2026 P Cr. L J 675

 2026 P Cr. L J 675

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

Before Sardar Muhammad Ejaz Khan and Chaudhary Khalid

Rasheed, JJ

MUHAMMAD ZUBAIR---Appellant

Versus

The STATE through Advocate General of Azad Jammu and Kashmir,

Muzaffarabad and another---Respondents

Criminal Appeal No. 41 of 2011, decided on 7th November, 2025.

(a) Criminal trial---

----Circumstantial evidence---Conviction---Scope---Conviction could

be based on circumstantial evidence in absence of direct evidence

for the reason that a man could tell a lie but circumstances do not.

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

----S. 302(b)---Azad Jammu and Kashmir Arms and Ammunition Act

(III of 2016), S. 15(2)---Qatl-i-amd, possession of illicit weapon---

Appreciation of evidence---Motive proved---Accused was charged

for committing murder of the cousin of complainant---According to

the prosecution version the motive behind the occurrence was that

the convict obtained loan from a bank, the deceased was his

guarantor but thereafter the deceased was demanding the convict

to pay money and on the day of occurrence the deceased called the

convict---Said fact had also not been denied by the defence during

cross-examination that the accused did not meet convict on the day

of occurrence---Police after registration of the case obtained Call

Data Record of mobile number of convict which revealed that

deceased called convict at about 10 am---Bank record had also been

placed on record which portrayed that the deceased was the

guarantor of the loan obtained by the convict amounting to

Rs.45,00,000/-; from the statement of widow of deceased it had been

amply established that there was a dispute between the deceased

and convict on payment of amount and the convict called the

deceased to meet him as he had arranged the payment---Thus, it

could safely be concluded that motive alleged in the FIR had been

substantiated---Circumstances established that the prosecution had

proved the guilt of the accused---Appeal against conviction was

dismissed, accordingly.

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

S. 302(b)---Azad Jammu and Kashmir Arms and Ammunition Act

(III of 2016), S. 15(2)---Criminal Procedure Code (V of 1898), S. 164---

Qatl-i-amd, possession of illicit weapon---Appreciation of evidence---

Confessional statement of accused---Scope---Accused was charged for

committing murder of the cousin of complainant---Accused got

recorded his statement under S.164, Cr.P.C. on 10.12.2015 before

Sub-Divisional Magistrate whereby he confessed his guilt---Though,

there were procedural irregularities in the statement recorded by

Sub Divisional Magistrate but merely on the basis of such

procedural irregularities the said statement could not be brushed

aside---However, such procedural irregularities could be considered

as a mitigating circumstance for award of lesser punishment

especially in case of circumstantial evidence---Hence, in presence of

confessional statement of the convict/appellant which had been got

recorded by the accused voluntarily on the last date of remand it

could not be observed that the guilt of the accused had not been

established---Confessional statement of an accused was treated as a

weak type of evidence and required corroboration by other

incriminating material---In the instant case, the confessional

statement of the accused was substantiated by other evidence,

hence, was believable and reliable---Circumstances established that

the prosecution had proved the guilt of the accused---Appeal against

conviction was dismissed, accordingly.

2010 PCr.LJ 1567; 2004 PCr.LJ 864; 1999 PCr.LJ 1898 and PLD 1976

Pesh. 135 ref.

2017 YLR 2052 and 2007 SCMR 808 rel.

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

----S. 302(b)---Azad Jammu and Kashmir Arms and Ammunition Act

(III of 2016), S. 15(2)---Qatl-i-amd, possession of illicit weapon---

Appreciation of evidence---Recovery of weapon of offence and

crime empties---Reliance---Accused was charged for committing

murder of the cousin of complainant---In the present case, 30-bore

pistol was recovered on the pointation of accused---Recovery of

weapon of offence i.e. 30 bore pistol on the pointation of the

accused fully linked the accused with the commission of alleged

offence---Police also recovered two crime empties inside the car

which was also in line with prosecution version---As per the report

of Chemical Examiner the recovered crime empties were identified

to have been fired from the weapon of offence which was found in

operating condition with safety features functioning properly---

Thus, the recovery of weapon of offence and the report of Chemical

Examiner also strengthened the case of the prosecution---Recovery

witnesses confirmed the recovery of weapon of offence on the pointation of accused, and crime empties by the police from the

place of occurrence, and remained stable during cross-examination

as the defence failed to shake the credibility of the witnesses of

recovery which was also a supporting evidence of prosecution---

Circumstances established that the prosecution had proved the guilt

of the accused---Appeal against conviction was dismissed,

accordingly.

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

----S. 302(b)---Azad Jammu and Kashmir Arms and Ammunition Act

(III of 2016), S. 15(2)---Qatl-i-amd, possession of illicit weapon---

Appreciation of evidence---Medical evidence supporting the

prosecution case---Accused was charged for committing murder of

the cousin of complainant---As per medical report the death of the

deceased was caused by firearm injuries resulting in extensive

damage of vital organs and large blood vessels causing profuse

bleeding shock---No doubt, as per postmortem report two large and

one small pellets were recovered from the body of the deceased but

merely mentioning pellets in the postmortem report instead of

bullets by the Medical Officer did not mean that the medical

evidence was not in line, nexus and consonance with the

prosecution version because the Medical Officers had never been

considered as arms experts---In that regard only the statement of an

Ammunition Expert could be considered as relevant---Moreover, the

opinion of Medical Officer about number of shots and direction was

not fatal for prosecution---Furthermore, as per report of the

Medical Officer blackening was found around the entrance wounds

which was a proof of the fact that the deceased was done to death

from a near distance which was also in nexus with prosecution

version, thus the medical evidence was also supportive to the

prosecution version---Circumstances established that the

prosecution had proved the guilt of the accused---Appeal against

conviction was dismissed, accordingly.

PLD 2005 SC 484; PLD 2001 SC 107 and 1986 PCr.LJ 1297 rel.

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

----S. 302(b)---Azad Jammu and Kashmir Arms and Ammunition Act

(III of 2016), S. 15(2)---Qatl-i-amd, possession of illicit weapon---

Appreciation of evidence---Last seen evidence---Scope---Accused was

charged for committing murder of the cousin of complainant---Last

seen witness supported the prosecution version and deposed that at

12 p.m. he had seen the deceased in the company of convict/

appellant---Defence failed to shake the credibility of the evidence of

said witness during cross-examination---Widow of deceased got recorded her statement on 08.12.2018 wherein it was stated that her

husband told that he was guarantor of accused and had called him

to come to bazaar as he had arranged the amount---Defence failed to

impeach credibility of evidence of said witness during cross-

examination---Circumstances established that the prosecution had

proved the guilt of the accused---Appeal against conviction was

dismissed, accordingly.

Raja Inamullah Khan for Appellant.

Farooq Minhas for the Complainant.

Muhammad Khalil Ghazi, A.A.G for the State.

Date of hearing: 3rd November, 2025.

VERDICT:

The instant appeal is hereby dismissed.

JUDGMENT

FOREWORD:

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

been directed against the judgment passed by the learned Additional

District Court of Criminal Jurisdiction Dadyal dated 06.10.2021,

whereby accused Zubair son of Sawar Khan ahs been convicted

under section 302-A.P.C and awarded 14 years rigorous imprisonment

with fine/compensation of Rs.20,00,000/- to the legal heirs of the

deceased under section 544-A Cr.P.C., in case of non-payment of

compensation the same was liable to be recovered under the Land

Revenue Act, he was further sentenced to five years simple

imprisonment with fine of Rs.10,000/- under section 15(2)AA vide the

impugned judgment dated 06.10.2021, hence, the captioned appeal.

Facts which culminated into filing of the captioned appeal briefly

stated are, complainant Sajid Mehmood filed a written application

Exh.PA at Police Station Dadyal on 24.11.2015, wherein it was

reported that his cousin Muhammad Akhtar son of Fazal Hussain was

living at Mirpur now a days. Today Muhammad Akhtar came to

Dadyal bazaar and at 4.30 P.M he received information that dead

body of Akhtar is lying in a car No. QZ/648 ICT, at Bakarwal Colony

Balot who has been killed by unknown person(s).

On this report FIR No. 163/2015 Exb.PM was registered at Police

Station Dadyal in the offence under section 302 A.P.C on 24.11.2015.

During investigation the convict appellant was arrested by the police

and on recovery of weapon of offence .30 bore pistol without license

offence under section 15(2)AA was inserted.The police after formal investigation submitted report under

section 173 Cr.P.C before the trial Court on 28.01.2016. The statement

of the accused under section 256-D Cr.P.C. was recorded on

10.12.2015, accused person claimed innocence and refuted the

allegation, whereupon the prosecution was directed to lead evidence

in order to prove the guilt. Upon completion of prosecution evidence,

the statement of accused person was recorded under section 342

Cr.P.C on 24.02.2021, he denied the prosecution evidence, claimed

innocence but opted neither to produce evidence in defence nor to

record his statement on oath under section 240(2), Cr.P.C. At the

conclusion of trial, the learned Court below convicted the accused

person under sections 302 A.P.C., 15(2)AA and awarded him sentence

as mentioned in the preceding paragraph, hence, the captioned

appeal.

STANCE OF THE CONVICT-APPELLANT:

The learned counsel for the convict appellant at the very outset

zealously argued that there is no eye-witness of the occurrence rather

the story set up by the prosecution is based on circumstantial

evidence and in case of circumstantial evidence of the prosecution

has to prove its alleged stance in the manner that one end of the

chain touches neck of the accused and the other to the body of

deceased but in the instant case many links of the chain are invisible.

The learned counsel contended that the motive alleged by the

prosecution has not been substantiated rather the prosecution even

failed to produce any witness regarding the alleged dispute between

deceased and the convict appellant regarding payment of money. The

learned counsel claimed that the detracted so-called confession of the

convict appellant under section 164 Cr.P.C., is not reliable because the

same has not only recorded during detention period but in violation

of the mandatory requirements, he further argued that there are

several procedural defects in the said statement as neither the same

has been handed down by the Magistrate with his handwriting nor

footnote was put by him, the same was also not read over the accused

and no reason for non-recording of the statement by the handwriting

of magistrate himself has been mentioned, hence, not reliable and

shrouded in mystery. The learned counsel also stated that

SDM/Magistrate who recorded the statement of the accused under

section 164 Cr.P.C. has not been cited as witness in the calendar of

witnesses and record is also mute that whether any request was

made by the accused to the concerned Magistrate by oral or in black

and white for recording his statement, thus due to such

illegalities/irregularities the same cannot be made basis for

conviction. The learned counsel further claimed that the medical

evidence is not in line, nexus and consonance with the prosecution story because as per prosecution version the accused fired with .30

bore pistol but as per postmortem report pellets of different sizes

were recovered from the body of the deceased, hence, it has been

proved that .30 bore pistol allegedly recovered from the convict has

not been used in the occurrence. The learned counsel pressed into

service that identification of accused during statement of prosecution

witness Liaqat Ali has not been conducted, thus, it cannot be

imagined that the witness saw the deceased with the accused. The

learned counsel submitted that all the prosecution witnesses are

closed relative of deceased and even wife of deceased PW-5, made

improvements in her Court statement by stated that her husband told

her regarding dispute with the convict on payment of amount. The

learned counsel emphasized that the prosecution did not recover

mobile phone of deceased and from the recovered CDR the convict

has not been clubbed with the commission of the offence. The

learned counsel vehemently claimed that the prosecution has

miserably failed to prove its case beyond shadow of reasonable doubt

rather the prosecution story is highly suspicious but the Court below

failed to appreciate the relevant ticklish evidence in its real

perspective and wrongly convicted the accused, thus requested for

acceptance of the instant appeal. He placed his reliance on the

following case laws:-

1. 2009 SCR 432

2. 2010 PCr.LJ 1567

3. 2004 PCr.LJ SC AJ&K 864

4. 2022 SCR 1541

5. 1999 PCr.LJ 1898

6. PLJ 1987 Quetta 96 and

7. PLD 1976 Pesh. 135

REFUTATION OF THE RESPONDENTS:

The learned counsel for the complainant has filed written

arguments which are made part of the file, hence, need not to be

reiterated for the sake of brevity.

The learned A.A.G vehemently argued that the prosecution has

proved its case by producing cogent, convincing and trustworthy

circumstantial evidence in shape of recovery of weapon of offence on

the pointation of accused, statement of the accused person recorded

under section 164 Cr.P.C medical evidence and the last seen evidence,

hence, the Court below accurately convicted the accused, thus

requested for the dismissal of the appeal. We have heard the learned counsel for the parties, gone through

the record of the case with utmost care and caution.

COURT OBSERVATIONS AND RELEVANT LAW:

As per the contents of FIR this is a blind murder case and all the

prosecution story rests upon the circumstantial evidence. The

superior Courts have held in plethora of judgments that conviction

can be based on circumstantial evidence in absence of direct

evidence for the reason that a man can tell a lie but circumstances do

not. In the case of circumstantial evidence the Courts have to take

extraordinary care and caution before relying on it. The conviction

can be based on circumstantial evidence and even a maximum

punishment can be awarded when it excludes all hypothesis of

innocence, all the facts established are consistent with the hypothesis

of guilt of accused through an unbroken, indispensable and

interweaved chain of facts that one end touches the body of deceased

and other to the neck of the accused but if the circumstantial

evidence is not of that standard and quality it would be highly

unjustified to rely upon the same.

Though in the instant case there is no eye-witness of the

occurrence and the whole prosecution story depends upon the

circumstantial evidence but there is a sufficient material/evidence to

believe and conclude that the convict appellant has committed the

alleged occurrence. In the written application filed by the

complainant no one was nominated which fact excludes the

hypothesis that the convict has been involved in the case with mala

fide intention or with some ulterior motive because if the prosecution

had any malice intention it should nominate the accused in the FIR.

According to the prosecution version the motive behind the

occurrence was, the convict obtained loan from a bank, the deceased

was his guarantor but thereafter the deceased was demanding the

convict to pay money and on the day of occurrence the deceased

called the convict. This fact has also not been denied by the defence

during cross-examination that the accused did not meet convict on

the day of occurrence. The police after registration of the case

obtained CDR of mobile number of convict which reveals that

deceased called convict at about 10 A.M. The bank record has also

been placed on record which portrays that the deceased was the

guarantor of the loan obtained by the convict amounting to Rs.

4500,000/- from the statement of Samina widow of deceased it has

been amply established that there was a dispute between the

deceased and convict on payment of amount and the convict called

the deceased to meet him as he has arranged the payment, thus it can safely be concluded that motive alleged in the FIR has been

substantiated.

The accused also got recorded his statement under section 164

Cr.P.C. on 10.12.2015 before SDM Dadyal whereby he confessed his

guilt. Though there are procedural irregularities in the statement

recorded by SDM Dadyal but merely on the basis of such procedural

irregularities the said statement cannot be brushed aside. Reliance

may be placed on 2017 YLR 2052, wherein at page 2068 it has been

observed as under:

We are also satisfied that confessions of both accused appear to

have been made voluntarily, without any inducement or

coercion. Mere fact that there were some irregularities in

recording of confession would not warrant disregarding the

same.

However, such procedural irregularities can be considered as a

mitigating circumstance for award of lesser punishment especially in

case of circumstantial evidence, hence, in presence of confession

statement of the convict appellant which has been got recorded by

the accused voluntarily on the last date of remand it cannot be

observed that the guilty of the accused has not established has been

held in 2007 SCMR 808 wherein at page 812 it has been opined as

under:

The mere fact that confessional statement was made on the last day

of physical remand would not be indicative of any doubt

regarding its voluntariness because petitioner was aware of the

fact that he would not be again given in the custody of police

and was being sent to the judicial custody.

It is also pertinent to mark that distracted confessional statement

of an accused is treated as a weak type of evidence and is required

corroboration by other incriminating material and in the instant case

the distracted confessional statement of the accused is substantiated

by other evidence, hence, is believable and reliable. Reliance may be

placed on 1992 SCR 366 wherein at page 368 has been held as

follows:-

It is settled principle of law that a retracted confession can be

acted upon against its maker if the same is materially

corroborated by other independent evidence.

The recovery of weapon of offence i.e., .30 bore pistol on the

pointation of the accused fully linked the accused with the

commission of alleged offence. The police also recovered two crime

empties inside the car vide Ex.Ph which is also in line with prosecution version and as per the report of chemical examiner the

recovered crime empties were identified to have been fired from the

weapon of offence which was found in operating condition with

safety features functioning properly, thus the recovery of weapon of

offence and the report of chemical examiner also strengthen the case

of prosecution. The recovery witnesses confirmed the recovery of

weapon of offence on the pointation of accused, crime empties by the

police from the place of occurrence and remained stable during

cross-examination as the defence miserably failed to shake the

credibility to the witnesses of recovery which is also a supporting

evidence of prosecution.

As per medical report the death of the deceased was caused by

firearm injuries due to extensive damage of vital organs and large

blood vessels by causing profuse bleeding shock. No doubt, as per

postmortem report two large and one small pellets were covered

from the body of the deceased but merely mentioning pellets in the

postmortem report instead of bullets by the doctor it cannot be

opined that the medical evidence is not in line, nexus and

consonance with the prosecution version because the doctors have

never been considered as an arm expert and in this regard only the

statement of an ammunition expert can be considered as relevant.

Moreover, the opinion of doctor about number of shots and direction

even not fatal for prosecution as held in PLD 2005 SC 484 wherein at

page 491 it has been observed as follows:-

The statement of doctor to the effect that the injuries were the

result of single shot, being only an opinion which may or may

not be correct and would not be sufficient to discard the direct

evidence and suggest the non-presence of eye-witnesses at the

spot. The conflict of medical evidence with ocular account in

respect of number and nature of injuries, may be relevant to

ascertain the role of an individual accused in the occurrence

but this is not a valid ground to disbelieve the eye-witnesses

and exclude their evidence from consideration.

Furthermore, as per report of the doctor blackening was found

around the entrance wounds which is a proof of the fact that the

deceased was done to death within a near distance which is also in

nexus with prosecution version, thus the medical evidence is also

supportive to the prosecution version, however, such report of the

doctor may only be considered as a mitigating circumstances while

determining the quantum of sentence.

The objection raised by the learned counsel for the appellant that

direction of wound negated the prosecution version is also not

sustainable because entry wound from left back side in a sitting position on the neck can be ejected from the left cheek which is very

natural position in case of fire from the alleged distance and position.

A fire with of .12 bore from short distance may cause of a bigger and

huge diagram/hole in the entrance, hence, it cannot be observed that

the weapon used was .12 bore rifle instead of .30 bore pistol as

alleged by the defence merely for the reaon that doctor used word

pellet instead of bullet because he was not a firearm expert as has

been held in PLD 2001 SC 107 wherein at page 115 it has been

observed as follows:-

Moreover as far as doctor is concerned he has no authority in law

to express his opinion as to which weapon was used as held in

1986 PCr.LJ 1297.

The recoveries are fully established from the statements of

recovery witnesses and the safe custody of recovered items is also

substantiated. Liaqat Ali last seen witness supported the prosecution

version and deposed that at 12 p.m. he saw the deceased in the

company of convict appellant, the defence failed to shake the

credibility of his evidence during cross-examination. Samina widow

of deceased got recorded her statement on 08.12.2018 wherein it was

stated that her husband told that he is guarantor of accused Akhtar

and has called him to come to Dadyal as he has arranged the amount.

The defence also failed to impeach credibility of her evidence during

cross-examination.

After going through the prosecution evidence and record of the

case we are of the opinion that the prosecution has proved the guilt

of the accused to the hilt accused, hence, he has rightly been

convicted by the Court below and the reasons recorded in support of

the impugned judgment are also justified. The Court below was also

justified while awarding lesser punishment to the accused for the

mitigating circumstances mentioned in the impugned judgment. No

doubt, several mitigating circumstances have been found in the

instant case for award of lesser punishment but the Court below has

already taken lenient view while awarding lesser punishment thus,

no further leniency in the quantum of sentence would be justified,

hence, we are not inclined to uphold the sentence awarded by the

Court blow.

DISPOSAL:

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

convict appellant is hereby dropped for having no essence.

JK/60/AJK.HC Appeal dismissed.