copies of the same can be delivered to nominated accused. Another important aspect of the CCTV footages is the time mentioned in photographs. As per FIR, the time of occurrence is 08:20 PM. As per P.M.R, the dead body was received in hospital at 8:40 PM. Now it is to be seen that on photographs, exhibited Ex.PW- 12/40, which are consisted of two pages and four photographs, whereby one person was sitting on motorcycle while the other person cannot be spotted in the nearby vicinity, however, surprisingly on the top end of these photographs the time has been shown as 08:42 hours.
55. From bare look of these photographs, the story advanced by prosecution qua identity of appellants is not appealable to sanity because for the sake of arguments, if accused would have the intention to kill the deceased, then they should have tried their level best to conceal their identity, however, in contrary they have been standing beneath an energy source i.e. bulb. Likewise, if accused would have muffled their faces with sheet/Chaddar, then in that eventuality, there was no justification for them to be present beneath the light of bulb and they could easily be vanished in the dark premises of the alleged spot. In view of the time mentioned in these photographs, the whole story of prosecution's case pools apart from each other in a sense that 08:42 hours the alleged occurrence of murder of deceased has not yet been taken place, therefore, very registration of initial report of complainant qua actual time of occurrence is shrouded in mystery and it is not appealable to sanity that if as per contents of FIR the alleged occurrence of murder of deceased has taken place at 08:20 hours, then there was no justification for accused-party to be present on the spot i.e. long 22 minutes of the occurrence. Thus, in view of these alleged photographs neither real identity of the accused could be ascertained during odd hours of the night nor the expert-hands i.e. photographer or concerned official of laboratory have been examined in Court as witnesses, during the course of trial. Reliance in this regard is placed on the judgment of apex Court, rendered in case titled "Ishtiaq Ahmed Mirza and 02 others v. Federation of Pakistan and others" reported as PLD 2019 SC 675, whereby it was held that:-
56. "Requirements for admissibility of an audio tape or video in evidence before a court of law and the mode and manner of proving the same before the court stated.
57. Following are the requirements for admissibility of an audio tape or video in evidence before a court of law and the mode and manner of proving the same before the court:
(i) No audio tape or video could be relied upon by a court until the same was proved to be genuine and not tampered with or doctored.
(ii) A forensic report prepared by an analyst of the Provincial Forensic Science Agency in respect of an audio tape or video was per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.
(iii) Under Article 164 of the Qanun-e-Shahadat Order, 1984 it laid in the discretion of a court to allow any evidence becoming available through an audio tape or video to be produced.
(iv) 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.
(v) Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, had to be produced so as to rule out any possibility of tampering with the record.
(vi) An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.
(vii) The person recording the conversation or event had to be produced.
(viii) The person recording the conversation or event must produce the audio tape or video himself.
(ix) The audio tape or video must be played in the court.
(x) An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.
(xi) The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognized such voice or person.
(xii) Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.
(xiii) The voices recorded or the persons shown must be properly identified.
(xiv) The evidence sought to be produced through an audio tape or video had to be relevant to the controversy and otherwise admissible.
(xv) Safe custody of the audio tape or video after its preparation till production before the court must be proved.
(xvi) The transcript of the audio tape or video must have been prepared under independent supervision and control
(xvii) The person recording an audio tape or video may be a person whose part of routine duties was recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.
58. (xviii) The source of an audio tape or video becoming available had to be disclosed.
(xix) The date of acquiring the audio tape or video by the person producing it before the court ought to be disclosed by such person.
(xx) An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.
(xxi) A formal application had to be filed before the court by the person desiring an audio tape or video to be brought on the record of the case as evidence.
59. Likewise, in respect on non-recovery of DVR (Digital Video Recorder), reference can be made to case tilted "Abdul Hakeem v. State" reported as 2024 PCr.LJ 1764, wherein the following view was formed:-
60. "Record showed that the actual homicide incident remained un-witnessed and till the registration of FIR, the identity of the culprit was unknown and for that reason no one was nominated therein even as a suspect. According to the prosecution case, the police acquired knowledge about the culprit from the visuals captured in the CCTV camera installed at the outer gate of the adjacent house belonging to neighborer of deceased. DVR of the CCTV camera was taken into possession by Investigating Officer through recovery memo. However, it was noticed that though the DVR was statedly taken from the possession of neighborer of deceased but he was not the witness of its recovery memo and even otherwise the DVR was not exhibited in his statement. Such omission gave rise to the query that how it could be ascertained that the DVR exhibited in the statement of Investigating Officer was the same which was installed in the house of neighborer of deceased. From the said visuals complainant identified accused as the person who had been rendered services as servant with the deceased. Such visuals were forwarded to Forensic Science Agency along with accused who after in-depth analysis gave his opinion through his report that forensic facial comparison analysis of accused with the person seen in videos of incident was inconclusive due to minimal facial feature information of suspect. Forensic Science Agency Report, admittedly, did not support the case of prosecution but still it was tendered in evidence---Report through necessary implication of S.9(3) of the Forensic Science Agency Act, 2007, was per se admissible but since it was not in favour of prosecution thus the expert could still be summoned as Court Witness to remove ambiguity arising out of it. Strangely, no effort whatsoever was made by the prosecution to do the needful of summoning the expert from the Forensic Science Agency as witness in the case. Another remedy was available to the prosecution under S.12 of the Forensic Science Agency Act, 2007, but no step even in that regard was taken. In the site plan, neither the house of neighbour of deceased was shown nor the point, where the CCTV camera was installed, was highlighted. For satisfying the legality of the impugned judgment, the DVR was requisitioned and despite best efforts it could not be de-codified to examine the visuals, thus, there was no option but to discard it in accordance with the Forensic Science Agency Report."
61. Non-compliance of 129 (g) of Oanun-e-Shahadat Order, 1984:-
62. It is also a matter of record that the most relevant and important witness of the prosecution i.e. Asim, who according to appellants, was present with deceased, when he was being done to death. He is the friend of deceased. He was identifier of dead body of deceased at the hospital; however, he was abandoned by prosecution without any rhyme and reason, therefore, an adverse inference under Article 129 (g) of Qanun-e-Shahadat Order, 1984 could be inferred in terms that had this PW been produced in Court, he would have not supported the case of prosecution. Reliance is placed on "Muhammad Rafique and others v. State and others" (2010 SCMR 385), wherein it was observed that: -
63. "It is well-settled that if any party withholds the best piece of evidence, then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali would have been examined, his evidence would have been unfavorable to the prosecution."
64. Medical evidence :-
65. Medical evidence furnished in the case in hand contradicts the alleged confessional statements of appellants, whereby multiple wounds have been spotted on dead body of deceased from almost all directions, however, according to confession of appellant Dawood, it was co-appellant Zubair who could be saddled for making firing at the deceased from one angle, hence, medical evidence is of no worth and value for prosecution qua guilt of present appellants.
66. Circumstantial evidence:-
67. Although, when ocular-account is disbelieved then circumstantial looses its importance. As per record, appellants were arrested on 14.11.2021, however, as per recovery memo, Ex. PW-2/1 dated 08.11.2021, blood-stained earth and 17 crime empties have been shown recovered from the spot with help of light of torch, then in such circumstances, identity of accused becomes a relevant factor, especially, when appellant Zubair was arrested from sugarcane crops on 14.11.2021, having been found in possession of Kalashnikov, along with five live rounds. Here the question arises, that if the appellant was having any connection with murder of deceased, then why he would keep the weapon of offence with him for long six days, when he could get rid of it easily by throwing in the river, therefore, circumstantial evidence is also not in line with the story of prosecution. It is otherwise well settled that when substantive evidence fails to connect an accused person with commission of an offence or is disbelieved, corroborative evidence is of no help to prosecution, as corroborative evidence cannot by itself prove prosecution's case. Hon'ble Supreme Court of Pakistan while rendering its judgment in case titled "Muhammad Afzal alias Abdullah and others v. The State and others" reported as 2009 SCMR 639 has also expressed almost a similar view in para-12 of its judgment, which is reproduced hereunder for ready reference;
68. "After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be."
69. Hon'ble Supreme Court of Pakistan in its judgment rendered in case titled "Imran Ashraf and 7 others v. The State" reported as 2001 SCMR 424, has also observed;
70. "Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony. Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion."
71. In support of same ratio, further reliance may also be placed on the judgment reported as 2007 SCMR 1427.
5. In view of above, when neither any direct nor any circumstantial evidence is available on face of record, as such, case of prosecution is full of doubts all-around; therefore, accused/appellants have to be extended its benefit.
6. It is well settled that it is not essential at all to place reliance on multiple doubts coupled with multiple grounds to extend the benefit of doubt to an accused, even a single worth reliable doubt is sufficient enough to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of "Tariq Pervaiz v. The State" reported as 1995 SCMR 1345, the Apex Court has held as under; -
72. "That the concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
73. Further reliance is placed on the judgments of apex Court cited as "Daniel boyd (Muslim name Saifullah) v. The State" (1992 SCMR 196), case titled "Ghulam (Qadir and 2 others v. The State" (2008 SCMR 1221) and case titled "Muhammad Zaman v. The State" (2014 SCMR 749).
7. For what has been discussed above, this Court is of the firm view that prosecution has failed to prove its case against appellants namely Zubair Ahmad and Dawood Khan, beyond reasonable doubt, therefore, their conviction cannot be maintained. Resultantly, while extending them benefit of doubt, the instant criminal appeal is allowed and the impugned order/judgment of conviction and sentence dated 02.11.2024 recorded by learned trial Court is set aside and consequently appellants named above are acquitted of the charges levelled against them. They be released forthwith from Jail, if not required in any other case.
8. As far as appeal against acquittal bearing No. 306-M of 2024 and Criminal Revision bearing No. 76-M of 2024, filed by complainant are concerned, since this Court has already allowed the appeal of present appellants, preferred by them against their conviction, therefore, the aforementioned connected matters are also dismissed, having become infructuous.
9. These are reasons for our short order of even date.
74. JK/222/P Order accordingly.