2026 P Cr. L J 563

 2026 P Cr. L J 563

[High Court (AJ&K) (Shariat Appellate Bench)]

Before Sardar Muhammad Ejaz Khan and Chaudhary Khalid

Rasheed, JJ

AURANGZEB SIDDIQUI---Appellant

Versus

The STATE through Advocate General of Azad Jammu and Kashmir,

Muzaffarabad---Respondent

Criminal Appeal No. 25 and Reference No. 75 of 1999, decided on 23rd

October, 2025.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account

proved---Accused was charged for committing murder of the father

of complainant by firing---Prosecution in order to prove the guilt of

the accused produced three eye-witnesses of the occurrence---Said

witnesses were unanimous on the point that on the day of

occurrence when the deceased was doing ablution on a stream in

front of the houseof HMM , convict-appellant reached, by targeting

the deceased with an intention to kill fired directly with a 12 bore

rifle which hit him at the left side of his neck who succumbed to his

injury and died on the spot---Presence of the eye-witnesses was

natural as it was established from the record that prosecution

witnesses and the deceased had the relationship of master and

disciple and were going to offer Zohar prayer---Defence despite

lengthy and hectic cross-examination failed to shake the intrinsic

value of their evidence or extricate anything which might be termed

as harmful to the prosecution version, thus after deep appreciation

of testimony of the eye-witnesses, it could safely be concluded that

the prosecution version was proved through the direct and reliable

evidence of the eye-witnesses who were found aadil during

purgation---Presence of accused, deceased and eye-witnesses on the

place of occurrence had never been assailed rather admitted as had

not been challenged during the process of cross-examination being

the only tool to extract truth---Place, time and manner of occurrence

were fully established from the statements of eye-witnesses and

those factors also remained unchallenged during cross-examination-

--Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S.265-D---Qatl-i-

amd---Appreciation of evidence---Plea of alibi taken by accused Scope---Accused was charged for committing murder of the father of

complainant by firing---Plea of alibi could be taken at initial stage and

an accused could not be allowed to take any such plea at belated

stage---Thus, it was enjoined upon the convict-appellant to take such

plea at the time of his statement under S.265-D Cr.P.C.---Moreover,

under Art.121 of Qanun-e-Shahadat even a defence plea taken by the

accused was liable to be proved to that extent otherwise no benefit

could be claimed from it---In the instant case even no defence plea

had been taken against a case of direct evidence hence, the

prosecution version remained unchallenged and beyond suspicion---

Furthermore, the accused was nominated in the promptly lodged FIR,

thus, the element of substitution did not rise---Appeal against

conviction was dismissed, in circumstances.

(c) Azad Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of

weapon of offence and crime empty---Reliance---Scope---Accused

was charged for committing murder of the father of complainant by

firing---Recovery of weapon of offence on the pointation of accused

had been substantiated from the statements of recovery witnesses

who also remained stable during cross-examination and the defence

failed to shake their credibility---Forensic Science Laboratory report

showed that the angle of striking was same on C&T; the dimension

of the dip was same on C&T; identical breach face marks were on

C&T; cut mark inside the dip was same on C&T; dent mark inside the

dip was same on C&T---Thus, the recovery of weapon of offence on

the instance of convict was also established---Defence counsel

alleged that in the remand form produced by Investigating Agency

before the Court for obtaining remand, it was mentioned that till

01.08.1997 the recovery of weapon of offence was not affected,

hence the alleged recovery on 31.07.1997 was maneuvered---

However, merely on an irregularity or mistake in the dates on the

remand form and the recovery memo, the recovery of weapon of

offence could not be declared as fictitious particularly in case of

direct evidence where nisab of Shahadat was also available---

Moreover, when the Chemical Examiner had reported that the

recovered empty from the place of occurrence was fired from the

recovered weapon of offence---Appeal against conviction was

dismissed, in circumstances.

(d) Azad Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical

evidence---Scope---Accused was charged for committing murder of

the father of complainant by firing---Medial evidence corroborated

the prosecution version that deceased died due to firearm injury, so the Court below rightly convicted the accused---It was alleged by

defence counsel that medical evidence did not support the ocular

evidence of the prosecution, however this plea had got no plausible

essence because as per prosecution version the accused fired with

12 bore rifle when the deceased was performing ablution---Hence, in

such a situation receiving injuries at neck and arm was not strange

rather natural because single fire with 12 bore rifle might cause hit

of pellets at different parts of body---Merely non-mentioning of

injury of the deceased at his arm in the FIR or in the statements of

prosecution witnesses was not fatal because witnesses in such panic

situation were not expected to minutely observe all the wounds of

the body---Moreover, witnesses were not confronted with reference

to the medical reports---Under Art.140 of Qanun-e- Shahadat only

the discrepancies which were contradicted by referring to relevant

document/evidence to the witness could be considered as a

contradiction, so it could safely be concluded that medical evidence

was also in line, nexus and consonance with the ocular evidence

whereas in the injury form prepared by police the injury on the

hand of deceased had also been mentioned---Appeal against

conviction was dismissed, in circumstances.

(e) Criminal trial---

----Ocular account---Scope---Where the ocular account is found

satisfactory, the same does not need further corroboration.

2007 PCr.LJ 1757 rel.

Tahir Aziz Khan for Appellant.

Raja Sajjad Ahmed Khan for the Complainant.

A.A.G. for the State.

Date of hearing: 22nd October, 2025.

VERDICT:

The instant appeal is hereby dropped and the reference is answered

in affirmative.

JUDGMENT

FOREWORD:

CHAUDHARY KHALID RASHEED, J.---The supra titled appeal has

been directed against the judgment passed by the learned District

Court of Criminal Jurisdiction, Muzaffarabad dated 28.07.1999, qua

accused Aurangzeb Siddiqui son of Muhammad Younus has been

convicted under section 302-APC and was awarded death sentence as Qisas whereas the reference has been sent by the trial Court for

confirmation of death sentence of the convict.

Facts which culminated into filing of the captioned appeals and

reference briefly stated are, complainant Mian Muhammad Hassan

filed a written application Exh.PA at Police Station Kahori

Muzaffarabad on 30.07.1997, wherein it was reported that his father

Mian Fazal Ellahi resident of Village Batkarah Tehsil Balakot District

Mansehra used to visit Sarian, Doba, Sehri, Bhairi and Datura for the

purpose of spiritual guidance and had also contracted marriage from

village Sarian constituency No.2 Muzaffarabad 24 years ago. His father

used to visit said areas for two to three months every year hence, was

on routine visit of the said areas in this year for last one month and

was residing in the house of Haji Muhammad Miskeen resident of of

Baisri for two/three days. Today on 30.07.1997 at 2.30PM he was

conducting ablution for Zohar Prayer in front of house of Haji

Muhammad Miskeen in Nala Lohidandi, in the meantime Aurangzeb

Siddique while armed with 12 bore rifle reached there by targeting

father of the complainant fired which hit the deceased at his neck who

succumbed to his injuries on the spot. The occurrence was witnessed

by Haji Muhammad Miskeen, Nazir Ahmed, Gulzaman caste Gujjar

resident of Sairi Bhairi. The motive behind the occurrence illuminated

that the accused was against the master and disciple relationship.

On this report an FIR No.37/1997 was registered at Police Station

Kahori in offences under section 302 on 30.07.1997. During

investigation section 13/20/65-AA was inserted.

The police after formal investigation submitted report under section

173 Cr.P.C. before the trial Court on 27.09.1997. The statement of the

accused under section 265-D Cr.PC. was recorded on 13.11.1997,

accused person claimed innocence and refuted the allegations,

whereupon the prosecution was directed to lead evidence in order to

prove the guilt. Upon completion of prosecution evidence, the

statement of accused person recorded under section 342 Cr.P.C. on

30.08.1999, he denied the prosecution evidence, claimed innocence but

opted neither to produce evidence in defence nor to record his

statement. At the conclusion of trial, the learned Court below

convicted the accused person under section 302 APC and sentenced

him to death as Qisas, hence, the captioned appeal as well as

reference.

STANCE OF THE CONVICT-APPELLANT:

The learned counsel for the convict appellant at the very outset

zealously argued that as the statement of the convict appellant under

section 340(2) Cr.P.C. has not been recorded which vitiates the entire trial of the case, thus, the case is liable to be remanded to the trial

Court for completion of the trial in accordance with law. He

vehemently argued that the accused has not committed the alleged

occurrence rather has been substituted with mala fide intention to

save the original culprit. The learned counsel stated that the

prosecution story has been manipulated as it is established from the

statements of alleged eye-witnesses that they were not present at the

scene of occurrence. The learned counsel claimed that there was no

animosity existed between the deceased and the convict appellant.

The learned counsel averred that the prosecution alleged a specific

motive in the FIR but failed to substantiate the same through

evidence whereas the post-mortem report and injury form

contradicts the ocular evidence because as per medical reports the

deceased also received injury at his arm but the statements of eye-

witnesses are silent in this regard. The learned counsel further

submitted that the Court below has relied upon the suggestions put to

the prosecution witnesses by the defence counsel which are against

the principle of criminal justice because prosecution is always

required and expected to stand on its own legs and has to prove its

case beyond shadow of reasonable doubt, thus any suggestion given

by the defence counsel cannot be pondered as confession or made

basis for conviction of an accused. The learned counsel further

submitted that as per the contents of the statement of complainant he

was informed by one Muhammad Suleman, however, Muhammad

Suleman has not been produced as witness of the occurrence, thus

the prosecution withheld a material evidence which is always

considered a strong mitigating circumstance. The learned counsel

also argued that the police officer who took the body for post-mortem

report and the witnesses of recovery of blood stained clothes of the

deceased have also not been produced in support of the prosecution

alleged stance, he further pressed into service that the recovery of

weapon of offence is fictitious because the same was shown to have

been recovered on 31.07.1997 whereas on the remand form dated

01.08.1997 the police mentioned that recovery is yet to be made. The

learned counsel further argued that as per the prosecution version

the empty of the 12 bore rifle was recovered from the place of

occurrence but the same was not sent for chemical examination in

time rather was sent after alleged recovery of weapon of offence

which also appears to be maneuvering by the investigating agency.

He submitted that as the prosecution has withheld material evidence

thus, adverse inference is liable to be drawn that if the same was

produced that goes against the prosecution version. He also

contended that as the documentary evidence did not support ocular

evidence and both contradict each other, hence a serious doubt is

created in the prosecution version, therefore the benefit of the same was liable to be extended in favour of the accused which would result

into his acquittal but the Court below failed to appreciate the

relevant ticklish evidence in its true perspective by ignoring the

major contradictions in the prosecution evidence awarded the

extreme penalty of Qisas which is not entails to be sustained. The

learned counsel placed his reliance on 2016 SCR 373, 2024 PCr.LJ 455

and 2024 PCr.LJ 873.

REFUTATION OF THE RESPONDENTS:

The learned counsel for the complainant supported the impugned

judgment on all counts by submitting that the allegation levelled

against the convict-appellant has been substantiated through

convincing and trustworthy evidence whereas the minor

discrepancies pointed out by the learned counsel for the convict-

appellant are natural, hence are liable to be ignored, thus requested

for dismissal of the instant appeal.

The learned AAG adopted the arguments advanced by the learned

counsel for the complainant.

We have heard the learned counsel for the parties, gone through the

record of the case with utmost care and caution.

COURT OBSERVATIONS AND RELEAVANT LAW:

According to FIR, convict appellant fired with 12 bore rifle by

targeting deceased which landed at the left side of his neck who

succumbed to his injuries and expired on spot. As per prosecution

version, the occurrence was witnessed by Haji Muhammad Miskeen,

Nazir Ahmed and Gul Zaman. The prosecution in order to prove the

guilt of the accused produced Haji Muhammad Miskeen, Gul Zaman

and Nazir Ahmed all the three eye-witnesses of the occurrence. The

witnesses are unanimous on the point that on the day of occurrence

when the deceased was doing ablution on a stream in front of the

house of Haji Muhammad Miskeen, convict-appellant Aurangzeb

Siddiqui reached, by targeting the deceased with an intention to kill

fired directly with a 12 bore rifle which hit him at the left side of his

neck who succumbed to his injury and died on the spot. The presence

of the eye-witnesses is natural as it is established from the record that

prosecution witnesses and the deceased had the relationship of master

and disciple and were going to offer Zohar prayer. The defence despite

lengthy and hectic cross-examination failed to shake the intrinsic

value of their evidence or extricate anything which may be termed as

harmful to the prosecution version, thus after deep appreciation of

testimony of the eye-witnesses, it can safely be concluded that the

prosecution version is proved through the direct and reliable evidence

of the eye-witnesses who were found aadil during purgation. The presence of accused, deceased and eye-witnesses on the place of

occurrence has never been assailed rather admitted as has not been

challenged during the process of cross-examination being the only tool

to extract truth. The place, time and manner of occurrence are fully

established from the statements of eye-witnesses and these factors also

remained unchallenged during cross-examination.

Though the learned counsel for the convict-appellant tried to

establish that the convict has not committed the alleged occurrence

rather has been involved in the case with mala fide intention but he

could not even suggest the name of any other person who in his

opinion was the real culprit. He also did not take any such plea in the

statement recorded under section 265-D Cr.P.C. nor produced any

evidence in defence to establish his stance. The superior Courts have

held constantly that the plea of alibi can be taken at initial stage and

an accused cannot be allowed to take any such plea at belated stage,

thus it was enjoined upon the convict-appellant to take such plea at the

time of his statement under section 265-D Cr.P.C. Moreover it is also

pertinent to mention that under Article 121 of Qanun-e-Shahadat even

a defence plea taken by the accused is liable to be proved to that

extent otherwise no benefit can be claimed from it but in the instant

case even no defence plea has been taken against a case of direct

evidence hence, the prosecution version remained unchallenged and

beyond suspicion. Furthermore, the accused is nominated in the

promptly lodged FIR, thus, the element of substitution does not rise,

hence the argument is repelled.

The recovery of weapon of offence on the pointation of accused vide

Exh.PE has been substantiated from the statements of recovery

witnesses who also remained stable during cross-examination and the

defence failed to shake their credibility. The Forensic Science

Laboratory Lahore report reads as under:-

(i) The angle of striking is same on C&T.

(ii) The dimension of the dip is same on C&T.

(iii) Identical breach face marks on C&T.

(iv) Cut mark inside the dip in same on C&T.

(v) Dent mark inside the dip in same on C&T.

Thus, the recovery of weapon of offence on the instance of convict is

also established. The argument advanced by the learned counsel for

the convict-appellant that in the remand form produced by

investigating agency before the court for obtaining remand, it is

mentioned that till 01.08.1997 the recovery of weapon of offence was

not affected, hence the alleged recovery on 31.07.1997 is maneuvered is concerned, it may be stated that merely on an irregularity or

mistake in the dates on the remand form and the recovery memo, the

recovery of weapon of offence cannot be declared as fictitious

particularly in case of direct evidence where nisab of Shahadat is also

available, moreover, when the chemical examiner has reported that

the recovered empty from the place of occurrence was fired from the

recovered weapon of offence.

The medical evidence also corroborated the prosecution version

that deceased died due to firearm injury, so the Court below rightly

convicted the accused. The argument advanced by the learned counsel

for the convict-appellant that medical evidence did not support the

ocular evidence of the prosecution has also got no plausible essence

because as per prosecution version the accused fired with 12 bore rifle

when the deceased was ablution, hence in such a situation receiving

injuries at neck and arm is not strange rather natural because single

fire with 12 bore rifle may cause hit of pellets at different parts of

body and merely non-mentioning of injury of the deceased at his arm

in the FIR or in the statements of prosecution witnesses is not fatal

because witnesses in such panic situation are not expected to minutely

observe all the wounds of the body, moreover, they were not

confronted with reference to the medical reports. Under Article 140 of

Qanun-e-Shahadat Order only the discrepancies which were

contradicted by referring to relevant document/evidence to the

witness can be considered as a contradiction, so it can safely be

concluded that medical evidence is also in line, nexus and consonance

with the ocular evidence whereas in the injury form prepared by

police the injury on the hand of deceased has also been mentioned.

The argument advanced by the learned counsel for the convict-

appellant that recovery of crime empty from the place of occurrence is

unbelievable because as per statements of eye-witnesses the accused

after firing fled away from the place of occurrence and a local made 12

bore rifle did not eject the empty, hence the recovery is doubtful has

also got no water to carry because neither the eye-witnesses deposed

in their statements that the accused did not eject the empty nor such

stance was even taken or established during cross-examination by the

defence counsel, hence in such a situation it cannot be doubted or

ruled out that the accused after firing ejected the empty on the place of

occurrence which was recovered by the investigating agency as the

investigating agency if intended to maneuver the recovery may

mention that the empty was recovered from the weapon of offence.

It is an axiomatic precept of law that where the ocular evidence is

found satisfactory, the same did not need further corroboration. Reliance may be placed on 2007 PCr.LJ 1757, wherein at page 1773 it

has been observed as under:

"It therefore follows that where ocular evidence is reliable and

satisfactory, conviction in law can be recorded on such evidence

alone without any further corroboration."

In the present case as stated earlier the ocular evidence has been

found trustworthy, convincing and natural which does not require any

further corroboration for conviction of the accused person rather the

direct evidence gets further support from ample circumstantial

evidence, hence, the sentence awarded by the Court below is justified

and entails to be sustained.

The main argument advanced by the learned counsel for the convict

appellant that statement of the convict appellant under section 340(2)

Cr.P.C. has not been recorded, hence, the case is liable to be remanded

to the trial Court, has got no legal essence because the statement of the

accused under section 342 Cr.P.C. was recorded on 30.08.1999 whereas

insertion of section 340(2) in the Code of Criminal Procedure in

Pakistan was adapted in the Azad Jammu and Kashmir through Act

XIII of 2001 dated 12.12.2001, hence, at the stage of recording

statement of convict appellant under section 342 Cr.P.C. said provision

of law was not holding the field to the extent of territory of Azad

Jammu and Kashmir but even then while recording statement under

section 342 Cr.P.C. the accused was asked that whether he wants to say

anything more, he denied, therefore, the argument is repelled.

DISPOSAL:

The crux and epitome of the above debate is, the appeal filed by

convict appellant is hereby dropped for having no essence whereas the

reference sent by the trial Court is answered in affirmative.

JK/55/AJK(H.C) Appeal dismissed.