2026 P Cr. L J 295

 2026 P Cr. L J 295

[Balochistan]

Before Iqbal Ahmed Kasi and Muhammad Ayub Khan Tareen, JJ

MUHAMMAD IBRAHIM and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 525, 545 and Murder Reference No. 18 of 2022,

decided on 7th August, 2025.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 394, 365 & 34---Qatl-i-amd, voluntarily causing hurt

while committing or attempting to commit robbery, kidnapping or

abducting a person with the intent to secretly and wrongfully

confine, common intention---Appreciation of evidence---Benefit of

doubt---Last seen evidence---Scope---Accused were charged for

committing murder of the son of complainant after kidnapping him-

--Complainant testified that on the fateful day his sons accompanied

their friend; that at 11:00 am, they dropped one of the sons of

complainant and deceased then rode motorbike again, which was

seen by SA at the time of going back---Though brother of deceased

testified that on the day of his brother's disappearance, he went

back with the accused, however, the said motorbike had not been

recovered from the possession of the appellants, nor had the

prosecution produced SA ---As such, the evidence of last seen of

brother of deceased had not been supported by any corroborative

evidence; therefore, the same alone could not serve as the basis for

convicting the accused---Appeal against conviction was allowed, in

circumstances.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 394, 365 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40--

-Qatl-i-amd, voluntarily causing hurt while committing or

attempting to commit robbery, kidnapping or abducting a person

with the intent to secretly and wrongfully confine, common

intention---Appreciation of evidence---Benefit of doubt---Recovery of

dead body of the deceased at the instance of accused doubtful---

Accused were charged for committing murder of the son of

complainant after his kidnapping---Record showed that the body

was recovered from an abandoned well on 26 June, 2019---At that

time, the appellants were neither arrested in the instant case nor

was any statement or confession recorded by the Investigation

Officer---Appellants were detained only in the instant case on 26th June 2019---About a month later, on 30th July, 2019, the Investigating

Officer recorded the alleged extrajudicial confession, nearly 34 days

after the initial find---Regarding the recovery of dead body of

deceased based on the appellants' indication, the alleged recovery

did not take place at the accused persons' pointing out because it

had already been recovered on 26th June, 2019, much before their

formal arrest in the instant case---Additionally, the alleged

extrajudicial confession was recorded on 30th July 2019---As such,

the mere extrajudicial confession not followed by any discovery was

not admissible and a dead body already discovered did not fall

within the ambit of Art.40 of Qanun-e-Shahadat, 1984---Further

review of the record showed that the accused was once arrested in

this case by Inspector, on 15th September, 2018---After a thorough

investigation, appellant was sent to judicial custody on 28th

September 2018, without the recovery of the body or a confession---

Therefore, the subsequent recovery based on the accused's

indication raised doubt---Appeal against conviction was allowed, in

circumstances.

Muhammad Khurshid v. The State PLD 1963 SC 157; Khushi

Muhammad alias Nato v. The State PLD 1986 SC 146 and Muhammad

Mushtaq v. Mustansar Hussain and others 2016 SCMR 2123 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---Benefit of any doubt that arises in a

prudent mind must be given to the accused, not as a favor but as a

right.

Jamil Shah for Appellant No. 1 (in Criminal Appeal No. 525 of 2022).

Ms. Kalsoom Langove for Appellant No. 2 (in Criminal Appeal No.

525 of 2022).

Abdul Kareem Malghani, State Counsel for the State (in Criminal

Appeal No. 525 of 2022).

Ahsan Rafiq Rana for the Complainant (in Criminal Appeal No. 525

of 2022).

Ms. Kalsoom Langove for Appellant (in Criminal Appeal No. 545 of

2022).

Abdul Kareem Malghani, State Counsel for the State (in Criminal

Appeal No. 545 of 2022).

Ahsan Rafiq Rana for the Complainant (in Criminal Appeal No. 545

of 2022).

Abdul Kareem Malghani, State Counsel for the State (in Murder

Reference No. 18 of 2022) Jamil Shah for Convict No. 1 (in Murder Reference No. 18 of 2022).

Ms. Kalsoom Langove for Convict No. 2 (in Murder Reference No. 18

of 2022).

Ahsan Rafiq Rana for the Complainant (in Murder Reference No. 18

of 2022).

Date of hearing: 25th June, 2025.

JUDGMENT

MUHAMMAD AYUB KHAN TAREEN, J.--- This common judgment

shall dispose of Criminal Appeal Nos. 525/2022, 545/2022 and Murder

Reference No. 18/2022, as both the appeals are directed against the

judgment dated 31st October 2022, passed by the learned Additional

Sessions Judge-I, Sariab Division, Quetta in sessions case No. 58/2020,

Whereby the appellants Muhammad Ibraheem son of Muhammad

Ismail and Manzoor Ahmed son of Muhammad Meer were convicted

and sentenced in the following terms:

1. Under sections 302 (b) and 34 P.P.C to suffer capital punishment of

death as Tazir each for committing Qatl-i-Amd of deceased

Muhammad Ishaq son of Abdul Razzaq, and to pay

compensation Rs.500,000/- each to the legal heirs of deceased as

provided under section 544-A, Cr.P.C, in default, they shall suffer

simple imprisonment for six months each;

2. under section 365 P.P.C to suffer imprisonment for seven years

each with a fine of Rs.20,000/ each, in default thereof, to further

suffer simple imprisonment for six months each;

3. under section 394, P.P.C to suffer imprisonment for ten years each

and to pay fine of Rs.20,000/- each, in default thereof to further

suffer simple imprisonment for six months each;

All the sentences to run concurrently with the benefit of section 382-

B, Cr.P.C.

The trial court has sent the Murder Reference No. 18/2022 for

confirmation of the sentence of death recorded against the appellants

(convicts).

2. Facts of the case are that pursuant to the report (Ex: P/1-A) of

complainant Abdul Razzaq (PW-1), a criminal case, vide FIR No.

151/2018 (Ex: P/10-A), dated 12th September 2018, under sections 365

and 34 P.P.C was registered at P.S. Kechi Baig, Quetta, wherein he

alleged that on 6th September 2018, his sons Muhammad Ishaq and

Abdul Kareem set out on a motorbike to visit the house of Muhammad

Ishaq s friend Manzoor Mengal at Western bypass Mian Ghundi; at

about 11:00 a.m. Muhammad Ishaq dropped Abdul Kareem at home and turned back on his motorbike with Manzoor Mengal. Muhammad

Ishaq did not come home in the night and the complainant thought

that he was in his factory, but on the next day when Muhammad Ishaq

did not come home, the complainant became worried and contacted

Manzoor Mengal, who informed that he had not seen Muhammad

Ishaq for two days. Complainant and his relatives tried their best to

find whereabouts of Muhammad Ishaq, but he was not found; hence,

he got registered the instant FIR against Manzoor Ahmed with the

allegation of kidnapping Muhammad Ishaq.

3. After registration of the case, incomplete challan was submitted

and the appellant Manzoor Mengal obtained bail from the court and

trial commence. Meanwhile, the appellant Manzoor Ahmed was

arrested in another criminal case, vide FIR No.43/2019, registered at

P.S. Shaheed Manzoor Tareen Quetta; during investigation in that FIR,

both the appellants Manzoor Mengal and Muhammad Ibraheem made

disclosure that they had kidnapped Muhammad Ishaq and committed

his murder; on such disclosure dead body of Muhammad Ishaq was

recovered from a well; hence, section 302 P.P.C was inserted in the

challan (Ex: P/10-D). The learned Additional Sessions Judge-I Sariab

Division took cognizance of the case, framed charge and readover the

same to the appellants, to which they pleaded not guilty and claimed

trial.

To substantiate accusation, the prosecution produced and examined

the following evidence:

PW-1 Abdul Razzaq (complainant), who produced his application

(Ex: P/1-A);

PW-2 Rasheed Khan (cousin of complainant), who is witness of

identification memo of deceased Muhammad Ishaq s dead body

(Ex: P/2-A);

PW-3 Abdul Kareem (brother of deceased) is the circumstantial

witness;

PW-4 Munir Ahmed son of Ghulam Farooq (circumstantial witness);

PW-5 Sarfaraz Ahmed son of Noor Ahmed, who was present with

PW-1 and PW-2 at the time of recovery of deceased Muhammad

Ishaq s dead body from well;

PW-6 Kaleemullah ASI is circumstantial witness;

PW-7 Dr. Aisha Faiz, Police Surgeon, who examined the dead body of

deceased Muhammad Ishaq and issued post mortem certificate

(Ex: P/7-A); PW-8 Muhammad Maqbool ASI is the witness of recovery memo (Ex:

P/8-A) of documents pertaining to FIR No.43/2019, P.S. Manzoor

Shaheed (Article P/1 to P/10), disclosure memo of accused

Manzoor Ahmed (Ex: P/8-B);

PW-9 Umar Daraz Shah, IP is the first investigation officer, who

produced challan (Ex: P/9-A);

PW-10 Muhammad Javed, IP is the second investigation officer, who

produced FIR (Ex: P/10 A), site plan (Ex: P/10-B), Merg report (Ex:

P/10-C-1/4 to P/10-C-4/4) and supplementary challan (Ex:P/10-D);

PW-11 Abdul Razzaq son of Abdul Kareem (circumstantial witness);

PW-12 Nasrullah son of Muhammad Ali (circumstantial witness);

On closure of prosecution evidence, the learned trial court recorded

the statements of appellants under section 342, Cr.P.C, wherein they

disputed the prosecution story and pleaded their innocence; however,

they did not opt to record their statements on oath provided under

section 340(2) Cr.P.C, nor produced any witness in defence.

4. On completion of trial, the learned trial court (Additional Sessions

Judge-I Sariab Division, Quetta), vide impugned judgment dated 31st

October 2022, found the appellants guilty, as such, convicted and

sentenced them as mentioned above. Hence, these appeals with the

prayer to set aside the impugned judgment passed by the trial court

and to acquit the appellants of the charge. Similarly, the learned trial

court sent Murder Reference for confirmation of death penalty

awarded to the appellants (convicts).

5. Learned counsel for the appellants argued that the FIR was lodged

after a significant delay, and no satisfactory explanation has been

provided; therefore, deliberation and consultation cannot be ruled out.

However, the learned trial court did not consider this delay when

deciding the case. They further contended that the prosecution's case

relies on the joint extrajudicial confession of the appellants, which is

inadmissible evidence; nonetheless, the learned trial court erred in

law by relying on inadmissible evidence when sentencing the

appellants. They also argued that during recoveries, the investigation

officer did not call private witnesses to support the recoveries,

violating the provisions of section 103 of the Cr. P.C. Lastly, they

requested that due to material contradictions and the cumulative

effects of legal and factual issues in the case, by extending the benefit

of doubt, the judgment of the trial court should be set aside, and the

appellants should be acquitted.

Conversely, the learned counsel for the complainant was assisted by

the learned State Counsel, who argued that the complainant had adequately explained the delay by filing a report soon after the

disappearance of his son; therefore, the delay has caused no prejudice

to the appellants. They further argued that the deceased's dead body

had been recovered based on the appellants pointation. Such

pointation falls under Article 40 of the Qanun-e-Shahadat Order 1984,

which is admissible as evidence. The dead body has been duly

identified, and thus the trial court correctly convicted the appellants.

They lastly requested that the trial court's speaking judgment be

upheld.

6. We have heard the learned counsel for the appellants, the learned

State counsel, and the learned counsel for the complainant, and we

have reviewed the record with their valuable assistance.

7. Brief facts of the case as given in FIR No. 151/2018 dated 12th

September 2018, reported by Abdul Razzaq at Police Station Kechi Baig

Quetta, states that the complainant's son, Muhammad Ishaq, aged 17

or 18 years, working as a laborer at a cement factory on Sibi Road,

Quetta, went on 6th September 2018 around that time with his

younger brother Abdul Kareem on his motorbike to meet his friend

Manzoor Mengal at his home located at Western Bypass, Mian Ghundi.

Around 11:00 AM, Muhammad Ishaq, along with his friend Manzoor

Mengal, dropped Abdul Kareem at home, and they both returned on

his son's motorbike. Both were seen going by Shakeel Ahmad, a

neighbor. When he did not return home that night, it was presumed he

might be at the factory. When he still had not returned the next night,

they started searching and found he had not gone to the factory. They

approached Manzoor at his home, but did not find him there. Later,

they revisited Manzoor's house and met him. He said he had not seen

Ishaq for three or four days. On 12th September 2018, a complaint was

filed against Manzoor and his associates, suspecting they had

kidnapped Muhammad Ishaq for an unknown reason.

8. Admittedly, Muhammad Ishaq's murder went un-witnessed, and

the case depends on circumstantial evidence. We recognize that cases

relying on such evidence require special care and caution. Therefore,

while re-examining the evidence, we have taken every possible

precaution to prevent and eliminate any false conclusions, as there is

always a risk of fabricating circumstantial evidence. As the apex court

has held, circumstantial evidence is not always reliable, and

depending on it entirely can be risky. The evidence must form a chain

of events, with one end connected to the deceased and the other to the

accused. If this link is missing, the entire chain collapses. No

conviction can be based solely on such circumstantial evidence.

9. The entire structure of the prosecution's case rests on the

evidence of the last seen. The apex court in the case of Jaffar Ali v. The State (1998 SCMR 2669) held that although last seen evidence is not

enough by itself to prove the crime, it can be enough when connecting

the accused to the crime involves making assumptions or when there

are reasonable possibilities that someone else committed the offense.

However, if the chain of facts is such that no reasonable inference can

be drawn except that the accused committed the crime after the victim

was last seen with him, then, without a reasonable explanation from

the accused, this evidence can be used to convict him.

Complainant Abdul Razzaq (PW-1) testified that on 6th September

2018, Muhammad Ishaq and Abdul Kareem accompanied Manzoor. At

11:00 AM, they dropped Abdul Kareem. Ishaq and Manzoor then rode

Ishaq's motorbike again, which was seen by Shakeel Ahmed at the time

going back. Though Abdul Kareem testified that on the day of his

brother Muhammad Ishaq's disappearance, he went back with the

accused Manzoor, however, the said motorbike has not been

recovered from the possession of the appellants, nor has the

prosecution produced Shakeel Ahmed. As such, the evidence of last

seen of Abdul Kareem has not been supported by any corroborative

evidence; therefore, the same alone cannot serve as the basis for

convicting the accused.

10. Regarding the recovery of the deceased Ishaq's body at the

instance of the appellants is concerned, the record shows that the body

was recovered from an abandoned well on 26th June 2019. At that

time, the appellants were neither arrested in the instant case nor was

any statement or confession recorded by the investigation officer. The

appellants were detained only in the instant case on 26th June 2019.

About a month later, on 30th July 2019, the investigation officer

recorded the alleged extrajudicial confession, nearly 34 days after the

initial find. The record also indicates that on 26th June 2019, the

investigation officer took possession of photocopies of FIR No. 43/2019

from the investigating officer of that case. It is a well-established legal

principle that each case must be decided based on its facts established

by evidence led therein. The Honourable Supreme Court of Pakistan in

the cases of Muhammad Khurshid v. The State (PLD 1963 SC 157) and

Khushi Muhammad alias Nato v. The State (PLD 1986 SC 146) has held

that:

The evidence does not make findings arrived at on the evidence

before the court, in, one case evidence of that fact in another

case. Each case is to be judge upon its own facts established by

evidence led therein.

Regarding the recovery of Muhammad Ishaq's dead body based on

the appellants' indication, as mentioned above, the alleged recovery

did not take place at the accused persons' pointing out because it had already been recovered on 26th June 2019, much before their formal

arrest in the instant case. Additionally, the alleged extrajudicial

confession was recorded on 30th July 2019. As such, the mere

extrajudicial confession not followed by any discovery is not

admissible, and a dead body already discovered does not fall within

the ambit of Article 40 of Qanun-e-Shahadat Order, 1984. Reliance in

this regard is placed on the case of Muhammad Mushtaq v. Mustansar

Hussain and others (2016 SCMR 2123), where it was held:

2. the prosecution had relied upon only two pieces of evidence and

they were last-seen evidence and recovery of the dead body. The

alleged recovery of the dead body was admittedly a joint

recovery which is inadmissible in evidence. Apart from that the

alleged recovery of the dead body had not been effected at the

pointing out of the private respondents because the dead body

had already been recovered much before the arrest of the said

respondents .

11. Further review of the record shows that the accused Manzoor

Ahmad was once arrested in this case by PW-9 Umar Daraz, Inspector,

on 15th September 2018. After a thorough investigation, he was sent to

judicial custody on 28th September 2018, without the recovery of the

body or a confession. Therefore, the subsequent recovery based on the

accused's indication raises doubt. As a well-established principle of

criminal justice, the benefit of any doubt that arises in a prudent mind

must be given to the accused, not as a favor but as a right.

12. It is the fundamental principle of criminal law that the

prosecution must prove its case beyond a reasonable doubt, and any

doubt arising from this must be in favor of the accused. Based on the

above discussion, we have significant doubts about the guilt of the

appellants.

Therefore, while extending the benefit of the doubt to the

appellants, the appeals are allowed, and the impugned judgment dated

31st October 2022, passed by the learned Additional Sessions Judge-I,

Sariab Division Quetta in sessions case No. 58/2020 is set aside. The

appellants Muhammad Ibraheem son of Muhammad Ismail and

Manzoor Ahmed son of Muhammad Meer are acquitted of the charge

in FIR No. 151/2018, P.S. Kechi Baig. They are in custody, ordered to be

released forthwith unless they are wanted in any other custody case.

As a result, the Murder Reference No. 18/2022 is answered in

negative.

JK/87/Bal. Appeals allowed.