' FAROOQ ALI CHANNA , J.---The appellant has filed this criminal appeal against the judgment dated 27-10-2010, passed in Sessions Case No,799 of 2009, outcome of F.I.R. No,52 of 2009, Police Station Malir Cantt., Karachi under section 302, P.P.C., whereby the learned Sessions Judge, Malir convicted the appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life with fine of Rs,50,000, in default thereof to suffer R.I for two years more. The benefit under section 382-B, Cr.P.C.
Was extended in favour of the appellant.
2. Precisely the facts giving rise to file the present appeal are that on 12-5-2009 Complainant Syed Shabir, Hussain Rizvi lodged F.I.R., alleging therein inter alia that his daughter Sadaf Rizvi along with her husband Ammar Yasir Ali and 3 children was residing with him. On 11-5-2009 at 9-45 p.m. His daughter took his Car No,AEW-147, left the house to meet her in-laws. After some time appellant Ammar Yasir Ali came at house and informed complainant that he has received a telephonic message that dead body of Sadaf Rizvi is lying in car. Thereafter the appellant Ammar Yasir Ali proceeded towards the place of incident, whereas the complainant went to Jinnah Hospital, identified dead body of his daughter having fire shot injury on her forehead. The complainant therefore, lodged F.I.R. Without expressing suspicion against any person. During investigation, the Investigating Officer recorded further statement of complainant, wherein he showed suspicion of committing murder of his daughter against his son-in-law Ammar Yasir Ali, therefore, the Investigating Officer arrested Ammar Yasir Ali recovered pistol used in the murder on his pointation, after completing the investigation, investigation officer submitted the challan. The trial Court after 'recording evidence of prosecution witnesses, statement of appellant under section 342, Cr.P.C. And affording an opportunity of hearing to the counsel of both the sides, came to conclusion that he appellant was guilty of murder of deceased Sadaf Rizvi, therefore convicted and sentenced the appellant as stated hereinabove.
3. Learned counsel for the appellant has contended that absolutely there was no iota of evidence against the appellant. Admittedly it was an unwitnessed incident and the complainant has involved the appellant suspiciously on the basis of a footage seen by him after six months of incident. Learned counsel has further contended that video cassette received by the Investigating Officer was viewed in open Court and after watching the video cassette the Investigating Officer during cross-examination has admitted that nothing was visible and identifiable in the video.
Learned counsel has further contended that other evidence was the alleged recovery of crime weapon on the pointation of appellant, the same is unbelievable as the alleged recovery was effected after six months after the incident, which does not appeal to a prudent person that a guilty person will keep the crime weapon safely in his house, despite having ample opportunities to destroy strong piece of evidence against him. Learned counsel has further contended that the Investigating Officer also registered. Separate F.I.R. Under section 13-E of the Arms Ordinance, however, the trial Court has acquitted the appellant from the said charge. Learned counsel has further contended that although the findings of trial Court acquitting the appellant of charge under section 13-E of Arms Ordinance are not binding upon another trial Court however conflicting findings of two competent trial Courts regarding the recovery of pistol under same mashirnama creates a doubt, as such the prosecution has failed to establish the case against the appellant without any shadow of reasonable doubt rendering the appellant liable to be acquitted.
4. Conversely the learned A.P.-G. Has argued that the prosecution story is believeable, the appellant has alleged no enmity with the complainant resulting his false involvement in the heinous case of murder. Learned A.P.-G. Has further contended that the pistol recovered on the pointation of appellant and empties recovered from the place of incident were sent to Forensic Expert, who has sent his report in positive, which is strong piece of evidence connecting the appellant with the murder of deceased Sadaf. Rizvi. Learned A.P.-G. Has further contended that the prosecution beside the above evidence has also succeeded to establish the case against the appellant on the basis of circumstantial evidence without any shadow of reasonable doubt, hence the appeal is liable to be dismissed.
5. The learned trial Court has recorded the conviction forming the base of evidence of complainant, recovery of pistol used in crime on the pointation of appellant matching the empty bullets recovered from the place of incident, the message and telephonic calls made by appellant to deceased one hour prior to the incident and C.D of C.C.T.V. Per prosecution the further statement of the complainant was recorded about 6 months after the incident, wherein the complainant has shown suspicion on the basis of footage seen by him, however the complainant in his evidence before the Investigating Officer or in court has not disclosed the source of providing the said footage to him. During cross-examination the complainant has admitted that the said footage was not recovered in his presence. The complainant in his evidence has also admitted that in the footage no person was seen causing the murder of deceased however, he identified the person seen in footage standing closed to car and then ran away to be his son-in-law Ammar Yasir Ali.
The other prosecution witness is S.I. Muhammad Amir Gondal, the Investigating Officer who in his examination-in-chief has stated that he received CCTV movie, but did not disclose the source from whom he received CCTV movie viewed in open court as part of evidence. Article 164 of Qanun-e- Shahadat expressly authorizes court to allow to produce evidence that may have become available because of modern devices or techniques in such cases as it may consider appropriate.
Article 164, Qanun-e-Shahadat reads as under:-- "In such cases as the court may consider appropriate, the court may allow to be produced any evidence that may have become available because of modern devices or techniques."
However, mere producing CCTV video as piece of evidence and its watching in open court is not sufficient to be relied upon unless and until corroborated and proved to be genuine. As a proof of genuineness of such CCTV video, it was incumbent upon the prosecution to examine the person who recorded the video to testify the same, which requirement the prosecution has failed to fulfil even failed to point out the source of providing the CCTV video, the Investigating Officer who received the CCTV video in his evidence has categorically stated that during investigation he received CCTV movie from a person who did not want to disclose his name or identity being a man of some surveillance. During cross-examination he has further admitted that nothing was visible and identifiable in the video as such the CCTV is not reliable piece of evidence.
6. The further statement of complainant, recorded by Investigating Officer about 6 months after the incident, disclosing the facts discussed in the preceding paras is unreliable piece of evidence. Such further statement is not substantive evidence, it cannot be acted upon legally particularly to base a conviction of the accused person and sentencing him unless corroborated by independent evidence, which evidence in this case is missing.
7. The other evidence relied upon by the trial Court while recording the conviction was the recovery of crime weapon i.e,, .9MM pistol on the pointation of appellant. Per prosecution, the said recovery was effected after 6 months of the incident and 4 days after the arrest of appellant the same along with empties recovered from the place of scene was sent after 4 months and 10 months of respective recoveries to forensic division for examination and no explanation was forthcoming from the prosecution as to where the said empties and crime weapon remained lying for such a long period, hence the said evidence has no sanctity, thus no reliance can be placed on the said recovery nor mere recovery of crime weapon is enough proof to connect the appellant with the commission of offence, when there was no ocular as well as circumstantial evidence.
8. For the reasons discussed above, I have come to the conclusion that the prosecution has failed to establish the charge of murder of deceased Sadaf Rizvi against appellant without any shadow of reasonable doubt, therefore conviction and sentence awarded to the appellant through impugned judgment was set aside and he was acquitted from the charge of murder vide short order dated 31-1-2013.
' Above are the reasons of short order dated 31-1-2013. #EndJudgment