2012 Y L R 1355
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
SHAH JAHAN and another ---Appellants
versus
THE STATE---Respondent
Criminal Appeals Nos.8 and 13 of 2011, decided on 14th March, 2012.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qanun- e-Shahadat (10 of 1984), Art. 21---Qatl -e-amd---Appreciation of
evidence ---Circumstantial evidence corroborating last seen and medical evidence---Deceased
was last seen in the company of accused (appellan t), and such evidence had been stated in a
categorical manner by the one of the prosecution witnesses ---Another prosecution witness (Naib
Tehsildar) had stated that during interrogation accused disclosed that he threw the body of the
deceased in a well aft er putting him to death---Accused led the police to the said well from
where the body of the deceased was recovered ---Recovery of dead body from the well on the
pointation of the accused led full corroboration to the last seen evidence, and besides medical
evidence also supported the prosecution case ---Accused failed to furnish a plausible explanation
that at which point and where the deceased separated from him, and, thus, he could not discharge the onus of burden which lay on him in view of Article 21 of the Qanun -e-Shahadat, 1984---
Non-sending of crime weapons to Forensic Science Laboratory, non- associating of private
witnesses at the time of alleged recovery of crime weapon and articles on the pointation of
accused, such omissions on part of investigatin g officer could not mean that whole case of
prosecution had become doubtful ---All the pieces of circumstantial evidence, when combined
together, provided a strong chain of circumstances, leading to the conclusion that it was the accused, who had committed the murder of the deceased ---Appeal of accused was dismissed and
his conviction and sentence recorded by Trial Court was maintained.
Sura Yousaf, the relevant portion of which (25- 29); The State v. Manzoor Ahmed and
Muhammad Ismail Khan v. Manzoor Ahmed PLD 1966 SC 664 and Muhammad Amin v. The
State 2002 SCMR 1784 rel.
(b) Penal Code (XLV of 1860) ---
---S. 302(b) ---Qanun- e-Shahadat (10 of 1984), Arts. 38 & 39---Qatl -e-amd---Appreciation of
evidence ---Benefit of doubt ---Disclosure made by co- accused w ith regard to the murder of the
deceased amounted to a confession and was not admissible in view of the clog contained in
Articles 38 and 39 of the Qanun -e-Shahadat, 1984, as in pursuance thereof no 'fact' was
discovered ---Pointation of the place of occurrence by co -accused, where deceased was done to
death, was also of no avail to the prosecution, as same was already in the knowledge of the
police ---Except for said disclosure of co- accused, there was no other tangible piece of evidence
available on r ecord to connect him with the crime in question---Appeal of co- accused was
accepted and impugned judgment of Trial Court was set aside to the extent of the co- accused and
he was acquitted of the charge.
(c) Criminal trial---
---Circumstantial evidence, appraisal of ---Principles ---In every crime, it was not necessary to
bring on record evidence which directly connected the accused with the crime, if there were
strong circumstances existing on record against the accused from whi ch it could be safely
inferred that the accused was the person, who had committed the offence ---Court was bound to
be on guard while appraising the evidence and to see that each circumstance was proved independently and was so connected with the other cir cumstances that, it constituted an unbroken
chain and led to no other inference, but to the guilt of the assailant.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Lack of direct evidence ---Indirect evidence--- Scope ---Where there
is no dir ect evidence to show as to in what precise manner the victim came to be killed the court
had to discharge its onerous duty of determining whether the death was caused by the felonious
act of some other person and, if so, what offence, if any, had been comm itted by such a person
and it was not sufficient in such a case to say that since there was no direct evidence to connect any one with the felonious act the guilt could not be fixed---Court, in such cases was duty bound to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place, the articles found there, the motive for the crime and the other surrounding circumstances proved.
The State v. Manzoor Ahmed and Muhammad Ismail Khan v. Manzoor Ahmed PLD 1966 SC 664 quoted.
(e) Penal Code (XLV of 1860) ---
----S.302(b) ---Qanun- e-Shahadat (10 of 1984), Art.21---Qatl -e-amd---Last seen evidence--Proof-
--Onus ---Scope ---Where the accused failed to furnish a plausible explanation that on which
point, time and where the deceased separated from him, the accused could not be said to have
discharged the onus that lay on him in view of the provisions as contained in Art. 21 of Qanun- e-
Shahadat, 1984.
Muhammad Amin v. The State 2000 SCMR 1784 quoted.
Obaidullah Quresh for Appellant (in Criminal Appeal No.8 of 2011).
Sher Muhammad Lehri and Syeda Tehmina for Appellant (in Criminal Appeal No.13 of 2011).
Muhammad Wasay Tareen P.G. for the State (in both Appe als).
Date of hearing: 5th March, 2012.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---These criminal appeals are directed against
the judgment dated 20th December, 2010, passed by the Sessions Judge, Kalat Division at
Mastung, whereby appellants Nas rullah and Shahjehan were convicted and sentenced under
section 302(b) of the P.P.C. to suffer life imprisonment as ta 'zir and to pay an amount of Rs.100,000 (rupees one hundred thousand only) each as compensation to the legal heirs of deceased Abdul Wahe ed, in default whereof to further undergo S.I. for six (6) months each, with
the benefit of section 382- B of the Cr.P.C. Since common questions of law and facts are
involved and that both the appeals are arising out of one and same judgment, therefore, we propose to dispose of the same by means of this common judgment.
2. Briefly stated the facts of the case are that complainant Ali Ahmed son of Haji Qutab Khan in
his Fard -e-Bayan Exh.P/2- A dated 20th June, 2010, alleged that his brother Abdul Waheed went
to Kadkoocha Chitok for labour purposes and was staying in the house of his relatives. He was
informed by Abdul Qadus by means of telephone that on 18th June, 2010, Abdul Waheed left the house but did not turn up, at which he started searching him, but in vain. It is further alleged by
the complainant that on above date i.e. 20th June, 2010, he was told by Izatullah that he had seen his brother on that day in the company of Nasrullah son of Syed Muhammad. It was also alleged by the complainant that accused Nasrullah has committed the murder of his brother and concealed his dead body. On the basis of Fard- e-Bayan, a case vide Crime No.8 of 2010, under
sections 302, 201 read with section 34 of the P.P.C. was registered at Police Station Kadkoocha District Mastung.
3. After registration of F.I.R. Exh.P/2- B, the investigation of the case was carried out by P.W.7
Zubair Ahmed, Naib Tehsildar, who arrested accused Nasrullah and during course of the
investigation, the accused made disclosure regarding commission of the offence and stated that he had committed murder of the deceased with the help of accused Shahjehan by means of a knife in a rainy drain and had thrown his dead body in a well. The accused pointed out the place of occurrence and, thereaf ter, on his pointation, the dead body of the deceased was recovered
from the well, which was taken into possession and, subsequently, it was released to his heirs. On the pointation of accused Nasrullah, crime weapon i.e. knife and china shoes, of the dece ased
were recovered from his house. He secured blood- stained earth of the deceased vide memo,
recorded statements of P.Ws., prepared site sketch Exh.P/7- A and inquest report Exh.P/7- B. He
arrested accused Shahjehan on 23rd June, 2010 and during course of i nvestigation, the accused
made disclosure regarding commission of the offence and after completion of necessary
investigation, he remanded the accused persons to judicial custody and prepared challan Exh.P/7-C.
4. On the stated allegations, a formal char ge was framed and read over to the accused/appellants
on 23rd August, 2010, to which they did not plead guilty and claimed trial. To prove the
accusation, the prosecution examined seven witnesses. P.W.1 Dr. Abdul Hameed Bangulzai, Chief Medical Officer, DH Q Hospital, Mastung, examined the dead body of the deceased and
issued Medico -legal certificate Exh.P/1 -A. P.W.2 Ali Ahmed is complainant of the case, who
produced Fard- e-Bayan Exh.P/2- A and F.I.R. Exh.P/2- B. P.W.3 Izatullah alleged to have seen
the deceased lastly in the company of accused Nasrullah. P.W.4 Alif Khan, levies employee, is witness to the disclosure, pointation and recovery memos Exh.P/4- A to Exh.P/4- E. P.W.5 Hazar
Khan is witness to the recovery memo. Exh.P/5- A of blood -stained earth of the deceased. P.W.6
Mohi -ud-Din is witness to the recovery memo Exh.P/6- A of crime weapon and P.W.7 Zubair
Ahmed, Naib Tehsildar, is the Investigating Officer of the case. Then the prosecution closed its side.
5. Thereafter, the accused persons were examined under section 342 of the Cr.P.C., wherein they
once again denied the prosecution accusation and claimed to be innocent. They did not opt to
record their statements on oath as provided under section 340(2) of the Cr.P.C., nor produced
any witness in their defence. On conclusion of the trial, the trial Court convicted and sentenced the accused persons, as mentioned and detailed above, hence these appeals.
6. We have heard Messrs Obaidullah Quresh, Sher Muhammad Lehri and Syeda Tehmina,
learned counsel for the appellants and Mr. Muhammad Wasay Tareen, learned Prosecutor -
General for the State and have also gone through the record and papers of the trial Court.
7. Learned counsel for the appellants, inter alia, contended that:
(i) The ocular account regard ing last seen evidence by P.W.3 Izzatullah is not worthy of
credence, being produced by highly interested and related witness;
(ii) It was an unseen occurrence and no direct evidence whatsoever in nature is available on
record, connecting the appellants with the commission of alleged offence;
(iii) On the basis of "last seen evidence", being a weak type of evidence, no conviction could
have been awarded in absence of any corroboratory evidence, which was absolutely lacking;
(iv) The conviction was rec orded on the basis of last seen evidence, which, according to the trial
Court, was' corroborated by the medical evidence, without giving details of such circumstances,
whereas the medical evidence was contradictory to the ocular account in view of submissi on
made earlier, and
(v) The alleged disclosures made by the appellants are inadmissible in evidence in view of the
clog contained in Articles 38 and 39 of the Qanun -e-Shahadat Order, 1984.
8. Mr. Muhammad Wasay Tareen, learned Prosecutor -General, whil e controverting the
contentions, as agitated on behalf of convicts/appellants, has defended the impugned judgment,
stating that the prosecution has proved its case against the appellants beyond any shadow of doubt through last seen evidence, recovery of de ad body effected at the instance of appellant
Nasrullah, extra -judicial confession of the appellants and the medical evidence, thus, no illegality
or irregularity, whatsoever, has been committed by the trial Court, while convicting the appellants.
9. We have carefully considered the contentions put forth by learned counsel for the parties and
have also minutely gone through the impugned judgment. The case of the prosecution mainly rests upon the circumstantial evidence i.e. last seen evidence, extra judic ial confession,
pointation and recovery of dead body of the deceased at the instance of the appellant Nasrullah.
10. In a case of circumstantial evidence, it is the bounded duty of the Court to be on guard while
appraising the evidence and to see that each circumstance is proved independently and is so connected with the other circumstances that, it constitutes an un broken chain and leads to no
other inference, but to the guilt of the assailant. While considering the case of the prosecution on the touchstone of the criterion, as mentioned hereinabove, it may be observed that deceased Abdul Waheed was lastly seen in th e company of appellant Nasrullah. The last seen evidence
was furnished by P.W.3 Izzatullah, no has stated in a categoric manner that on 18th June, 2010 at about 7- 30 a.m., he was present at his flour mill situated at Kadkoocha and saw deceased Abdul
Waheed going along with appellant Nasrullah. Similarly, P.W.7 Zubair Ahmed, Naib Tehsildar,
has stated that during the course of interrogation, appellant Nasrullah disclosed that he, after
putting to death, had thrown the dead body of deceased Abdul Waheed in a well. Appellant Nasrullah led them to that well and got recovered the dead body therefrom. These two strong circumstances are sufficient enough to connect appellant Nasrullah with the crime in question,
which have not been rebutted by him successfully by producing reliable evidence or he had come
with a plausible plea, creating doubts to his guilt. The appellant has simply denied to have
committed the offence, which, in our view, is not sufficient to ignore the above strong circumstances, existing against him. In every crime, it is not necessary to bring on record evidence directly, connecting the accused with the crime, nor lack of direct evidence means that the guilt cannot be fixed, if there are strong circumstances existing on record against the accused and from which it could be safely inferred that the accused is the person, who had committed the offence. In this regard, we are fortified by divine guidance in Sara Yousaf the relevant portion of which (25- 29) speaks as under: --
"25. So they both raced each other to the door, and she torn his shirt from the back: They both
found her lord near the door. She said: "What is the (fitting) punishment for one who formed an evil design against thy wife, but prison or a grievous chastisement?"
(26) He said "It was she that sought to seduce me --From my (true) self. " And one of her
household saw (this) and bore witness, (thus): --"If it be that his shirt is rent from the front, then
is her tale true, and he is a liar!
(27) "But if it be that his shirt is torn f rom the back, then is she the liar, and he is telling the
truth!"
(28) So when he saw his shirt,--That it was torn at the back, --(Her husband) said: "Behold! It is a
snare of you women! Truly, mighty is your snare!
(29) "O Joseph, pass this ove r! (O wife), ask forgiveness for thy sin, for truly thou hast
been at fault! "
Apart from above, the Hon'ble Supreme Court in the cases of "The State v. Manzoor Ahmed"
and "Muhammad Ismail Khan v. Manzoor Ahmed", PLD SC 664. while discussing the impact of
circumstantial evidence, observed as under: --
"In a case where there is no direct evidence to show as to in what precise manner the victim
came to be killed the Court has to discharge its onerous duty of determining whether the death was caused by th e felonious act of some other person and, if so, what offence, if any, had been
committed by such a person. It is not sufficient in such a case to say that since there is no direct evidence to connect any one with the felonious act the guilt cannot be fixe d. It is precisely in
such cases that it is the duty of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place, the articles found there, the motive for the crime and the other surrounding circumstances proved."
11. The most important piece of incriminating evidence, which cannot be ignored, is the
recovery of dead body on the pointation of appellant Nasrullah from a well, w hich was in his
exclusive knowledge and is sufficient to establish the accusation leveled against him and it leads full corroboration to the last seen evidence. Besides, the medical evidence also supports the prosecution case.
12. It would also be releva nt to mention here that appellant Nasrullah failed to furnish a plausible
explanation that on which point and where the deceased was separated from him and, thus, he
could not discharge the onus of burden lies on him in view of the provisions as contained in Article 21 of the Qanun -e-Shahadat Order, 1984. In a similar nature of case i.e. "Muhammad
Amin v. The State", 2000 SCMR 1784, where the accused failed to furnish the explanation and rebut the last seen evidence, the Hon'ble Supreme Court observed as under: --
"---S.302---Qanun- e-Shahadat (10 of 1984), Art. 21---Last seen evidence---Proof ---Onus ---
Scope ---Where the accused failed to furnish a plausible explanation that on which point, time
and where the deceased separated from him, the accused could not be said to have discharged the
onus lay on him in view of the provisions as contained in Art. 21 of Qanun -e-Shahadat, 1984."
13. Adverting to the last submission of learned counsel for appellant Nasrullah with regard to
non-sending of the crime weapon t o Forensic Science Laboratory as well as non -associating of
private witnesses at the time of alleged recovery of crime weapon and articles i.e. knife and a pair of shoes of the deceased on the pointation of appellant Nasrullah, it is suffice to observe that, at the most, such piece of evidence could not mean due to this omission on the part of
investigating officer, the whole case of prosecution has become doubtful.
14. The medical examination and evidence lends support to the last seen evidence. Multiple
circumstances corroborate the involvement of appellant Nasrullah in the killing of deceased
Abdul Waheed i.e. taking of deceased to Dhore area, not returning of the deceased, after arrest discloses the manner in which the deceased was killed and thrown into the well, pointation of the place of occurrence and recovery of crime weapon and deceased's belonging as well as recovery of dead body on his pointation. All these prove beyond the shadow of doubt that it was none other than appellant Nasrullah, who had taken deceased Abdul Waheed, killed him and thereafter
threw him in the well. All the aforesaid pieces of circumstantial evidence, when combined together, provided strong chain of circumstances, leading to the irresistible conclusion that it was the appellant, who had committed murder of the deceased.
15. So far as the case of appellant Shahjehan is concerned, it would be advantageous to
reproduce hereinbelow relevant portion of the statement of P.W.4 Alif Khan, which reads as under: --
"Similarly, arrested accused Shahjehan, present in the Court, during investigation disclosed that
he asked accused Nasrullah to bring Abdul Waheed, because there is a dispute over an amount between him and Abdul Waheed and in order to get rid of him, he wi ll kill him for this purpose
and in lieu thereof he will pay him an amount of Rs.10,000. Thereafter, accused Nasrullah went
out from his house in order to search Abdul Waheed and brought him to rainy drain and called him. Both of them cut the neck of Abdul Waheed with a knife and murdered him. They threw the
dead body in a well. Accused Shahjehan further disclosed that he can point out the place of occurrence. On this disclosure of accused, the investigating officer took the accused, who pointed out the pla ce of occurrence, where deceased was put to death and thereafter the accused
led the police towards the well."
From perusal of above portion of the P.W's. statement, it is quite clear that the witness talked
about two disclosures; one made before him reg arding murder of deceased Abdul Waheed and
second with regard to the place of occurrence. We see force in the contention raised by Mr. Obaidullah Quresh, learned counsel for appellant Shahjehan, that so far as the alleged disclosure made by appellant Shahj ehan with regard to the murder of deceased Abdul Waheed is concerned,
it amounts to a confession and, otherwise, was not admissible in view of the clog contained in Articles 38 and 39 of the Qanun- e-Shahadat Order, 1984, as in pursuance thereof no "fact" w as
discovered. Similarly, pointation of the place of occurrence, where deceased Waheed was done to death by the appellant, is also of no avail to the prosecution, as the same was already in the knowledge of police. It may be observed that except the afores aid disclosure, which is,
otherwise, inadmissible in evidence, there is no other tangible piece of evidence available on record to connect him with the crime in question.
Thus, while extending benefit of doubt, Criminal Appeal No.8 of 2011 filed by appel lant
Shahjehan is accepted, resultantly, impugned judgment passed by the trial court is set aside to his
extent and he is acquitted of the charge. He be set at liberty, if not required in any other case. Whereas Criminal Appeal No.13 of 2011 filed by appel lant Nasrullah, being meritless, is
dismissed and his conviction and sentence recorded by the trial Court is maintained.
M.W.A./22/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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