PLJ 2021 SC (Cr.C.) 258
[Appellate Jurisdiction]
Present:
Manzoor Ahmad Malik, Mazhar Alam Khan
Miankhel and Syed Mansoor Ali Shah, JJ.
NAVEED
ASGHAR and 2 others--Petitioners
versus
STATE--Respondent
J.P. No.
147 of 2016, decided on 7.12.2020.
(Against
the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated
12.02.2016 passed in Crl. Appeal No. 16-J of 2011, Crl. Revision No. 31 of 2011
and M.R. No. 25 of 2011)
----Ss. 302(b)/392/34--Identification parade--Chance witness--Recovery--Expert report--Benefit of
doubt--Heinous nature of crime should not blur eyes of justice--Cases are to be
decided on basis of evidence and evidence alone and not on basis of sentiments
and emotions--Testimony of chance witness requires cautious scrutiny and is not
accepted unless he gives satisfactory explanation of his presence at or near
place of occurrence at relevant time--In absence of reports of Chemical
Examiner and Serologist on these facts, assertion of investigating officer as
to use of said motorcycle in commission of crime carries no legal worth--Three
daughters would have been best persons to identify gold ornaments-- names and
particulars of those persons who had brought mobile phones were not mentioned
in case dairy-- recovery proceedings were not seen by any person from public
other than said witnesses to recovery--It is quite astonishing that both
recovery witnesses were close relatives of complainant reached police station
at time when investigating officer planned to make a raid for arrest of accused
persons and also when accused persons were ready to cooperate for making
recoveries during investigation--Court disbelieved alleged recovery of
blood-stained weapon of offence, i.e. a chaff cutter (Toka), made after
about one month of occurrence--When substantive evidence fails to connect
accused person with commission of offence or is disbelieved, corroborative
evidence is of no help--Recovery of a blood-stained knife, alleged weapon of
offence, insufficient for conviction on excluding testimony of alleged
eyewitness from consideration and finding occurrence as an unseen one--It was
necessary for investigating officer to get conducted test identification
proceedings as to identification of petitioners--It was a serious failure in
performance of his duty to conduct investigation of case diligently and
efficiently--Mere conjectures and probabilities cannot take place of proof--If
a case is decided merely on high probabilities regarding existence or non-existence
of a fact to prove guilt of a person, golden rule of giving “benefit of doubt”
to an accused person, which has been a dominant feature of administration of
criminal justice-- prosecution is under obligation to prove its case against
accused person at standard of proof required in criminal cases, beyond
reasonable doubt-- prosecution has miserably failed to complete chain of
circumstances so as to establish conclusively guilt of petitioners in a manner
that can rule out every hypothesis inconsistent with their innocence. The
circumstantial evidence tendered by prosecution is not found to be like a
well-knit chain, one end of which can touch dead body of deceased persons and
other neck of petitioners--Appeal is allowed.
[Pp. 269,
273, 274, 279, 280, 283, 284, 285, 286, 287, 288, 289
& 290] E, J, K, L, N, O, P, Q, R, S, T, U,
V, W, X,
Y,
Z, AA, BB, GG
1985
SCMR 410; PLD 1970 SC 10 ref.
Criminal Procedure Code, 1898 (V of
1898)--
----Ss. 374/375/376--High Courts, in discharge of their
statutory duty under S. 375 and 376 of CrPC, to read and appraise each and
every piece of evidence, and to examine also whether any evidence has been
improperly admitted or excluded, or has been misread or non-read by trial
Court--Even non-filing of appeal or withdrawal of appeal by convicted person,
or any concessional statement by state counsel does not relieve High Court from
performing its duty of re-appraising whole evidence available on record. [P. 267] A
1989 PCrLJ 1322; PLD 1964 (W. P.)
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 374/375/376--Reference for confirmation of sentence of
death--On a reference for confirmation of sentence of death, High Court is
required to proceed in accordance with Sections 375 and 376 of Cr.P.C. and provisions
of these Sections make it clear that duty of High Court, in dealing with
reference, is not only to see whether order passed by trial Court is correct,
but to examine case for itself and even direct a further enquiry or taking of
additional evidence if Court considers it desirable in order to ascertain guilt
or innocence of convicted person. [Pp. 267
& 268] B
AIR 1968 SC 1438 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 374--Section 374 of Cr.P.C. provides that when Court of
Session passes sentence of death, proceedings shall be submitted to High Court
and sentence shall not be executed unless it is confirmed by High Court. [P. 268] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 374--High Court has to decide on reappraisal of whole evidence
whether conviction is justified and, having regard to circumstances of case,
whether sentence of death is appropriate. [P.
268] D
AIR 1957 SC 469; AIR 1965 SC 202 ref.
----Ss. 302(b)/392/34--Qatl-e-amd--Heinous
nature of allegation--Frightful nature of crime should not blur eyes of
justice, allowing emotions triggered by horrifying nature of offence to
prejudge accused--Cases are to be decided on basis of evidence and evidence
alone and not on basis of sentiments and emotions. Gruesome, heinous or brutal
nature of offence may be relevant at stage of awarding suitable punishment
after conviction; but it is totally irrelevant at stage of appraising or
reappraising evidence available on record to determine guilt of accused person,
as possibility of an innocent person having been wrongly involved in cases of
such nature cannot be ruled out. [P.
269] E
2016 SCMR 274; 1982 PCrLJ 510; 2005 PCrLJ 887; 2006 PCrLJ
1827; 2008 PCrLJ 971 ref.
Administration of
criminal justice--
----Any
tendency to strain or stretch or haphazardly appreciate evidence to reach a
desired or popular decision in a case must be scrupulously avoided or else
highly deleterious results seriously affecting proper administration of
criminal justice will follow.
[P.
270] F
PLD 1973 SC 418 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Appreciation
of evidence--A high quality of evidence is, therefore, required to prove facts
and circumstances from which inference of guilt of accused person is to be
drawn. [P. 271] G
PLD 1952 PC 117; PLD 1953 FC 214; PLD 1986 SC 690 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Appreciation of
evidence--When there are apparent indications of possibility of fabricating
evidence by investigating officer in making case, Court must be watchful
against trap, which may misled to drawing a false inference, and satisfy itself
about fair and genuine collection of such evidence--failure of Court to observe
such care and caution can adversely affect proper and safe administration of
criminal justice. [P. 271] H
2017
SCMR 986; 2017 SCMR 2026 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Appreciation of
evidence--Any link missing from chain breaks whole chain and renders same
unreliable; in that event, conviction cannot be safely recorded, especially on
a capital charge--Therefore, if circumstantial evidence is found not of said
standard and quality, it will be highly unsafe to rely upon same for
conviction; rather, not to rely upon such evidence will a better and a safer
course. [P. 272] I
1972 SCMR 15; PLD
1986 SC 690; 1992 SCMR 1047; 2009 SCMR 407; 2011 SCMR 1127; 2015 SCMR 155; 2016
SCMR 274 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Chance
witness--Testimony of such witness requires cautious scrutiny and is not
accepted unless he gives satisfactory explanation of his presence at or near
place of occurrence at relevant time. [P.
273] J
1978 SCMR 114; 1995 SCMR 896; 2004 SCMR 755;
2008 SCMR 158; 2015 SCMR 1142; 2020 SCMR 1850 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Dishonest
improvements--Deliberate and dishonest improvements made by a witness in his
statement to strengthen prosecution case cast serious doubts on his
veracity--Improved statement subsequently made cannot be relied upon as
witness. [Pp. 273 & 274] K
& L
2018 SCMR 6; PLD 1963 (W. P.)
----Ss. 302(b)/392/34--Qatl-i-Amd--Recovery--Seat-cover of
recovered motorcycle was blood-stained--Investigating officer would have sent
same for examination by Chemical Examiner for ascertaining whether blood-stain
is that of human blood--In absence of reports of Chemical Examiner and
Serologist on these facts, assertion of investigating officer as to use of said
motorcycle in commission of crime carries no legal worth. [P. 275] M
----Ss. 302(b)/392/34--Qatl-i-Amd--Recovery--Memo of
identification--Three daughters would have been best persons to identify gold
ornaments--y would definitely have seen those ornaments in their use. [P. 279] N
-----Ss. 302(b)/392/34 PPC--Qatl-i-Amd--Recovery--Court disbelieved
alleged recovery of blood-stained weapon of offence, i.e. a chaff cutter
(Toka), made after about one month of occurrence--It is normal practice and
conduct of culprits that when they select night time for commission of such
crime, their first anxiety is to conceal their identity so that they may go
scot-free unidentified and in that course they try their level best to conceal
or destroy each piece of evidence incriminating in nature which, might be used
against them in future. [P. 280] R
& S
2017 SCMR 344; 2017 SCMR 486 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Corroborative evidence--When
substantive evidence fails to connect accused person with commission of offence
or is disbelieved, corroborative evidence is of no help to prosecution as
corroborative evidence cannot by itself prove prosecution case. [P. 285] T
1985 SCMR 410; 2003 SCMR 868; 2007 SCMR
1427;
2018 SCMR 2092 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Recovery--When no grouping
of blood was made with blood-stained clothes of deceased to create a nexus between
two, same is of no help to prosecution. [P.
285] V
2015 SCMR 840 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Recovery--Court discarded prosecution
evidence of recovery of blood-stained alleged weapon of offence, i.e.,
dagger and knife (Churri), and of blood-stained clothes of accused
persons in absence of matching report of blood-stains with blood group of
deceased. [P. 286] W
2003 SCMR 1419 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Recovery--Recovery of
blood-stained clothes of accused as an incriminating piece of evidence while
observing that blood-stains on recovered clothes were not got matched with
blood of deceased. [P. 286] W
2011
SCMR 1233 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Recovery--Mere sending crime
weapons, blood-stained, to chemical examiner and serologist would not serve
purpose of prosecution nor it will provide any evidence to inter link different
articles unless blood-stained earth or cotton and blood-stained clothes of
victim are not sent with same for opinion of serologist to effect that it was
human blood on crime weapons and was of same group which was available on
clothes of victim and blood-stained earth/cotton, such inconclusive opinion
cannot be used as a piece of corroboratory evidence. [P.
286] X
2017
SCMR 486 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Recovery--Expert report--In
absence of a positive report of Forensic Science Laboratory as to matching of
crime empty with allegedly recovered firearm from an accused person, recovery
of alleged weapon of offence cannot be considered as corroborative piece of
evidence against that accused person.
[P.
286] Y
2017
SCMR 135 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Medical evidence--Medical
evidence by itself does not throw any light on identity of offender. Such
evidence may confirm available substantive evidence with regard to certain
facts including seat of injury, nature of injury, cause of death, kind of
weapon used in occurrence, duration between injuries and death, and presence of
an injured witness or injured accused at place of occurrence. [P. 287] Z
PLD 1976 SC 53; PLD 1976 SC 695; 1994 SCMR
1928; 1995 SCMR 127; 1997 SCMR 866; PLD 2004 SC 663; 2004 SCMR 1185; 2006 SCMR
1786; 2007 SCMR 1549; 2008 SCMR 1103;
2017 SCMR 986 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Benefit of that doubt--Benefit
of that doubt is to be given to accused person as of right, not as of
concession. [P.
289] CC
1995 SCMR 1345 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Benefit of that doubt--It is
better that ten guilty persons be acquitted rather than one innocent person be
convicted. [P.
289] DD
----Ss. 302(b)/392/34 PPC--Qatl-i-Amd--Benefit of that doubt--In
Islamic criminal law it is based on high authority of sayings of Holy Prophet
of Islam (peace be upon him): “Avert punishments [hudood] when there are doubts”. [P. 289] DD
2008 PCr.LJ 971 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Benefit of that doubt--If
there is any place of refuge for him [accused], let him have his way, because
leader’s mistake in pardon is better than his mistake in punishment. [P. 289] EE
1987 PCr.LJ 2173 ref.
----Ss. 302(b)/392/34--Qatl-i-Amd--Benefit of that
doubt--Mistake of Qazi (Judge) in releasing a criminal is better than his
mistake in punishing an innocent. [P.
289] FF
PLD
2002 SC 1048 ref.
Syed Rifaqat Hussain Shah,
AOR for Petitioners.
Nemo for Complainant.
Mirza Abid Majeed, DPG,
Date of hearing: 7.12.2020.
Judgment
Syed Mansoor Ali Shah, J.--On
January 21, 2010 Parvez Akhtar, a retired WAPDA employee, his wife Firdous
Kausar, his daughters Ghazala and Bushra and his granddaughter Zarmina were
mercilessly murdered in their house, their throats slit open by a sharp edged
weapon. One Mirza Muhammad Umar told the complainant, Mobeen Akhtar, the bother
of the deceased Pervaiz Akhtar, that a night before at about 08:30 p.m. he had
seen three persons with a motorcycle outside the house of Pervaiz Akhtar. Mobeen
Akhtar reported these facts to the Police and that apparently his deceased
brother had no enmity with anyone. First information report (FIR)[1]
of the tragic incident was recorded with these brief facts. Mirza Muhammad
Umar, in his statement to the Police, narrated that he could not recognize
those three persons as there was darkness in the street at that time. During
investigation, the investigating officer suspected it to be a robbery that
ended with five brutal murders.
2. On January 24, 2010 one Fazal Karim[2]
told the Police that in the evening of January 20, 2010 he had seen Qadeer
Ahmad, the son-in-law of the deceased Pervaiz Akhtar, along-with two other boys
going towards Dhok Tama (the locality where the house of the deceased
Pervaiz Akhtar was situate) on a motorcycle. The Police arrested Qadeer Ahmad,
Khurram Shahzad and Naveed Asghar (“petitioners”) on January 31, 2010 and
recovered two blood-stained knives (the alleged weapons of offence), a
motorcycle (allegedly used by the accused persons for coming to the place of
occurrence), mobile phones, a laptop, three cameras, an amount of cash amount,
gold ornaments and some Defence Saving Certificates (the alleged looted
property). An application was made for recording confessional statement of the
accused, Naveed Asghar, but it was turned down by the Magistrate with the
observation that the accused appeared to be under pressure of the Police.
3. With the said incriminating material, the petitioners were
sent up for trial. The learned trial Court convicted them, vide its
judgment dated 22.01.2011, for the offences of house trespass, robbery and
murder, and sentenced each of them to three years rigorous imprisonment with
fine of Rs. 10,000/-under Section 452, of the Pakistan Penal Code, 1860
(“PPC”); five years rigorous imprisonment with fine of Rs. 10,000/-under
Section 392, PPC; and death on five counts under Section 302(b), PPC read with
Section 34, PPC. Each of them was also directed to pay compensation of Rs.
100,000/-to the legal heirs of the deceased persons, under Section
544-A,Cr.P.C. The High Court dismissed the jail-appeal filed by the petitioners
and confirmed the death sentence, vide its judgment dated 12.02.2016.
Hence, this jail petition is filed by the petitioners for leave to appeal.
4. The main contentions of the learned counsel for the
petitioners are that: the occurrence was unseen and the petitioners has falsely
been involved in the case; the circumstantial evidence produced by the
prosecution is totally insufficient to connect the petitioners with the
commission of offences; the learned Courts below have wrongly relied upon the
incredible testimony of Muhammad Umar (PW-13) and fake recoveries of alleged
weapons of offence and looted property; and, the High Court has not appreciated
the prosecution-evidence in depth and has referred to the prosecution-evidence
in a cursory and casual manner for confirmation of death sentence. Learned
counsel for the State, on the other hand, has supported the judgments of the
Courts below, which according to him are well-reasoned and therefore do not
merit interference.
5. Submissions of the counsel for the parties and examination
of the record of the case with their able assistance give rise to the following
points of law for our consideration: what is the nature, scope and extent of
reappraisal of evidence by the High Court while hearing an appeal and a reference
sent by the trial Court for confirmation of the death sentence; whether it was
necessary to complete the chain of the circumstantial evidence in order to
connect the accused with the commission of the offence; whether reliance could
be placed on a testimony of a witness who made improvements in his statement;
whether recovery of the alleged stolen property without their prior
identification or in absence of any proof that they were owned by the deceased
persons could connect the accused with the commission of offence; whether
recovery of the alleged weapons of offence, viz, blood-stained knives, without
a positive forensic report as to matching the blood-stains found thereon with
the blood of any of the deceased persons could connect the accused with the
commission of offence; and, whether medical evidence, viz, postmortem reports
etc., could corroborate the other prosecution evidence against the petitioners.
Reappraisal of evidence by the High
Court in deciding the appeal and the reference for confirmation of death
sentence
6.
Normally, the High Courts hear and decide the appeal filed by the convicted
person and the reference sent by the trial Court for confirmation of the death
sentence, together. It has been noticed that while doing so the learned Judges
of the High Courts sometimes, as it appears to have done in the present case,
remain content with examining and deciding only the arguments and contentions
advanced in appeal, and do not by themselves scrutinize the whole material
available on record of the case. Apart from deciding those arguments and
contentions, it is incumbent upon the High Courts, in discharge of their
statutory duty under Sections 375 and 376 of the Code of Criminal Procedure,
1898 (“Cr.P.C.”), to read and appraise each and every piece of evidence, and to
examine also whether any evidence has been improperly admitted or excluded, or
has been misread or non-read by the trial Court. Even non-filing of appeal or
withdrawal of appeal by the convicted person,[3]
or any concessional statement by the state counsel[4]
does not relieve the High Court from performing its duty of reappraising the
whole evidence available on record. Ordinarily, in a criminal appeal against
conviction, the appellate Court, under Section 423 of the Cr.P.C., can dismiss
the appeal if the Court is of the opinion that there is no sufficient ground
for interference, after examining all the grounds urged before it for
challenging the correctness of the decision given by the trial Court. It is not
necessary for the appellate Court to examine the entire record for the purpose
of arriving at an independent decision of its own whether the conviction of the
appellant is fully justified. The position is, however, different where the
appeal is by an accused who is sentenced to death, so that the High Court
dealing with the appeal has before it, simultaneously with the appeal, a
reference for confirmation of the capital sentence under Section 374 of the
Cr.P.C. On a reference for confirmation of sentence of death, the High Court is
required to proceed in accordance with Sections 375 and 376 of the Cr.P.C. and
the provisions of these Sections make it clear that the duty of the High Court,
in dealing with the reference, is not only to see whether the order passed by
the trial Court is correct, but to examine the case for itself and even direct
a further enquiry or the taking of additional evidence if the Court considers
it desirable in order to ascertain the guilt or the innocence of the convicted
person.[5]
7.
Section 374 of the Cr.P.C. provides that when the Court of Session passes
sentence of death, the proceedings shall be submitted to the High Court and the
sentence shall not be executed unless it is confirmed by the High Court. As the
death sentence passed by the trial Court, i.e., the Court of Session,
cannot be executed without being it confirmed by the High Court, proceedings
before the High Court on reference under Section 374, Cr.P.C. is yet another
tier of judicial assessment of the evidence to examine “any point bearing upon
the guilt or innocence of the convicted person.” The High Court has been given
very wide powers to prevent any possible miscarriage of justice. The
proceedings are a reappraisal and reassessment of the entire facts of the case
and of the law applicable. This extensive power actually casts an onerous duty
on the High Court to ensure safe administration of criminal justice by
considering in the reference proceedings all aspects of the case and coming to
an independent conclusion, apart from the view expressed by the Court of
Session. The High Court has to decide on reappraisal of the whole evidence
whether the conviction is justified and, having regard to the circumstances of
the case, whether the sentence of death is appropriate.[6]
8. As back as in the year 1921, Madgaonkar, A.J.C., while
exploring the scope of power of High Court in confirmation proceedings under
Section 374 in the case of Gul v. Empror,[7]
observed that the worth and sanctity of human life are a test and mark of
civilized societies, and are increasingly reflected in the criminal
jurisprudence. The Legislature has provided, he noted, in confirmation
proceedings a final safeguard and has laid this duty upon the High Court. The
duty of judgment is laid in the first instance upon the trial Judge. But
equally and with all that weight, the High Court in confirmation proceedings
must finally weigh for itself the whole evidence, and is to confirm the
conviction and sentence or make any other order according to its own final
conclusion on the guilt or innocence of the sentenced person in the discharge
of the duty laid upon it by law. These significant observations of the learned
Judge become more nuanced when viewed in the constitutional context. Right to
life and liberty, right to fair trial and right to dignity are fundamental
rights guaranteed under Articles 9, 10A and 14 of the Constitution. The
importance of human life goes to the heart of these fundamental rights, the
rigorous two-tiered process of appraisal, assessment and examination under
Section 374 Cr.P.C. also meets the test of these fundamental rights. The duty
cast on the High Court in deciding a murder reference under Section 374 Cr.P.C.
is a heavy one and can only be discharged once the entire evidence is
reappraised to fully exhaust all the points having a bearing upon the guilt or
innocence of the convicted person.
9. The High Court, in the present case, has made only a general
and cursory reference to the prosecution evidence in its judgment, and has
failed to reappraise it thoroughly. In such a situation, we would have
ordinarily remanded the matter to the High Court to hear and decide the case
afresh, but in the present case much water has flown under the bridge. Remand
will entail further delay and hardship, besides, the points of law noted above
also require a clear determination by this Court. We, therefore, decided to
answer those points of law and to reappraise the prosecution evidence ourselves
for safe administration of criminal justice.
Heinous nature of allegations and
appraisal of evidence
10.
The ruthless and ghastly murder of five persons is a crime of heinous nature;
but the frightful nature of crime should not blur the eyes of justice, allowing
emotions triggered by the horrifying nature of the offence to prejudge the
accused. Cases are to be decided on the basis of evidence and evidence alone
and not on the basis of sentiments and emotions.[8]
Gruesome, heinous or brutal nature of the offence may be relevant at the stage
of awarding suitable punishment after conviction; but it is totally irrelevant
at the stage of appraising or reappraising the evidence available on record to
determine guilt of the accused person, as possibility of an innocent person
having been wrongly involved in cases of such nature cannot be ruled out.[9]
An accused person is presumed to be innocent till the time he is proven guilty
beyond reasonable doubt, and this presumption of his innocence continues until
the prosecution succeeds in proving the charge against him beyond reasonable
doubt on the basis of legally admissible, confidence inspiring, trustworthy and
reliable evidence. No matter how heinous the crime, the constitutional
guarantee of fair trial under Article 10A cannot be taken away from the
accused. It is, therefore, duty of the Court to assess the probative value
(weight) of every piece of evidence available on record in accordance with the
settled principles of appreciation of evidence, in a dispassionate, systematic
and structured manner without being influenced by the nature of the
allegations. Any tendency to strain or stretch or haphazardly appreciate
evidence to reach a desired or popular decision in a case must be scrupulously
avoided or else highly deleterious results seriously affecting proper
administration of criminal justice will follow.[10]
It may be pertinent to underline here that the principles of fair trial have
now been guaranteed as a Fundamental Right under Article 10-A of the
Constitution and are to be read as an integral part of every sub-constitutional
legislative instrument that deals with determination of civil rights and
obligations of, or criminal charge against, any person.
Standard
of care required for relying on circumstantial evidence
11. The occurrence in the present case is unseen one, and the
case of the prosecution against the petitioners is wholly based on the
following circumstantial evidence: (i) last seen evidence of Mirza Muhammad
Umar (PW-13); (ii) recovery of a motorcycle allegedly used for reaching the
place of occurrence; (iii) recovery of the alleged stolen property; (iv)
recovery of the alleged blood-stained weapons of offence and gloves; and (v)
medical evidence as to post mortem examination of the deceased persons. Before
examining the said circumstantial evidence, we think it necessary to state the
standard of care required for relying on circumstantial evidence and the
approach to determine sufficiency of such evidence for reaching the conclusion
of guilt of an accused person.
12. Circumstantial evidence may sometimes be conclusive, but it
must always be narrowly examined. In cases like the present one that rest
entirely on circumstantial evidence, it is of the utmost importance that the
circumstances should be ascertained with minute care and caution, before any
conclusion or inference adverse to the accused person is drawn. The process of
inference and deduction involved in such cases is of a delicate and perplexing
character, liable to numerous causes of fallacy. This danger points the need
for great caution in accepting proof of the facts and circumstances, before
they are held to be established for the purpose of drawing inferences
therefrom. A mere concurrence of circumstances, some or all of which are
supported by defective or inadequate evidence, can create a specious
appearance, leading to fallacious inferences. Hence, it is necessary that only
such circumstances should be accepted as the basis of inferences that are, on
careful examination of the evidence, found to be well-established. A high
quality of evidence is, therefore, required to prove the facts and
circumstances from which the inference of the guilt of the accused person is to
be drawn.[11]
13.
There are chances of fabricating evidence in cases that are based solely on
circumstantial evidence; therefore, the Court, in such cases, should take extra
care and caution to examine the evidence with pure judicial approach on strict
legal standards to satisfy itself about its proof, probative value and
reliability. When there are apparent indications of possibility of fabricating
evidence by the investigating officer in making the case, the Court must be
watchful against the trap, which may misled to drawing a false inference, and
satisfy itself about the fair and genuine collection of such evidence. The
failure of the Court to observe such care and caution can adversely affect the
proper and safe administration of criminal justice.[12]
Approach to determine sufficiency of
circumstantial evidence
14. The settled approach to deal with the question as to
sufficiency of circumstantial evidence for conviction of the accused person is
this: If, on the facts and circumstances proved, no hypothesis consistent with
the innocence of the accused person can be suggested, the case is fit for
conviction of the accused person on such conclusion; however, if such facts and
circumstances can be reconciled with any reasonable hypothesis compatible with
the innocence of the appellant, the case is to be treated one of insufficient
evidence, resulting in acquittal of the accused person.[13]
Circumstantial evidence, in a murder case, should be like a well-knit chain,
one end of which touches the dead body of the deceased and the other the neck
of the accused. No link in chain of the circumstances should be broken and the
circumstances should be such as cannot be explained away on any reasonable
hypothesis other than guilt of accused person. Chain of such facts and
circumstances has to be completed to establish guilt of the accused person
beyond reasonable doubt and to make the plea of his being innocent incompatible
with the weight of evidence against him. Any link missing from the chain breaks
the whole chain and renders the same unreliable; in that event, conviction cannot
be safely recorded, especially on a capital charge.[14]
Therefore, if the circumstantial evidence is found not of the said standard and
quality, it will be highly unsafe to rely upon the same for conviction; rather,
not to rely upon such evidence will a better and a safer course.[15]
Last
seen evidence of Mirza Muhammad Umar (PW-13)
15. In the present case, the first
link in the chain of circumstantial evidence relied upon by the prosecution is
the last seen evidence of Mirza Muhammad Umar (PW-13). The said witness while
appearing in the witness-box deposed that on 20.01.2010 at about 08:00 or 08:30
p.m. he was passing by in front of the house of the deceased, Pervaiz Akhtar.
He saw three persons there who had worn shawls (Chaddar) over
themselves. A motorcycle High Speed 70 was also parked there. The said three
persons knocked the door of house of the deceased, Pervaiz Akhtar. The door was
opened, and the said three persons went inside the house along-with the
motorcycle. He further stated that the three accused persons present in the
Court were the same persons. This was his statement made in
examination-in-chief. He explained in cross-examination that on 20.01.2010 when
he happened to pass by in front of the house of the deceased, Pervaiz Akhtar,
he was going from his house to “Wattay di Dari” for condolence on the death of
the father of some person known to him. He stated that he did not know the name
of the person on whose death he went to condole. He denied the suggestion put
to him that he did not know the name of that deceased person because no such
death had taken place. He stated that the village “Wattay di Dari” was at a
distance of about one kilometer from his house. On questioning about
identification of the accused person, he explained that the accused person
though had put on shawls (Chaddar) at that time but their faces were visible.
There was light, not darkness, at that time in front of the house of the
deceased, Pervaiz Akhtar. He had not mentioned the names of the accused persons
in his statement to the police. He did not know the names of the accused person
at that time. He had not mentioned the description, the age and colour of the
complexion, of the accused person to the police. He was specifically asked,
which he denied, that in his statement before the police he had mentioned that
because of darkness he could not identify the accused persons. Then, he was
duly confronted with his statement (Exh-DE) made to the investigating officer
under Section 161, Cr.P.C., and it was noted by the trial Court that it was so
recorded in that statement. Then, he denied the suggestion put to him that he
had deposed about identification of the accused persons only on instruction of
the prosecution.
16.
Effect of
material improvements made by a witness
17.
Deliberate and dishonest improvements made by a witness in his statement to
strengthen the prosecution case cast serious doubts on his veracity, and makes
him untrustworthy and unreliable. It is quite unsafe to rely on testimony of
such witness, even on facts deposed by him other than those improvements unless
it receives corroboration from some other independent piece of reliable
evidence.[17]
In the case of Shahzada v. Hamidullah,[18]
a five-member Bench of this Court, on appraising the evidence of a witness,
found that he had improved upon the version he had earlier given to the police
while making statement in Court, and upon such finding held that the
improvement had affected his veracity rendering it unsafe to rely upon his
evidence. Hamoodur Rahman, J., speaking for the Bench observed: “[The witness]
also tried to improve upon the version he earlier gave to the police by
introducing the story of his having seen the [accused] respondent Hamidullah
actually loading his gun in the middle of the bazar. In his police statement he
had only stated that when he saw Hamidullah first he appeared to be proceeding
to the shop of the deceased to purchase snuff. This definite attempt at
embellishment clearly affected his veracity and rendered it unsafe to rely upon
his evidence.” In the case of Akhtar Ali v. State,[19]
the complaint initially made statement that four unknown persons had committed
the offence and did not name any person therein, but subsequently nominated the
accused persons in his supplementary statement despite the fact that one of the
accused person was already known to him. A four-member Bench of this Court,
which heard the case, noted with concern that improvement made by the complaint
even during investigation and discarded his testimony making the observations
that “when a witness improves his version to strengthen the prosecution case,
his improved statement subsequently made cannot be relied upon as the witness
has improved his statement dishonestly, therefore, his credibility becomes
doubtful.”
18.
Mirza Muhammad Umar (PW-13) stated to the investigation officer in his statement
(Ex-DE) recorded under Section 161, Cr.P.C. that due to darkness he could not
recognize the accused persons when he saw them standing at the door of the
house of the deceased, Pervaiz Akhtar; but in his statement in Court he said
that the accused persons were those whom he saw at the door of the deceased,
Pervaiz Akhtar. He stated also that there was light, not darkness, at the door
of the house of the deceased, Pervaiz Akhtar at that time. This was a very
glaring and material improvement made by the witness. He admitted in
cross-examination that he had not mentioned any identifying features, like age,
height, colour of their complexion etc., of those persons in his that
statement. If he had really seen and recognized the persons standing at the
door of the deceased, Pervaiz Akhtar, he would definitely have described their
identifiable features to the investigating officer. And had he described such
recognizable features of those persons, the investigating officer would have
got conducted the test identification of the accused persons on their arrest in
the case. This deliberate and dishonest improvement made by the witness makes
him unreliable. The observation of the High Court that the value of his
testimony is not diminished despite the said improvement is totally flawed and
untenable.
Recovery of motorcycle allegedly
used for reaching the place of occurrence
19. The second incriminatory circumstantial evidence relied
upon by the prosecution is the recovery of a motorcycle, Speed Smart CD SR-70,
that is alleged to have been used by the petitioners for reaching the place of
occurrence. Sub-Inspector Fazal Hussain, the investigating officer, appeared in
the witness-box as PW-16. About the said recovery, he stated that on 27.01.2010
he raided the house of the accused Qadeer at Langurpur Baily. The accused
Qadeer was not found there. One Bashir, the brother of the accused Qadeer, met
there and led to the recovery of the motorcycle from his house. Bloodstains
were found present on the seat-cover of the motorcycle. He took the motorcycle
into his possession vide recovery-memo (Exh-PR), which was owned by the
accused Khurram Shahzad. In cross-examination, he explained that the
semi-washed blood-stains on the seat-cover of the motorcycle suggested use of
the said motorcycle in the commission of crime. He admitted that he did not
send the blood-stained part of the seat of the motorcycle for examination to
the Chemical Examiner. He denied the suggestion that there were no blood-stains
on the seat of the motorcycle. He stated that on 27.01.2010 he had no proof of
ownership of the motorcycle; Bashir, brother of the accused Qadeer, told him
that motorcycle was of the accused Khurram Shahzad. He admitted that throughout
the investigation he did not collect any proof as to ownership of the
motorcycle. He also admitted that he did not prepare the site-plan of the place
from which the motorcycle was recovered. He denied the suggestion that the
site-plan was not prepared as the motorcycle was not recovered from the house of
the accused Qadeer in village Langarpur Baily. The recovery witness, Waheed
Ahmad, 459/c (PW-9) made similar statement as to proceedings of the recovery of
the motorcycle.
20. By close examination of the prosecution-evidence as to the
recovery of that motorcycle as well as the assertion that the same was used in
commission of the crime, we have noticed that no specification of the
motorcycle, i.e., its make, colour, power-70, 100 or 125, or
registration number was mentioned in the FIR. Therefore, it cannot be said with
certainty that it is the motorcycle that Mirza Muhammad Umar (PW-13) saw with
the persons outside the house of the deceased Pervaiz Akhtar and was mentioned
in the FIR. The statement of the investigating officer (PW-16) that the
seat-cover of the recovered motorcycle was blood-stained and this fact
suggested that it was the same motorcycle that was used in the crime is not
found confidence-inspiring; had the seat-cover of the motorcycle been really
blood-stained, the investigating officer would have sent the same for
examination by the Chemical Examiner for ascertaining whether the blood-stain
is that of human blood and whether that blood-stain matches with the blood of
any of the deceased persons or the accused persons. In absence of the reports
of the Chemical Examiner and the Serologist on these facts, the assertion of
the investigating officer as to use of the said motorcycle in commission of the
crime carries no legal worth. The failure on part of the investigating officer
to ascertain registration number and name of the registered owner of the
motorcycle is also fatal to his assertion that the recovered motorcycle is of
the accused Khurram Shahzad. He stated that Bashir brother of the accused
Qadeer told him that the motorcycle was of the accused Khurram Shahzad; but
neither the statement of the said Bashir to this effect was recorded in the
course of investigation under Section 161, Cr.P.C. nor was he examined as a
witness during trial about the alleged ownership of the accused Khurram Shahzad
as well as about the alleged recovery of the motorcycle on his pointation from
the house of the accused Qadeer. The non-preparation of the site-map of the
place of recovery of motorcycle adds further suspicion to the alleged recovery
of the motorcycle from the house of the accused Qadeer. The recovery of the
motorcycle, in view of the said omissions made by the investigating officer, is
found completely deficient as an incriminatory piece of circumstantial evidence
to connect the accused Qadeer or the accused Khurram Shahzad with the
commission of the offence.
Recovery
of gold ornaments etc alleged to be stolen property
21. Recovery of the alleged stolen or looted property is the
third link that the prosecution tried to join in the chain of circumstantial
evidence. Sub-Inspector Fazal Hussain, the investigating officer, (PW-16)
deposed that during the inspection of the place of occurrence he found empty
boxes of jewellery scattered there which indicated the commission of offence of
robbery; therefore, he also added Section 392, PPC to the crime report. He
arrested the accused persons, Khurram Shahzad, Qadeer and Naveed, on
31.01.2010, in a raid made at a snooker club in village Pakwal. On
interrogation, the accused persons made disclosure that they could lead to
recoveries. Firstly, the accused Qadeer led him to the recovery of gold
bangles, gold rings, gold locket, five currency notes of Rs. 1000, four
currency notes of Rs. 5000 and two Defence Saving Certificates of the deceased
Pervaiz Akhtar, from his rented house situated in village Pakwal. Thereafter,
the accused Khurram Shahzad led to the recovery of gold bangles, gold ring,
gold ear ring, gold chain, fourteen currency notes of Rs. 500, three Defence
Saving Certificates, one laptop, one movie camera and two still cameras, from
his house situated in village Aima Ilyas. Then the accused Naveed led to the
recovery of gold ring, pair of ear rings, pair of ear topes, fourteen currency
notes of Rs. 500, one Defence Saving Certificate, from his house situated in
village Jandal. He took the said recovered things into his possession, and
prepared their recovery-memos and site-plans of the places of recovery. In
cross-examination, he admitted that the fact of finding scattered empty boxes
of jewellery at the place of occurrence was not mentioned in the FIR, and he
did not take any such empty box into his possession. About interrogation of the
accused person and recoveries, he explained that he interrogated the accused
persons outside the snooker club for about one hour. From the snooker club they
first went to the house of the accused Qadeer. The accused Qadeer got key of
the main gate of the house from an old lady and then opened the gate. He
admitted that he did not mention this fact in the case dairy that the accused
Qadeer opened the gate by obtaining key from an old lady. He denied the
suggestion that the accused Qadeer had not hired any house, nor was any
recovery made on his pointation. About the recovery made from the house of the
accused Khurram Shahzad, he stated that nobody was present in the house of the
accused Khurram Shahzad; however, one woman came there and opened the lock of
the door. He admitted that he did not record statement of the said woman. As to
the recovery from the house of the accused Naveed Asghar, he said that four or
five women were there in the house of the accused Naveed Asghar when they
reached there. He stated that he did not join any person from the locality in
the recovery proceedings. He denied the suggestion that the whole recovery
proceedings were recorded fictitiously by him while sitting in the police
station, and that the accused persons were already in police custody and their
arrest was fictitiously shown to have been made on 31.01.2010. The
recovery-witness, Tahir Akhtar (PW-11) who is cousin of the complainant made
statement supporting the due conduct of the recovery proceedings, in his
examination-in-chief. He, however, could not tell the time when the recoveries
were made from the houses of the accused persons, Qadeer, Khurram Shahzad and
Naveed Asghar. He denied the suggestion that recoveries were planted on the
accused persons and nothing was recovered from them.
22. It may be said straight away without any deep deliberation
that the prosecution story of interrogation of the accused persons at the place
of their arrest and then leading of the accused persons from the very place of
their arrest to the recoveries of the alleged stolen property appears to be
intrinsically doubtful: it does not even fit in with the ordinary human
conduct. The accused persons who, as per the prosecution story, were enjoying
play snooker in a snooker club, admitted the commission of offence that may
entail death penalty forthwith on their arrest, and not only admitted the
commission of offence but also cooperated well to lead to the recovery of the
stolen property then and there. It is very hard for a prudent person to believe
such story. Non-mentioning the alleged fact of finding any scattered jewellery
boxes at the place of occurrence in the FIR shakes the foundation of the story.
Fazal Hussain, SI (PW-16) also stated in his examination-in-chief that crime
scene expert Masood Ahmad was summoned at the spot, who took photographs of the
dead bodies and the place of occurrence. Masood Ahmad appeared in the
witness-box as PW-7, and tendered the photographs of the deceased persons in
evidence as Exh-P1 to P5 and the photographs of the crime scene as Exh-P6 to
P10. All these photographs are available on record of the case. In none of the
photographs there are any scattered empty jewellery boxes. These photographs,
tendered in evidence by the prosecution itself, completely negate the alleged
fact of finding scattered empty jewellery boxes at the place of occurrence.
23. It was denied on behalf of the accused Qadeer by putting
suggestion in cross-examination to the investigating officer (PW-16) in the
terms that the accused Qadeer had not hired any house. The investigating
officer did not join in investigation the landlord of that alleged rented house
to bring on record the facts when the accused Qadeer had got the house on rent
from him, especially when as per its own version of the prosecution the accused
Qadeer was resident of the village, Langurpur Baily, from where the
investigating officer recovered the motorcycle allegedly used for reaching the
place of occurrence. Further, not associating the women in investigation, who
brought the keys of the houses of the accused persons Qadeer and Khurram
Shahzad, and even non-mentioning their names in the case dairy create dent in
the story of recoveries.
Recovery of alleged stolen property
in absence of prior description
24. Even otherwise, in absence of any description of the stolen
property given in the FIR, or in the supplementary statement of the complainant
or any witness recorded under Section 161, Cr.P.C., prior to the alleged
recovery, it cannot be said with certainty the recovered property is that which
was allegedly stolen.[20]
The recovered jewellery, the alleged stolen property, has been attempted to be
identified and proved as the one belonging to the deceased Pervaiz Akhtar by
the testimony of the goldsmith, Mehmood Ahmad (PW-12). The said witness (PW-12)
stated in his examination-in-chief that he identified the gold ornaments
produced before him by the investigating officer in the police station. The
said gold ornaments were got prepared from him by the deceased Pervaiz Akhtar.
On 07.08.2008, the deceased Pervaiz Akhtar got repaired the said gold ornaments
from him, and he had issued the receipt (Exh-PPP) at the time of receiving the
gold ornaments for repair. In cross-examination, he said that the receipt
(Exh-PPP) was not produced by him to the investigating officer. Record of the
case is silent from where the said receipt was found by the investigating
officer, or who tendered it to him. The goldsmith, Mehmood Ahmad (PW-12), did
not state the date when the deceased Pervaiz Akhtar had purchased the said gold
ornaments from him. He did not produce any receipt book of his shop showing any
entry of sale of gold ornaments to the deceased Pervaiz Akhtar, nor did he
bring with him, at the time of his testimony in Court, the receipt book
containing the entry of receiving the gold ornaments from the deceased Pervaiz
Akhtar for repair. His testimony is therefore of little value to prove that the
gold ornaments allegedly recovered from the accused persons really belong to
the deceased Pervaiz Akhtar. Tahir Akhtar (PW-11), the witness to the alleged
recoveries, who is the cousin of the complainant and of the deceased Pervaiz
Akhtar said in 
his
cross-examination that the deceased Pervaiz Akhtar had five daughters. Two
daughters of the deceased Pervaiz were killed in the 
incident
of the present case, but the remaining three daughters would have been the best
persons to identify the gold ornaments. If these ornaments had really belonged
to their deceased father Pervaiz Akhtar, they must have been in use of their
deceased mother or their deceased sisters and they would definitely have seen
those ornaments in their use. Similar is the position with the identification
of laptop and cameras, the alleged stolen articles. The investigating officer
neither got them identified from the daughters of the deceased Pervaiz Akhtar,
nor got done forensic audit of these articles from the expert concerned who may
have retrieved data therefrom indicating the person who were in use of these
cameras and laptop. Such failure on part of the investigating officer makes the
recovery of these articles, even if presumed to have been effected from the
accused persons, useless for the purpose of crafting any link in the chain of
circumstantial evidence against the petitioners to connect them with the
commission of offences of robbery and murders.
Recovery of mobile phones and sims
25.
As to the alleged recovery of the mobile phones of the deceased persons Bushra,
Ghazal and Zarmina, Fazal Hussain, SI, (PW-16) deposed that on 02.02.2010 after
making recoveries of the alleged weapon of offences at Manara Pulley the
accused Naveed Asghar produced the mobile phone of the deceased Bushra by
sending for the same from his house through his brother, and at the same place
the accused person Khurram Shahzad also produced two mobile phones of the
deceased persons, Zarmina and Ghazala by calling the same through his brother.
He further stated that he took the said mobile phones into his possession
vide recovery-memos, Exh-PLL and Exh-PNN. In cross-examination, he admitted
that he did not mention the fact of calling the mobile phones by the accused
persons at Manara Pulley from their houses through some third persons.
He admitted that the persons through whom the accused persons had sent for the
mobile phones were not associated in the investigation proceedings. He admitted
it also that the names and particulars of those persons who had brought the
mobile phones were not mentioned in the case dairy. He expressed his inability
to tell the names of those persons. We have also read the recovery-memos,
Exh-PLL and Exh-PNN. It is mentioned in the recovery-memo, Exh-PLL, that the
accused Naveed Asghar has got recovered from his house the mobile phone that
was in use of the deceased Bushra. Similarly, in recovery memo, Exh-PNN, it is
mentioned that the accused Khurram Shahzad has got recovered from his house the
two mobile phones that were in use of the deceased persons, Zarmina and
Ghazala. The clear contradiction in the oral stance of the investigation
officer (PW-16) and the proceedings of recovery reduced into writing by him in
the recovery memos (Exh-PLL and Exh-PNN) makes the recoveries doubtful. It is
not understandable how did the accused persons who were in police custody call
their brothers to bring the mobile phones at a place where they were making
recoveries of the alleged weapons of offence, i.e., Manara Pulley,
not in the police station, and why did they not get those mobile phones
recovered on 31.01.2010 when, as per version of the prosecution, they got
recovered the other stolen articles from their houses. It is also not
consistent with the normal human conduct that the offenders would have taken
the mobiles phones of some of the deceased persons, and had left the mobile
phone of the deceased Pervaiz Akhtar laying it on a conspicuous place, i.e.,
on a table beside the dead body of the deceased Pervaiz Akhtar. Non-mentioning
the theft of the mobile phones of the deceased persons in the FIR or in the
supplementary statement of the complainant, non-joining in investigation the
brothers of the accused persons who had allegedly brought the mobile phones,
and not bringing on record their names and the details as to the place from
where they got the said mobile phones, all these omissions, also make these
alleged recoveries unreliable.
26. The
prosecution has also attempted to connect the accused Khurram Sahzad with the
commission of offence with the assertions that mobile phone having sims number
0333-5841554 and 0332-5801685 was recovered from him on his arrest on
31.01.2010 as per recovery-memo, Exh-PEE, and that the sim bearing number
0332-5801685 was used from 27.01.2010 to 28.01.2010 in the phone set bearing
IMEI No. 354176029652580 of the deceased Bushra, as per the calls data
(Exh-PTT). These assertions has been made on behalf of the prosecution during
arguments in the Courts below as well as in this Court, and was not stated as
facts by the complainant (PW-15) and the investigating officer (PW-16) in their
statements while appearing in the witness-box; therefore, the accused persons
could not get opportunity to test the veracity of the said facts in cross-examination.
Nor was this fact with the said specification put to the accused Khurram
Shahzad in his statement recorded under Section 342 of the Cr.P.C., and he,
therefore, could not explain his stance to the prosecution evidence on it
against him. Although the said assertions of the prosecution, which appears to
have greatly influenced the mind of the Courts below against the accused
persons, cannot be entertained on these grounds only, but the close scrutiny of
the prosecution evidence relied upon for making the said assertions also shows
several flaws in it to connect the accused Khuram Shahzad with the commission
of offence. Firstly, the empty box of a mobile phone set bearing IMEI No.
354176029652580 is alleged to have been tendered by the complainant to the
investigating officers on 21.01.2010, the day on which the FIR was registered,
the investigating officer (PW-16) made site inspection, and the crime scene
expert (PW-7) took photographs of the place of occurrence. But the fact of
finding the said empty box was not mentioned in the FIR, nor was it noticed by
the investigating officer during site inspection, nor was it captured by the
crime scene expert while taking the photographs of the place of occurrence. Had
it really been there at the place of occurrence on 21.01.2010, the
investigation officer himself, not waiting for its tendering by the
complainant, would have taken it into his possession. Secondly, the complainant
(PW-15) stated that the said empty box was of mobile phone Nokia which was
owned by the deceased Zarmina Mehak but was in use of the deceased Bushra.
However, he did not state how did he came to know about these facts on
21.01.2010 when the investigating officer had not yet even applied for
obtaining the calls data of the sims of the deceased persons. Thirdly, as per
the calls data (Exh-PTT), on 27.01.2010 two outgoing calls were made from a
phone set bearing IMEI No. 354176029652580 with sim number 0332-5801685 to some
person having sim number 0345-5526628 and on 28.01.2010 two outgoing calls were
made to some person having sim number 0303-5431302, one outgoing call to and
one incoming call from some person having sim number 0301-5826884, and one
outgoing call to some person having landline number 54-4656497. But none of the
said persons were joined in investigation to bring on record who had made those
calls to them from that phone, nor was the record as to registered owner of the
sim number 0332-5801685 obtained. Therefore, it cannot be said with certainty
that the accused Khurram Shahzad used the mobile phone bearing IMEI No.
354176029652580 and made calls to those persons with sim number 0332-5801685,
on January 27 and 28, 2010. Lastly but very importantly a fact has been noted,
which coupled with the said noted flaws makes the whole story of recording
supplementary statement of the complainant as to finding scattered jewellery
boxes, his tendering the empty box of mobile phone and addition of the offence
of robbery punishable under Section 392, PPC in the case by the investigating
officer on 21.01.2010 untrustworthy and unreliable. It is this: Admittedly the
investigating officer received the clothes of the deceased persons after their
postmortem examination on 22.01.2010 and took the said clothes in his
possession as a piece of evidence in the case vide recovery memos
(Exh-PP, PQ, PT, PU and PV) dated 22.10.2010. In all these five recovery memos
prepared on 22.01.2010 the offence of robbery punishable under Section 392, PPC
is not mentioned; this fact clearly shows that the section relating to the
offence of robbery, i.e, Section 392, PPC had not been added in the case
till 22.01.2010. Then mentioning of Section 392, PPC on the recovery memo
(Exh-PRR) purportedly prepared on 21.01.2010 as to recovery of empty box of a
mobile phone bearing IMEI No. 354176029652580 makes that recovery and the
recovery proceedings entirely doubtful.
Recovery of the blood-stained
weapons of offence and gloves
27. The fourth incriminatory circumstantial evidence relied
upon by the prosecution is the recovery of the blood-stained weapons of
offence, i.e., two knives (Churri), and gloves allegedly made on
pointation of the accused persons during investigation. Statement of Fazal
Hussain, SI (PW-16) about the said recovery is as follows. He stated that he
arrested the accused persons, Khurram Shahzad, Qadeer and Naveed, on 31.01.2010
and obtained their physical remand on 01.02.2010 for five days. On 02.02.2010
during investigation, the accused persons disclosed that they could lead to
recovery from underneath Manara Pulley. In pursuance to the disclosure
of the accused persons he took them to Manara Pulley situated on
28.
It may be stated at the outset of the appraisal of the prosecution evidence as
to the recoveries of the knives (Churri), the alleged weapons of
offence, that it is quite astonishing that both Tahir Akhtar (PW-11) and Gul
Awaiz were close relatives of the complainant reached the police station at the
time when the investigating officer planned to make a raid for arrest of the
accused persons and also when 
the
accused persons were ready to cooperate for making recoveries during investigation,
and thus become witnesses to all the recoveries made on 27.01.2010, 31.01.2010
and 02.02.2010. The story becomes further doubtful when we notice that the
particulars of these witnesses are written on the recovery-memos (Exh-PKK,
Exh-PMM and Exh-POO) in handwriting patently different from all other writings
thereon. It indicates that the particulars of the witnesses were added and
their signatures obtained subsequently on the already prepared recovery memos.
There were, as per version of the investigating officer, 7/8 shops and two
villages near the place of alleged recoveries, but no person from those nearby
shops and villages was associated in the recovery-proceedings. We are aware of
the fact that the persons from the general public usually do not come forward
to be witness to such police proceedings, but the assertion of the
investigating officer that no person of the locality other than the said
witnesses was there to see the proceedings that allegedly continued for about
three hours of the day from about 02:15 to 5:00 p.m. makes the proceedings
further doubtful. The story of wrapping up blood-stained knives, the alleged
weapons of offence, and gloves into polythene shopper bags and then burying
them in the ground close to a water stream by the offenders, for a future
recovery therefrom, instead of throwing them into that water stream or a nearby
river also does not appeal to a prudent mind. 
In
the case of Sardar Bibi v. Munir Ahmed,[21]
this Court disbelieved the alleged recovery of blood-stained weapon of offence,
i.e. a chaff cutter 
(Toka),
made after about one month of the occurrence, with the observations that “it is
not expected from an accused person to keep such weapon (stained with blood) as
souvenir because during the said period there was ample time to destroy or at
least washout the said weapon.” Similarly, in the case of Muhammad Asif v.
State[22]
this Court did not believe the alleged recovery of weapon of offence, i.e.,
a dagger, 
observing
that it is “normal practice and conduct of culprits that when they select night
time for commission of such crime, their first anxiety is to conceal their
identity so that they may go scot-free unidentified 
and
in that course they try their level best to conceal or destroy each piece of
evidence incriminating in nature which, might be used against them in the
future thus, human faculty of prudence would not accept the present story [of
recovering the dagger from the shop of the appellant] rather, after committing
crime with the dagger, the appellant could throw it away anywhere in any field,
water canals, well or other place and no circumstances would have chosen to
preserve it in his own shop if believed so because that was susceptible to
recovery by the police.”
Recovery of
weapon of offence, a corroborative evidence
29.
Even otherwise, recovery of weapon of offence is only a corroborative piece of
evidence; and in absence of substantive evidence, it is not considered
sufficient to hold the accused person guilty of the offence charged. When
substantive evidence fails to connect the accused person with the commission of
offence or is disbelieved, corroborative evidence is of no help to the
prosecution as the corroborative evidence cannot by itself prove the
prosecution case.[23]
A four-member Bench of the Federal Court of Pakistan[24]
while reappraising the circumstantial evidence in Siraj v. Crown,[25]
held that two out of three circumstances had not been proved while the third,
namely, recovery of the blood-stained handle of hatchet, that had been alleged
to be weapon of offence, was insufficient to form the basis of a conviction.
Muhammad Munir, C.J., speaking for the Bench said: “The circumstance that the
appellant [accused] produced the handle of a hatchet, which had stains of human
blood on it, is by itself plainly insufficient to prove that the, appellant
[accused] committed the murder in question.” Likewise, in Saifullah v. State[26]
a four-member Bench of this Court held the recovery of a blood-stained knife,
the alleged weapon of offence, insufficient for conviction on excluding the
testimony of alleged eyewitness from consideration and finding the occurrence
as an unseen one. The Court observed: “Considering all the facts on the record
we are of the view that it was an unwitnessed occurrence ... We have therefore
no option but to exclude the testimony of the aforementioned two witnesses from
consideration with the result that no evidence is left on the record to connect
the accused with the crime in question, as the recovery of the blood-stained
knife, even if believed, could only be used as evidence corroborating the
testimony of the eye-witnesses, if any. But since evidence of the eye-witnesses
in this case has been excluded this recovery is hardly of any use.”
Evidentiary value of a blood-stained
alleged weapon of offence without a forensic report matching the blood found
thereon with that of the deceased
30.
The recovery of blood-stained knives and gloves if presumed to have been made
from the petitioners, for the sake of argument, it cannot even then connect
them with the commission of murders of the five deceased persons in the present
case. This Court observed in the case of Irfan Ali v. State[27]
as to recovery of blood-stained alleged weapon of offence, i.e., dagger,
that “when no grouping of the blood was made with the blood-stained clothes of
the deceased to create a nexus between the two, the same is of no help to the
prosecution.” Similarly in the case of Khalid Javed v. State,[28]
this Court discarded the prosecution evidence of recovery of blood-stained
alleged weapon of offence, i.e., the dagger and knife (Churri),
and of blood-stained clothes of the accused persons in absence of matching
report of the blood-stains with the blood group of deceased. In Hamid Nadeem
v. State,[29]
a five-member Shariat Appellate Bench of this Court rejected the recovery of
blood-stained clothes of the accused as an incriminating piece of evidence
while observing that the blood-stains on the recovered clothes were not got
matched with the blood of the deceased. While, in the case of Muhammad Asif
v. State,[30]
this Court deemed it essential to point out that “mere sending the crime
weapons, blood-stained, to the chemical examiner and serologist would not serve
the purpose of the prosecution nor it will provide any evidence to inter link
different articles…unless the blood-stained earth or cotton and blood-stained
clothes of the victim are not sent with the same for opinion of serologist to
the effect that it was human blood on the crime weapons and was of the same
group which was available on the clothes of the victim and the blood-stained
earth/cotton, such inconclusive opinion cannot be used as a piece of
corroboratory evidence.” The legal position may be summed up thus: As in
absence of a positive report of Forensic Science Laboratory as to matching of
crime empty with the allegedly recovered firearm from an accused person, the
recovery of alleged weapon of offence cannot be considered as the corroborative
piece of evidence against that accused person,[31]
so is the legal position regarding recovery of a blood-stained alleged weapon
of offence without a positive forensic report matching the blood found thereon
with that of the deceased. It can also be not used as a substantive or
corroborative piece of evidence against an accused person to connect him with
the commission of offence. Therefore, the prosecution evidence as to recoveries
of blood-stained knives (Churri) and gloves that are alleged to have
been used for the commission of offence is also not found sufficient to connect
the petitioners with the commission of the offences charged.
Medical evidence, not corroborative
rather supporting evidence
31.
The prosecution has attempted to complete the chain of circumstantial evidence
by medical evidence relating to the post mortem examinations of the deceased
persons. This evidence proves only the factum that death of the deceased
persons was caused by cutting their throats through some sharp edge weapon; it
does in no way indicate who had cut their throats and with what particular
weapon. Medical evidence is in the nature of supporting, confirmatory or
explanatory of the direct or circumstantial evidence, and is not “corroborative
evidence” in the sense the term is used in legal parlance for a piece of
evidence that itself also has some probative force to connect the accused
person with the commission of offence. Medical evidence by itself does not
throw any light on the identity of the offender. Such evidence may confirm the
available substantive evidence with regard to certain facts including seat of
the injury, nature of the injury, cause of the death, kind of the weapon used
in the occurrence, duration between the injuries and the death, and presence of
an injured witness or the injured accused at the place of occurrence, but it does
not connect the accused with the commission of the offence. It cannot
constitute corroboration for proving involvement of the accused person in the
commission of offence, as it does not establish the identity of the accused
person.[32]
Therefore, the medical evidence is of little help to the prosecution for
bringing home the guilt to the petitioners.
32. We have noted it also that although Mirza Muhammad Umar
(PW-13) had stated in his statement recorded under Section 161, Cr.P.C. on
21.01.2010 by the investigating officer during investigation that due to
darkness he could not identify the persons standing at the door of the deceased
Pervaiz Akhtar, but one Fazal Hussain is alleged to have stated in his
statement recorded under Section 161, Cr.P.C. on 24.01.2010 that in the evening
of 20.01.2010 he had seen the petitioner, Qadeer (who was known to him) going
towards the locality where the house of the deceased Pervaiz Akhtar was
situated, on a motorcycle with two other persons who were not known to him. Therefore,
it was necessary for the investigating officer to get conducted the test
identification proceedings as to the identification of the petitioners, Khurram
Shahzad and Naveed Asghar, by the said Fazal Karim and to join him in
investigation, on their arrest. As per record of the case, the said Fazal Karim
was never joined again in investigation after his that alleged statement dated
24.01.2010. Non-joining of Fazal Karim, purportedly the most important witness,
in investigation after arrest of the petitioners in the case creates doubt even
about his statement that is alleged to have been recorded on 24.01.2010. The
said Fazal Karim died during trial of the case, and could not be examined as
witness by the prosecution for proving the facts allegedly narrated by him in
his statement dated 24.01.2010, nor was veracity of his that statement could be
checked through cross-examination on behalf of the petitioners. Therefore, his
alleged statement under Section 161, Cr.P.C. dated 24.01.2010 could not be used
for drawing any adverse inference against the petitioners. The omission of the
investigating officer to get conducted the test identification proceedings of
the petitioners, Khurram Shahzad and Naveed Asghar, was a serious failure in
performance of his duty to conduct the investigation of the case diligently and
efficiently. The way how the investigation of this very serious case involving
gruesome murder of five persons of one family was conducted speaks loudly about
lack of expertise and competency of the investigating officer to collect the
legally admissible evidence and detect the real culprits in cases that solely
rest upon circumstantial evidence. The investigating officer, in the present
case, instead of collecting the evidence attempted to create it. Apart from the
omissions and faults noted above in the course of appraising the prosecution
evidence, the observation of the Magistrate made while declining application of
the investigating officer for recording confessional statement of the
petitioner, Naveed Asghar that “the accused appeared to be under pressure of
the Police” also throws some light on the manner in which the investigation was
conducted.
33.
It is a well-established principle of administration of justice in criminal
cases that finding of guilt against an accused person cannot be based merely on
the high probabilities that may be inferred from evidence in a given case. The
finding as regards his guilt should be rested surely and firmly on the evidence
produced in the case and the plain inferences of guilt that may irresistibly be
drawn from that evidence. Mere conjectures and probabilities cannot take the
place of proof. If a case is decided merely on high probabilities regarding the
existence or non-existence of a fact to prove the guilt of a person, the golden
rule of giving “benefit of doubt” to an accused person, which has been a
dominant feature of the administration of criminal justice in this country with
the consistent approval of the Constitutional Courts, will be reduced to a
naught.[33]
The prosecution is under obligation to prove its case against the accused
person at the standard of proof required in criminal cases, namely, beyond
reasonable doubt standard, and cannot be said to have discharged this
obligation by producing evidence that merely meets the preponderance of
probability standard applied in civil cases. If the prosecution fails to
discharge its said obligation and there remains a reasonable doubt, not an
imaginary or artificial doubt, as to the guilt of the accused person, the
benefit of that doubt is to be given to the accused person as of right, not as
of concession.[34]
The rule of giving benefit of doubt to accused person is essentially a rule of
caution and prudence, and is deep rooted in our jurisprudence for safe administration
of criminal justice. In common law, it is based on the maxim, “It is better
that ten guilty persons be acquitted rather than one innocent person be
convicted”. While in Islamic criminal law it is based on the high authority of
sayings of the Holy Prophet of Islam (peace be upon him): “Avert punishments
[hudood] when there are doubts”;[35]
and “Drive off the ordained crimes from the Muslims as far as you can. If there
is any place of refuge for him [accused], let him have his way, because the leader’s
mistake in pardon is better than his mistake in punishment”.[36]
A three-member Bench of this Court has quoted probably latter part of the last
mentioned saying of the Holy Prophet (peace be upon him) in Ayub Masih v.
State[37]
in the English translation thus: “Mistake of Qazi (Judge) in releasing a
criminal is better than his mistake in punishing an innocent.”
34.
Keeping in view the said golden rule of giving benefit of doubt to an accused
person for safe administration of criminal justice, we are firmly of the
opinion that all the circumstantial evidence discussed above is completely
unreliable and utterly deficient to prove the charge against the petitioners
beyond reasonable doubt. The prosecution has miserably failed to complete the chain
of circumstances so as to establish conclusively the guilt of the petitioners
in a manner that can rule out every hypothesis inconsistent with their
innocence. The circumstantial evidence tendered by the prosecution is not found
to be like a well-knit chain, one end of which can touch the dead body of the
deceased persons and the other the neck of the petitioners. We find that the
missing links have been liberally filled up by the Courts below, apparently
being influence by the heinous nature of the charges involved in the case, on
the basis of surmises and conjectures, and this has resulted in grave
injustice. The Courts below have overlooked serious pitfalls and grave
infirmities in the prosecution evidence by adopting a superficial and cursory
approach, not befitting the seriousness of the crime charged in the present
case. The concurrent verdict returned by the Courts below (trial Court and
appellate Court) is manifestly erroneous, having been arrived at without a
complete and comprehensive appreciation of all the evidence and relevant
aspects of the case. The petition is therefore converted into appeal and is
allowed: the judgments of the Courts below are set aside and the petitioners
are acquitted of the charges. They shall be released forthwith, if they are not
required to be detained in some other case.
35.
Before parting with the judgment, we feel constrained to observe though at the
cost of some repetition but for the sake of clarity that in a criminal trial an
accused person cannot be convicted on the basis of mere “suspicion” or
“probability” unless and until the charge against him is “proved beyond
reasonable doubt”, a standard of proof required in criminal cases in almost all
common law jurisdictions. An accused person cannot be deprived of his
constitutional right38 to be dealt with in accordance with law, merely because
he is alleged to have committed a gruesome and heinous offence. The zeal to
punish an offender even in derogation or violation of the law would blur the
distinction between arbitrary decisions and lawful judgments. No doubt, duty of
the Courts is to administer justice; but this duty is to be performed in
accordance with the law and not otherwise. The mandatory requirements of law
cannot be ignored by labelling them as technicalities in pursuit of the
subjective administration of justice. One guilty person should not be taken to
task at the sacrifice of the very basis of a democratic and civilised society, i.e.,
the rule of law. Tolerating acquittal of some guilty whose guilt is not proved
under the law is the price which the society is to pay for the protection of
their invaluable constitutional right to be treated in accordance with the law.
Otherwise, every person will have to bear peril of being dealt with under the
personal whims of the persons sitting in executive or judicial offices, which
they in their own wisdom and subjective assessment consider good for the
society.
36. Foregoing are the reasons for our short order dated
07.12.2020, which for ease of reference and completion of record is reproduced
hereunder:
“For reasons to be
recorded later, the instant jail petition is converted into an appeal and the
same is hereby allowed. The convictions and sentences of appellants Naveed
Asghar, Khurram Shehzad and Qadeer Ahmed @ Saqib are set aside. They are
acquitted of the charge(s) framed against them. They are behind the bars and
are ordered to be released forthwith, if not required to be detained in any
other case.”
(K.Q.B.) Petition allowed