Criminal Jail Appeal No.S-11 of 2019


Appellants        :               1).Ghulam Nabi s/o Manthar Suhundro

                                      2). Manthar s/o Abdul Nabi Suhundro

                                      3). Ahmed s/o Din Muhammad Suhundro

Through Mr.Rafique Ahmed K.Abro, Advocate


The State:                      Through Mr.Aitbar Ali Bullo, D.P.G.








                                      Mr.Javed Ahmed Soomro, Advocate for legal heirs of deceased.



Date of hearing:            09-02-2023 & 20-02-2023 

Date of decision:           06-03-2023




ZULFIQAR ALI SANGI, J:- The instant criminal jail appeal is directed against the judgment dated 12.02.2019, passed by learned Sessions Judge, Jacobabad, in Sessions Case No.393/2016 (Re. St. Vs. Ghulam Nabi and others), emanating from FIR bearing Crime No.59/2016, for offence punishable U/S.302, 404, 34 PPC registered with Police Station, C/Section Thull, whereby the appellants have been convicted for an offence punishable U/S.302 (b) PPC r/w Section 34 PPC and sentenced to suffer rigorous imprisonment for life as “Tazir” with compensation of Rs.200,000/- each to be paid to the legal heirs of deceased and in default thereof, to suffer simple imprisonment for six months each. Besides, appellant Manthar was further convicted for offence punishable U/S.404 PPC and sentenced to suffer R.I for the period of three years and to pay fine of Rs.20,000/- and in default thereof, to undergo S.I for one month. The conviction and sentence awarded to appellant Manthar shall run concurrently and they were given benefit of Section 382-B Cr.PC.


2.       Succinctly, the facts of case as depicted in FIR lodged by complainant Chatto Khan on 13.04.2016, at 1400 hours, are to the effect that he resided with his brother Badaruddin, nephew Jafar Ali and son Inayatullah in village Hamal Suhundro. On 08.04.2016, he  alongwith above named PWs and other inmates were available in their house, in the meantime, at about 09.00 P.M, his grand-daughter Sumia aged about 9/10 years went out of the house and then heard her cries whereupon they all went out of the house and saw on torch light four unknown persons duly armed with T.T pistols who while laying Sumia down were strangulating her throat and on seeing coming towards them, two of the accused while pointing their pistols asked them to remain silent to which they remained mum and within their sight accused put off ear-rings eight in numbers by cutting her ears with blade while one of the accused caused brick-bat blows on her head, thereafter, all the four accused fled away towards northern side. The complainant and his witnesses then saw and found Sumia dead having strangulation marks on her neck and injury on left side of her forehead with scars on both ears which were bleeding. After intimating the incident to police, the complainant shifted the dead body of deceased to Civil Hospital, Jacobabad, where he got conducted her postmortem through the police. After funeral ritual, the complainant came at police station and got registered the FIR against the accused.


3.   On completion of investigation, the police submitted final report under section 173 Cr.PC against present appellants/accused before the Court of concerned Judicial Magistrate. Thereafter, the formal charge was framed against present appellants/accused by learned trial Court, to which they pleaded not guilty and claimed trial.

4.    In order to establish accusation against the appellants/accused, the prosecution examined in all seven witnesses i.e PW-01 Complainant Chatto Khan, PW-02 Eye-witnesses Badaruddin, PW-03 Dr.Romana Khanzadi, PW-04 Mashir Kousar Nizai, PW-05 Tapedar Imdad Ali Kandrani, PW-06 Mashir PC Khamiso Khan and PW-07 ASI/SIO Jafar Ali Buriro, who all produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.

5.   The present appellants/accused in their statements recorded in terms of Section 342 Cr.PC, denied the allegations leveled against them by pleading their innocence stating therein that they have been implicated by the complainant and his witnesses due to dispute over the landed property. However, they neither examined themselves on oath in disproof of the charge nor led any evidence in their defence.

6.      The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants/accused vide impugned judgment, as discussed above.

7.      Per learned defence counsel, there are material contradictions in the evidence of prosecution witnesses which have shattered veracity of their evidence; that the complainant and PWs being related inter-se are interested witnesses and their evidence having no credibility cannot be relied upon without independent corroboration; that there is conflict in between the ocular and medical account; that the prosecution has failed to prove the motive; that the weapons allegedly secured from appellants were indeed foisted upon them at the behest of complainant party just to strength this case. Summing up his contentions, the learned defence counsel submitted that present appellants have falsely been arraigned in the present case on account of dispute over the landed property. He thus concluded that the case of prosecution is doubtful and the appellants are entitled to their acquittal in circumstances of the case.

8.       In rebuttal to above contentions, learned D.P.G for the State who is assisted by learned counsel for legal heirs of the deceased submits that all the witnesses have fully supported the case of prosecution and no any major contradiction has been noticed in their evidence; that an innocent minor girl has been done to death brutally at the hands of appellants/accused and such type of incidents have affected the society at large; that the ocular evidence is consistent with medical as well circumstantial account; that recovery of weapons so also the ear-rings secured from the possession of present appellants/accused has fully supported the case of prosecution, in that situation, the learned trial Court finding the appellants/accused guilty of the offence has rightly convicted and sentenced them by way of impugned judgment which does not call for any interference by this Court, hence, the appeal filed by them being meritless is liable to its dismissal.

9.       I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on record with their able assistance.

10.     The ruthless and ghastly murder of a minor girl aged about 9/10 years by four persons by way of strangulation and cutting her ears with blade for snatching ear-rings and causing head injuries is a crime of heinous nature but the frightful nature of crime should not blur the eyes of justice, allowing emotions triggered by the horrifying nature of the offence to prejudge the accused. The rule is that the cases are to be decided on the basis of evidence and evidence alone and not on the basis of sentiments and emotions. The gruesome, heinous or brutal nature of the offence may be relevant at the stage of awarding suitable punishment after conviction; but it is totally irrelevant at the stage of appraising or re-appraising the evidence available on record to determine guilt of the accused, as possibility of an innocent person having been wrongly involved in cases of such nature cannot be ruled out. An accused person is presumed to be innocent till the time he is proved guilty beyond reasonable doubt, and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond reasonable doubt on the basis of legally admissible, confidence inspiring, trustworthy and reliable. No matter how heinous the crime, the constitutional guarantee of fair trial under Article 10-A of Constitution of Islamic Republic of Pakistan, 1973, cannot be taken away from the accused. It is, therefore, duty of the Court to assess the probative value (weight) of every piece of evidence available on record in accordance with the settled principles of appreciation of evidence, in a dispassionate, systematic and structured manner without being influenced by the nature of allegations. Any tendency to strain or stretch or haphazardly appreciate evidence to reach a desired or popular decision in a case must be scrupulously avoided or else highly deleterious results seriously affecting proper administration of criminal justice will follow, as has been held by the Honourable Supreme Court of Pakistan in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600). It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by the Honourable Supreme Court of Pakistan that "In the criminal trial it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution." The Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377) held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."

11.     Turning to the case in hand, as per evidence brought on record by the prosecution it reflects that the alleged incident took place on 08-04-2016, at 09.00 P.M (night) and the FIR was registered on       13-04 2016, at 1400 hours with delay of 06 days and on perusal of entire evidence, no plausible explanation is found. The complainant and PWs are stated to be eye-witnesses of the incident and the police station is situated at distance of 5 to 6 KMs from their houses or from the place of incident, such delay makes the case as doubtful and would suggest that the incident was not witnessed by any of the prosecution witness. From perusal of the evidence produced by prosecution it reflects that after the incident, law came into motion, all the formalities viz. preparation of Danistnama, Mashirnama of inspection of dead body and the injuries and postmortem were also conducted on the referral letter of police even then the FIR was not registered. The Honourable Supreme Court of Pakistan in case of Pervaiz Khan and another v. The State (2022 SCMR 393) has held as under:

There is another circumstance that according to prosecution the occurrence took place at 7 p.m. whereas the FIR was chalked out at 11:35 p.m. Although complainant claimed that he arrived in the hospital within one or one and a half hour but even then the report was lodged in the hospital at 11:15 p.m. There is no explanation as to why after reaching the hospital when both the deceased had succumbed to the injuries why they had not reported to the police and where this time was consumed, obviously this time was consumed for deliberation and consultation. This delay could not be explained by learned counsel for the complainant…..”

12.     The names of appellants do not transpire in the FIR nor complainant party gave their descriptions/Hulia in the FIR. The names of appellants were first time introduced by PWs Badaruddin and Jafar Ali in their 161 Cr.PC statements, recorded on 18-04-2016 with the delay of ten days and then 164 Cr.PC statements were recorded on 02-05-2016 with the delay of 25 days and the delay in recording such statements, they had tried to explain that due to incident the mother of deceased was shocked and was taken to Karachi by these witnesses for her treatment and on their return they informed the police and the complainant about the identity/names of the appellants. Though they tried to explain such delay but when they appeared in witness box they themselves had admitted such fact to be incorrect. The complainant during cross-examination stated that both the witnesses took the mother of the deceased for treatment towards Karachi on 09-04-2016 and till then they were present there. PW Badaruddin also admitted such fact that he took the mother of deceased to Karachi for treatment on 09-04-2016 and he further admitted that he had not disclosed the names of accused persons to the complainant on the night of incident or immediate after the incident. The reliance is placed upon cases of Dr. Khalid Moin and others v. The State and others (2006 Pak. Cr. L. J 629) and Baqar Shah v. The State (2018 YLR 1422). The Honourable Supreme Court also in the case of Muhammad Asif v. State (2017 SCMR 486) has held as under:-

“15.   In a case of close relationship between the complainant party / deceased and the accused, motive for murder crime assumes considerable importance because no nearer and dearer would like to kill his close relative without strong impulse by taking him into a boiling point wherefrom, the retraction is impossible but in the case in hand the motive set up was not only week and feeble but also not established because the girl (daughter) of the complainant in whose presence the quarrel took place between the deceased and the appellant, was not produced at the trial. Again there is another doubtful aspect of the case because Nazar Hussain (PW 9), the father of the deceased who according to the FIR was stated to be guarding the dead body, on arrival of the local police to the post, however, in the very examination in chief at page/20 of the paper book he has squarely stated that he joined the investigation after one month and one day after the occurrence. There is a long line of authorities / precedents of this court and the High Courts that even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon.

13.     The prosecution withheld the evidence of other eye-witness Jafar Ali by filling such given up statement dated: 13-09-2018. The complainant deposed that he went for identification parade of accused persons before the Magistrate, however, he again stated that no such identification parade was held. Even otherwise, it is an admitted position that no identification parade was held and if for the sake of convenience it is to be presumed that identification parade was held before the Magistrate then all these factors related to the description/Hulia of accused persons are to be the prime consideration. The Identification Parade can only commence, once suspects matching the description in the crime report or in the statements of witnesses under section 161, Cr.PC. Matching the description in the first information report is the starting point towards identification of unknown accused. It is, therefore, uncertain how the appellants were lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. Reliance can be placed on cases of State/Government of Sindh v. Sobharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v. State of A.P. (AIR 1983 SC 367). Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956). In the present case, no Identification parade was held, however, the appellants were identified by complainant party before learned trial Court at the time of recording their evidence. The identification of an accused person by eye-witnesses before the trial Court during a trial is generally considered to be quite unsafe because before such identification at learned trial Court during trial, the eye-witnesses get many opportunities to see accused persons appearing before the Court in connection with their remand, distribution of copies of statement of prosecution witnesses recorded under section 161, Cr.PC, framing of the charge and recording of statements of other prosecution witnesses. Even in such identification before the trial Court during trial it is imperative that a witness must point towards a particular accused person present before trial Court and must also specify the role allegedly played by him in the incident in issue. The unsafe nature of identification of an accused person before trial Court during trial has already been discussed by the Honourable Supreme Court of Pakistan in cases of Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), Muhammad Afzal alias Abdullah and another v. The State and others (2009 SCMR 436), Nazir Ahmad v. Muhammad Iqbal (2011 SCMR 527), Shafqat Mehmood and others v. The State (2011 SCMR 537), Ghulam Shabbir Ahmed and another v. The State (2011 SCMR 683), Azhar Mehmood and others v. The State (2017 SCMR 135) and recently in case of Kanwar Anwaar Ali (PLD 2019 SC 488). Thus, based upon the particular facts and the circumstances of the present case, I hold the identification of the appellants before the trial Court as unreliable and not free from the doubts.

14.     Admittedly, it was night time incident and the source of identification of accused persons was based on a torch light but the said torch was not taken by the investigation officer during course of investigation nor was the same produced before learned trial Court at the time of recording evidence of the prosecution witnesses. The Honourable Apex Courts have held such source of identification as doubtful and non-production of such source also cut the roots of the prosecution case. The Hon’ble Supreme Court of Pakistan in case of Sardar Bibi and others v. Munir Ahmed and other (2017 SCMR 344) has held as under:-

“…. The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case.”

                 The Hon’ble Supreme Court of Pakistan in another case of Khalil v. The State (2017 SCMR 960) has held as under:-      


                   In the case of Abdul Rahim v. Ali Bux and 4 others, (2017 P Crl. L J 228), Division Bench of this Court has held as under:-

“11. Record further reveals that the incident is alleged to have taken place in dark hours of the night and Complainant and PWs/eye-witnesses seen and identified the culprits/Respondents on 7 torch lights, but the said Torches were not produced in evidence, since the source of identification of the culprits is shown as torchlight, which as per verdicts of Superior Courts is weak type of source and unsafe to be relied upon. In this regard reference is made to the case of Hakim Ali, reported in 1996 PCr.LJ 231 (DB-Kar), and case of Aurangzeb, reported in 2008 PSC (Cr.).

15.     The complainant and PW Badaruddin have made dishonest improvements in the case. Complainant in his FIR stated that two accused persons brandished T.T pistols upon them and made them silent. The accused persons ravished 08 ear-rings from baby Sumia by using blade while another accused hit half of brick on her head. The complainant has not named accused persons in his FIR, however, in evidence he stated that names of accused persons and stated that PWs informed him about the names of accused persons. PW Badaruddin at the time of recording his statement under section 164 Cr.PC did not state even a single word in respect of the role that who ravished the ear-rings from the ears of baby Sumia. It is observed that before the Magistrate who recorded 164 Cr.PC statements. This witness was cross-examined by accused persons and during cross-examination he stated that when he and other PW Jaffar Ali appeared at the police station they saw accused persons were already available there and they were available four days prior to their appearance too creates very serious doubt in the case of prosecution.  

16.     The recovery of articles including blood stained soil and the blade which was used in commission of offence etc; from the place of vardat on 13-04-2016 after 06 days of the incident and the recovered crime weapon viz pistols from appellants Manthar and Ghulam Nabi being circumstantial evidence also cannot connect the accused with commission of murder in case once the identity of accused has not been proved in this case. Mere sending the crime weapons and the empties recovered from the place of vardat to the Chemical Examiner would not serve the purpose of prosecution to prove its case against the accused in absence of strong oral/direct or other circumstantial evidence with unbroken chain. Even otherwise, recovery of weapon of offence is only a corroborative piece of evidence and in absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case. The Honourable Supreme Court of Pakistan in case of Saifullah v. State (1985 SCMR 410), has held as under:-

“Considering all the facts on the record we are of the view that it was an unwitnessed occurrence... We have therefore no option but to exclude the testimony of the aforementioned two witnesses from consideration with the result that no evidence is left on the record to connect the accused with the crime in question, as the recovery of the blood-stained knife, even if believed, could only be used as evidence corroborating the testimony of the eye-witnesses, if any. But since evidence of the eye-witnesses in this case has been excluded this recovery is hardly of any use.”


17.     The alleged recovery of 08 ear-rings on the pointation of appellant Manthar is also doubtful. Mashir Kausar Niazi deposed in respect of the said recovery that on 28-04-2016, at 1645 hours, accused Manthar produced 08 gold ear-rings from the rubbish (dhair of chhainas) lying in front of main gate of his house before ASI Jaffar Ali in his presence and co-mashir Abdul Ghafoor. The said gold ear-rings were stained with blood and mud, wrapped in black color plastic panni, for which accused disclosed that those were the same which were robbed by them from the ears of deceased baby Sumia. As per the evidence of P.C Khamiso Khan, accused Manthar and Ghulam Nabi were arrested on 27-04-2016 and on next day, recovery of ear-rings were shown. PW Badaruddin during his cross-examination conducted by the accused persons at the time of recording his statement under section 164 Cr.PC has admitted that when they appeared at police station, the accused were already in the custody and they were in the custody since 04 days before their appearance at the police station. Even otherwise, in absence of any description of the stolen property given in FIR, or in supplementary statement of the complainant or any witness recorded under section 161 Cr.PC, prior to the alleged recovery, it cannot be said with certainty the recovered property is that which was allegedly stolen. Reliance is placed on cases of Noor Ullah v. State, (2012 YLR 2618); Changez v. Shahid, (2018 MLD 1136) and Tariq Hussain v. State, 2018 MLD 1573. It is observed that no goldsmith was examined by the prosecution to prove that he sold out said ear-rings to the complainant nor any receipt was produced by the prosecution. Even, there is no evidence that when these ear-rings were purchased by the complainant. Reliance is placed on case of Naveed Asghar and 2 others V. The State (PLD 2021 SC 600). Though, the ear-rings were sent for chemical examination and the report states that same were stained with human blood even then it is not sufficient to prove the same to show connectivity of the appellants with commission of offence of murder in absence of matching the group of blood of the deceased with the blood available on ear-rings. Reliance is placed upon case of Irfan Ali v. State (2015 SCMR 840), Khalid Javed v. The State (2003 SCMR 1419) and Hamid Nadeem v. State (2011 SCMR 1233).

18.     It is an established principle of law that an accused person is presumed to be innocent until and unless he is proved guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It has also been held by the Superior Courts that the conviction must be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): “Avert punishments (hudood) when there are doubts” and “Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment.” The Hon’ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH)  in the case of Ayub Masih v. State (PLD 2002 SC-1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in the recent Judgment in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC-600). It is also settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right, as has been held in case of Tariq Pervez v. The State (1995 SCMR-1345), wherein the Honourable Supreme Court of Pakistan has held as under:-

"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 doubt. If there is any 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".

19.     The sequel of above discussion is that the learned trial Court has committed illegality while recording conviction/sentence erroneously, holding the present appellants as guilty of the alleged offence. Consequently, the instant criminal jail appeal is allowed; the conviction and sentence awarded to the appellants by learned trial Court vide impugned judgment are set-aside and they are acquitted of the charged offence. Office is directed to issue release writ, directing the concerned jail authority to release the appellants forthwith in the present case if they are not required in any other custody case.

20.     The instant criminal jail appeal is disposed of accordingly.