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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI
(F (p5)
JAIL PETITION NO. 403 OF 2018
(On appeal against the judgment dated 24.06,2010
passed by the Lahore High Court, Lahore in
Criminal Appeal No. 280-J/2005 and Murder
Reference No. 423/2005)
Kashif Ali 
Kalu
Petitioner
VERSUS
The State and another
Respondents
For the Petitioner: 
Mr. Dii Muhammad Khan Alizai, ASC
Syed Rifaqat Hussain Shah, AOR
For the State: 
Mr. Ahmed Raza Gillani, Addl. P.G.
Date of Hearing: 06.06.2022
JUDGMENT
SAYVED MAZAHAR ALl AKBAR NAOVI. J.- Petitioner was tried by the
learned Additional Sessions Judge, Gujranwala, pursuant to a case
registered vide FIR No. 403 dated 25.06.2004 under Sections 302/34 PPC
at Police Station Model Town, Gujranwala, for committing murder of Mst.
Sakeena Bibi, mother-in-law of the complainant. The learned Trial Court
vide its judgment dated 30.04.2005 convicted the petitioner under Section
302(b) PPC and sentenced him to death. He was also directed to pay
Compensation amounting to Rs.100,000/- to the legal heirs of the
deceased or in default whereof to further undergo St for six months. He
was also convicted under Section 394 PPC and was sentenced to seven
years RI and to pay a fine of Rs.5000/- or in default whereof to further
undergo six months SI. He was further convicted under Section 449 PPC
and was sentenced to five years RI and to pay a fine of Rs.3000/- or in
default whereof to further undergo six months SI. All sentences of
Jail Petition No. 403/2018
imprisonment were ordered to run concurrently. In appeal, the learned
High Court while maintaining the conviction of the petitioner under
Section 302(b) PPC, altered the sentence of death into imprisonment for
life. However, all other sentences including the order for the payment of
compensation to the legal heirs of deceased was maintained on the same
terms and conditions.
2. The prosecution story as given in the impugned judgment
reads as under:-
"In brief, the facts of the prosecution case as narrated in the FIR
are that on 24.062004 at about 6.30 pm complainant Abdul
Waheed (PW-1) received telephonic information that some
occurrence had taken place in the house of his mother in law.
When he reached at the place of occurrence, he found that his
mother in law Mst. Sakina Bibi was lying in serious injured
condition, who told him that at 6.30 pm when she was present in
the house alone, a boy who told his name Ali called from outside
the door and demanded ice. On opening the door, she saw that
Ali alongwith one unknown person was present. Ali came inside
the house and when she entered in the room, he caught hold her
arm and snatched two karras. Jhumkas (ear rings), finger ring,
locket and cash from her purse upon which she asked Ali that why
he is doing so, he picked up Churri lying near and gave
consecutive blows of churri and fled away after bolting the door
from outside. On hue and cry of Mst. Sakina Bibi, people of the
Mohalla opened the door and in the meanwhile complainant also
reached at the spot. Mst. Sakina Bibi (deceased) was brought to
the local hospital and after first aid she was referred to Mayo
hospital, Lahore."
3.
After completion of investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court. In order to prove its case the
prosecution produced as many as 11 witnesses. In his statement recorded
under Section 342 Cr.P.C, the petitioner pleaded his innocence and refuted
all the allegations leveled against him. However, he did not make his
statement on oath under Section 340(2) Cr.P.0 in disproof of allegations
leveled against him. He also did not produce any evidence in his defence.
4.
At the very outset, learned counsel for the petitioner argued
that there are material contradictions and discrepancies in the prosecution
evidence, which have not been taken into consideration by the courts
elow. Contends that there was an inordinate delay of about 18 hours in
JaI Petition No. 403/2018 
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lodging the FIR, which has not been explained. Contends that it was an
unseen occurrence and there is no eyewitness of the occurrence.
Contends that the statement of the complainant is based upon hearsay
and he did not disclose the name of the person who informed him through
telephone about the occurrence. Contends that initially, brother of the
petitioner namely Ali was nominated as an accused but later on the
present petitioner was substituted as an accused, which speaks volume on
the conduct of the complainant. Contends that the dying declaration was
neither signed by the Investigating Officer nor the Investigating Officer
was produced in evidence, therefore, the same cannot be used against the
petitioner. Contends that recoveries of churri and golden ornaments are
also inconsequential, therefore, the petitioner deserves to be acquitted of
the charge.
S. On our specific query as to whether he supports the
impugned judgment, the learned Law Officer very frankly stated that on
the basis of evidence available on the record he does not support the
impugned judgment.
6. We have heard learned counsel for the parties at some
length and have perused the evidence available on record.
The prosecution case mainly hinges upon (i) dying
declaration of Mst. Sakina Bibi, and (ii) recovery of alleged snatched
jewellery and churri at the instance of the petitioner. It is an admitted
position that the complainant is neither an eyewitness nor a resident of
the place of occurrence. As per the prosecution story, the complainant on
receiving a call that a dacoity has been committed in his mother-in-law's
house reached at the place of occurrence. However, he did not disclose
the name of the person from whom he had received a call. The FIR was
registered with an inordinate delay of about 18 hours for which no
plausible explanation has been given. The same makes the whole
prosecution story doubtful especially when initially brother of the
petitioner namely Ali was nominated in the FIR but subsequently the
present petitioner was substituted as an accused. At page 69 of the paper
Jail Petition No. 403/2028 
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book, there is available a statement of the complainant which was
exhibited in evidence as Ex-PI. In the said statement the complainant
stated that the deceased was discharged from hospital on 08.07.2004 and
thereafter she was being treated privately in her house and succumbed to
the injuries at home but he did not mention the date on which she
succumbed to the injuries. The rapat in this regard was registered on
23.072004, which shows that the deceased might have died on the said
date. The record is also silent as to how and by whom she was being
treated privately in her residence. So far as dying declaration of Mst.
Sakeena Bibi is concerned, we have noticed that the alleged dying
declaration as recorded by the investigating officer is without backing of
law established by the superior Courts from time to time and such cannot
be given any credence when the time and place where it was recorded are
not disclosed which makes it highly improbable to rely upon. The
Investigating Officer, who recorded the dying declaration, has also not
been produced in court. The record also suggests that after the
occurrence, Mst. Sakina Bibi was taken to hospital and police was also
present there. The learned High Court has noted that the police had
moved an application on 27.06.2004 regarding her condition and to record
her statement but despite that it did not record the statement at the first
instance i.e. on 24.06.2004 and then on 27.06.2004. The weapon of
offence i.e. churri was not sent to the office of Chemical Examiner,
therefore, the recovery is inconsequential and the same cannot be used
against the petitioner. As far as the alleged recovery of golden ornaments
on the pointation of the petitioner is concerned, the same were taken into
possession by the police officials namely Muhammad Shafique, LHC (PW-
6) and Sultan Ahmed. However, the statement of said Sultan Ahmed could
not be recorded as he was given up by the prosecution at the time of trial.
Besides, no independent witness of the locality was associated in this
process. In these circumstances, it would not be safe to rely upon the
recovery of golden ornaments to sustain conviction of the petitioner.
These are the dents, which are so grave and sensational that they create a
doubt in the authenticity of the prosecution case, which cannot be
Jail Petition No. 40312018 
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ignored. These dents are squarely hampering the very fabric of the
prosecution case and ultimately the salient features of the case, therefore,
it can safely be concluded that the prosecution has miserably failed to
substantiate its case, which is basic requirement to sustain conviction of
an accused in case of capital punishment. It is settled law that a single
circumstance creating reasonable doubt in a prudent mind about the guilt
of accused makes him entitled to its benefits, not as a matter of grace and
concession but as a matter of right. The conviction must be based on
unimpeachable, trustworthy and reliable evidence Any doubt arising in
prosecution case is to be resolved in favour of the accused.
7, For what has been discussed above, this petition is
converted into appeal, allowed and the impugned judgment is set aside.
The petitioner is acquitted of the charge. He shall be released from jail
forthwith unless detained/required in any other case. The above are the
detailed reasons of our short order of e
Islamabad, the 
6th of June, 2022
Approved For Reporting
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