2022 Y L R 173
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
SABIR HUSSAIN---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.(s) 149 of 2019 and Criminal Revision Petition No.(s) 36 of 2019,
decided on 19th October, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention ---Appreciation of evidence--- Last seen
evidence--- Scope ---Accused was charged that he and co -accused committed murder of the
son of the complaina nt---Record transpired that no one came forward to furnish ocular
account to that incident, thus, it was an unseen occurrence ---Last seen evidence had been
furnished by one witness, who stated that accused and two other persons took the deceased on a motor cycle and corps of the deceased was found from the water tank ---Said story
narrated by the witness had neither been corroborated from the FIR as well as disclosure of the accused before the police nor prosecution produced any other corroborating evidence i n
that behalf ---Version of said witness established his status as a witness of last seen, which
was an afterthought and seemed concocted and fabricated one ---Had said witness seen the
accused on the very first day of missing of deceased he would have defin itely disclosed
before the police regarding missing of the deceased ---Said witness would have also inquired
from the accused about the whereabouts of the deceased, but he did not lodge the report on the first day rather his statement was recorded by the police after three days from missing of the deceased, despite the fact that said witness was a nephew of the complainant, thus, said belated story of witness regarding last seen of the deceased in the company of the accused was unbelievable and not trustwort hy---Appeal against conviction was allowed, in
circumstances.
(b) Criminal trial ---
----Circumstantial evidence ---Scope ---If the case was based on circumstantial evidence the
prosecution must ensure that the circumstances from which the inference of guilt was sought to be drawn must be cogently and firmly established--- Circumstances must unerringly point
towards the guilt of the accused and when taken cumulatively should form a chain so complete, that it must demonstrate in all probabilities that the crime was committee by the
accused.
Sheikh Muhammad Amjad v. State PLD 2003 SC 704 rel.
(c) Criminal trial ---
----Last seen evidence--- Scope ---Admittedly, the last seen evidence was the weakest type of
evidence unless corroborated by other strong pieces of evidence---Awarding punishment of
capital charge on the basis of evidence of last seen was difficult.
Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Muhammad Abid
v. The State and another PLD 2018 SC 813 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl -i-amd, common intention ---Appreciation of evidence--- Delay in
lodging the FIR ---Effect ---Accused was charged that he and co -accused committed murder of
the son of the complainant ---In the present case, the complainant had knowledge about
missing of the deceased on 13.07.2019, but despite that, the he did not lodge the report and the report was lodged on 16.07.2019 at 10:30 a.m.---Nothing came on record about lodgement of the report of missing of the deceased by the complainant in Levie s Thana ---
Record showed that the dead body of the deceased was recovered from the water tank of the Madrasa on 16.07.2019 at 6:30 a.m., and the FIR was lodged on the same date at 10:30 a.m. with a delay of four hours from the recovery of dead body of the deceased ---Lodgement of
the FIR with delay by the complainant created a reasonable doubt in the prosecution case---Appeal against conviction was allowed, in circumstances .
Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 rel.
(e) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 37, 39 & 40--- Disclosure of accused before the police--- Scope ---Confession made
by accused person, while he was in police custody, was not admissible, however, if something related to the case was recovered or any fact was discovered in consequence of
information conveyed by the accused person then the information so received would be admissible in evidence to the extent of recovery if corroborated with other piece of evidence within the purview of Art. 40 of the Q anun -e-Shahadat, 1984 because then the presumption
would be towards its truthfulness ---If nothing in consequence of the disclosure was
recovered or discovered then the information so received by itself would not be admissible.
(f) Penal Code (XLV of 1860)- --
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence--- Recovery of
incriminating material on the pointation of accused--- Scope ---Accused was charged that he
along with his co- accused committed murder of the son of the complainant ---Record showed
that on the pointation of accused the motorcycle used in the commission of the alleged
offence was recovered from his house and further recovered a piece of rope and chappal of the deceased and plastic bag from the place of occurrence and th e same were taken into
possession through recovery memo---Official witness stated during cross -examination that
the recovered articles were not sealed ---No sealed parcel was made by the Investigation
Agency ---Alleged rope and chappal were easily available in the village or at any place ---
Nothing on the file that the piece of rope was used/ caused the death of the deceased ---
Imperatively, recovery of the articles could not be termed as discovery, when it was not
recovered from any hidden place--- Circumstances established that the prosecution had failed
to prove its case against the accused ---Appeal against conviction was allowed, in
circumstances.
Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 rel.
(g) Penal Code (XLV of 1860) ---
----Ss . 302 & 34---Qanun -e-Shahadat (10 of 1984), Art. 40---Qatl -i-amd, common intention --
-Appreciation of evidence ---Delay in disclosure made by accused before the police--- Scope --
-Accused was charged that he and co -accused committed murder of the son of the
complainant ---Record showed that the accused was arrested and the alleged disclosure was
made by the accused with a delay of 14 days under the custody of the police ---Said
disclosure was not made in the presence of Magistrate ---In the absence of any strong
circumstantial piece of evidence, such disclosure was of no legal value ---Appeal against
conviction was allowed, in circumstances.
(h) Criminal trial ---
----Circumstantial evidence ---Scope ---To base conviction on circumstantial evidence,
interlinked chain of credible and cogent corroborative evidence was to be available on the
record.
Muhammad Ashraf Abro for Appellant (in Criminal Appeal No.(s) 149 of 2019).
Hasnain Iqbal Minhas for the Complainant (in Criminal Appeal No.(s) 149 of 2019).
Hasnain Iqbal Minhas for Petitioner (in Criminal Revision Petition No.(s) 36 of
2019).
Muhammad Ashraf Abro for Respondent (in Criminal Revision Petition No.(s) 36 of
2019).
Jamil Akhtar Gajani, Assistant Prosecutor General (APG") for the State (in Criminal
Appeal No.(s) 149 and Criminal Revision Petition No.(s) 36 of 2019).
Date of hearing: 24th September, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant was involved in case FIR No. 11 of
2019 dated 16.07.2019 registered under section 302/34, P.P.C. at Levies Thana Sunnoi
District Kachhi was tried by the learned Additional Sessions Judge, Bhag at Dhadar, (hereinafter "the trial court"). The learned trial court was seized with the matter in terms of the judgment dated 16.10.2019 (hereinafter "the impugne d Judgment") convicted and
sentenced the appellant in the following terms: -
"The accused/appellant namely Sabir Hussain son of Raza Muhammad is convicted
and sentenced under section 302(b), P.P.C. to suffer imprisonment for life with fine of Rs.2,00,000/ - (Rupees Two Lac Only) as compensation to the legal heirs of deceased
within the purview of section 544- A, Cr.P.C., or in default to suffer SI for six (06)
months. Benefit of section 382(B), Cr.P.C., is extended in favour of accused/appellant".
2. Aggrieve d from the impugned judgment, the appellant Sabir Hussain son of Raza
Muhammad has assailed his conviction and sentence through Criminal Appeal No.(S) 149 of 2019, while the complainant Abdul Rehman son of Noor Muhammad filed Criminal Revision Petition No. (S) 36 of 2019 for enhancement of conviction awarded to the appellant by the
trial court, as the appeal and criminal revision petition are arising out one and the same judgment of the trial court, therefore, the same are being disposed of through this comm on
judgment.
3. The prosecution story as disclosed in the FIR (Ex.P/7- A) recorded on the written
report of complainant/ PW -1 Abdul Rehman son of Noor Muhammad (Ex.P/1- A) is that he is
resident of Sunni Shooran and is Mechanic of Motorcycles. His son Nadeem Hussain and
Shabir Ahmed are studying in Madrasa Abdul Jalil at Shooran. On 13.07.2019 at evening time his son did not return back to home, so he asked Shabir Ahmed about his son. He told that he was taken on a motorcycle by accused Sabir Hussain along wi th two unknown
persons on motorcycles. However, today, i.e. 16.07.2019 at 6:30 a.m., the corpse of his son was found in the water tank of Madrasa. It is further alleged in the report that he is fully confident that his son has been murdered by the nominate d accused Sabir Hussain. Hence the
crime report.
4. After completion of the usual investigation, the challan was submitted against the
appellant before the trial court, where he was formally charge -sheeted to which he pleaded
not guilty and claimed trial. To prove guilt of the appellant, the prosecution examined as
many as seven (07) witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under section 342, Cr.P.C., wherein he denied the prosecution allegations and prof essed his innocence. He, however, refused to be examined on oath under
section 340(2), Cr.P.C. or to produce evidence in defence. On conclusion of trial, the learned trial court, after hearing both the sides, convicted and sentenced the appellant as mentio ned
above, hence, this appeal.
5. Arguments advanced from both sides have been heard. We have also minutely gone
through the available record on file with the able assistance of the learned counsel for the parties. Record transpires that no one came forwar d to furnish ocular account to this
unfortunate incident; thus, one may say that it is an unseen occurrence. The material collected by the prosecution are; last seen evidence furnished by PW -2 (Bashir Ahmed), the
pointation of the place of occurrence by the appellant, disclosure of the appellant/accused, recovery of piece of rope and plastic bag on the pointation of the accused and medical evidence.
6. Before dilating upon the above referred circumstantial evidence, we are fully
conscious of the principle t hat if the case is based on circumstantial evidence, the
prosecution must ensure, that the circumstances from which the inference of guilt is sought
to be drawn, must be cogently and firmly established. The circumstances must unerringly point towards the guilt of the accused and when taken cumulatively, should form a chain so complete, that it must demonstrate in all probabilities that the crime was committed by the
accused. It is well to remember that in cases where the evidence is of a circumstantial natu re,
the circumstances from which the conclusion of guilt is to be drawn should be consistent
only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis, but
the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such to show that wi thin all human probability the
act must have been done by the accused. In the case titled Sheikh Muhammad Amjad v. State (PLD 2003 SC 704). The august Supreme Court while dealing with circumstantial evidence, has been held that: --
"According to the standard of proof required to convict a person on circumstantial
evidence, the circumstances relied upon in support of the conviction must .be fully established and the chain of evidence furnished by those circumstances must be so complet e as not to leave any reasonable ground for a conclusion consistent with the
innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances
cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime."
7. First of all, we would take the last seen evidence, which is usually not considered to
be a strong piece of evidence. In the case in hand the same was furnished by Bashir Ahmed (PW -2). According to this witness, he is a student of Madrasa Abdul Jalil where the deceased
was also studying, and he was studying in the said Madrasa from the last six years. On 13.07.2019 the accused Sabir Huss ain and two other persons taken the Nadeem Hussain on a
motorcycle. On 16.07.2019 at morning time corps of the deceased Nadeem Hussain was found from the water tank of Madrasa.
8 The above story narrated by the PW -2 Bashir Ahmed has neither been corroborat ed
from the FIR as well as disclosure of the appellant before the police; nor prosecution produced any other corroborating evidence in this behalf. PW -2 Bashir Ahmed stated during
cross -examination that he and deceased Nadeem Hussain along with 13/14 stude nts were
residing in the said Madrasa and rest of the students are coming from their houses. Neither the teachers of the Madrasa nor other students of the Madrasa were produced by the prosecution before the court to corroborate the version of PW -2. This ve rsion of PW -2
establishes his status as a witness of last seen, which is an afterthought and seems concocted and fabricated one. Had he seen the appellant Sabir Hussain on the very first day of deceased's Nadeem Hussain missing he would have definitely dis closed before the police
regarding missing of the deceased, when he was last seen with one Sabir Hussain, and he
would have also inquired from the appellant about the whereabouts of the deceased, but he
did not lodge the report on the first day rather his statement was recorded by the levies on 16.07.2019 after three days from missing of the deceased Nadeem Hussain. Despite the fact that he is a nephew of the complainant/PW -1. This fact was also confirmed by PW -4 Abdul
Hakeem. He stated during cross -examina tion that the deceased Nadeem Hussain is the
nephew of the son of Abdul Hameed. It is important to mention here that Abdul Hameed is
the father of the PW -2.
Admittedly the last seen evidence is the weakest type of evidence unless corroborated
by other str ong pieces of evidence. It is difficult to award punishment of capital charge on
the basis of evidence of last seen. The statement of PW- 2 does not find any support from the
alleged disclosure of the appellant and other piece of evidence. Thus, this belate d story of
PW-2 regarding last seen of the deceased in the company of the appellant is unbelievable and
not trustworthy.
9. The complainant has knowledge about missing of the deceased on 13.07.2019, but
despite that, the complainant did not lodge the repor t, and he lodged the report on 16.07.2019
at 10:30 a.m. Nothing came on record about lodgment of the report of missing of the
deceased by the complainant in Levies Thana. It has also come on record that the dead body of the deceased was recovered from the water bank of the Madrasa on 16.07.2019 at 6:30 a.m., and the FIR was lodged on the same date at 10:30 a.m., with a delay of four hours from the recovery of dead body of the deceased. The lodgment of the FIR with delay by the complainant creates a reasonab le doubt in the prosecution case. Reliance in this behalf is
placed in the case of Mehmood Ahmed and 3 others v. The State and another (1995 SCMR 127).
10. So far as the alleged disclosures of appellants is concerned, it may be stated that as
provided by A rticles 37, 39 of the Qanun- e-Shahadat Order, 1984, a confession made by an
accused person, while he is in police custody, is not admissible. However, if something related to the case is recovered or any fact is discovered in consequence of information conveyed by the accused person, then the information so received would be admissible in
evidence to the extent of recovery if corroborated with other piece of evidence within the purview of Article 40 of the Qanun- e-Shahadat Order, 1984 because then, the pres umption
would be towards its truthfulness but if nothing in consequence of the disclosure is recovered or discovered, then the information so received by itself would not be admissible.
11. Now turning towards the recovery of alleged rope and chappal of the deceased,
according to PW -5 Bilal Khan, Levies Sepoy, on 31.07.2019 during the course of
investigation that the accused/appellant disclosed about the murder of the deceased and on his pointation the motorcycle used in the commission of the alleged offenc e was recovered
from his house and further recovered a piece of rope and chappal of the deceased and plastic bag from the place of occurrence and the same were taken into possession through recovery memo.
12. The PW- 5 stated during cross -examination that t he recovered articles were not sealed.
No sealed parcel was made by the investigation agency, and the alleged rope and chappal are
easily available in the village or at any place. There is also nothing on the file that the piece
of rope was used/caused the death of the deceased. It is also imperative to note that recovery
of the article cannot be termed as discovery, when it was not recovered from any hidden place and if in the normal course. Reliance in this context can be made on the case titled Mst. Aska r Jan and others v. Muhammad Daud and others (2010 SCMR 1604).
13. The accused was arrested on 17.07.2019, and the alleged disclosed was made by the
appellant on 31.07.2019 with a delay of 14 days under the custody of the police which this not made in the presence of the Magistrate in the absence of any strong circumstantial piece of evidence is of no legal value.
14. So, we hold that the story of last seen cooked up by the prosecution is nothing but
afterthought because the same does not appeal to the prudent mind. Even otherwise, evidence of last seen is the weakest type of evidence, unless corroborated with some independent piece of evidence it cannot be relied upon. Reliance in this regard is placed on the case of Altaf Hussain v. Fakhar Hussain and anot her (2008 SCMR 1103). Moreover, the august
Supreme Court of Pakistan in its recent judgment titled as Muhammad Abid v. The State and another (PLD 2018 Supreme Court 813) has given an exhaustive view about the theory of last seen which is reproduced as under: -
"5. ... The theory of last seen together is one where two persons are 'seen together' alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption can be drawn that the person alive is the author of the other's death. Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime. The
circumstance of the deceased being last seen in the company of the accused is no t by
itself sufficient to sustain the charge of murder. There must be evidence to link the accused with the murder of his companion, such as incriminating facts as recovery, strong motive and the proximate time when they were last seen together and the tim e
when the deceased was killed. Last seen evidence as circumstantial evidence must be
incompatible with the innocence of the accused and should be accepted with great caution. It must be scrutinized minutely so that no plausible conclusion should be drawn there- from except guilt of the accused.
6. The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused 2. Proximity of the crime scene. 3. Small time gap between the sighting and crime 4. No possibility of third person interference 5. Motive. 6 Time of death of victim. The circumstance of last seen together does not by itself necessarily l ead to the inference that it was the
accused who committed the crime. There must be something more establishing connectivity between the accused and the crime."
15. The whole prosecution case is based upon circumstantial evidence. It is settled
principle o f law that to base conviction on circumstantial evidence there should be an
interlinking chain of credible and cogent corroborative evidence available on the record, which needless to mention is totally missing in this case.
In view of the above discussion, we are of the view that the prosecution failed to
prove the guilt of the accused/ appellant beyond the reasonable doubt. In case any doubt is
created then the benefit will go to the accused not to the prosecution. The evidence collected by the prosecuti on is a tainted piece of evidence as such they do not corroborate with each
other. We are of the opinion that the learned trial Judge was not justified in relying upon
these pieces of tainted evidence for the conviction of the appellant. Accordingly, we al low
the appeal, set aside the judgment and conviction of the appellant, and he is at liberty if not
warranted in any other case. The appeal is hereby accepted.
Hence, the Criminal Revision Petition No.(S) 36 of 2019 filed by the petitioner is
dismissed.
JK/255/Bal. 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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