PLJ 2023 Cr.C. 518 (DB)
[Lahore High Court, Lahore]
Present:
Sadiq Mahmud Khurram and Muhammad Amjad
Rafiq, JJ.
MUHAMMAD
TAYYAB and another--Appellants
versus
STATE
and another--Respondents
Crl. A.
No. 778, 492 & M.R. No. 55 of 2018, heard on 25.10.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
---Ss.
302/364/148/149--Qanun-e-Shahdat Order, (10 of 1984), Art. 40--Qatl-i-amd--Circumstantial
evidence--Recovery of dead body--Last seen evidence--Recovery of weapon--PFSA
report--Acquittal of--Appellant got recovered dead body--this discovery was not
a secret information--An application was moved before Illaqa Magistrate for
disinterment of corpse, though such order was not brought into the evidence--Application
was already moved--Question of exclusive knowledge does not arise--There was no
evidence of last seen in this case, nor any eye witness to the act of murder,
act of burial--It was not supported with proof of ownership or report of a
cellular company in this respect that cell phone numbers belonged to the
deceased--Doctor has further stated that he has not mentioned the time of death
in the postmortem report--Doctor has examined a dead body without
identification that whose body it was--Safe transmission of parcels from doctor
to PFSA was in serious doubt and chain is broken, therefore, PFSA reports are
of no use to the prosecution--Identification of last worn clothes alongwith
dead body is also in doubt--The recovery of dead body on a certain date was
also an issue--Recovery of hoer (Kassi) and safty (shoes) are also of no avail
when they were not sent for testing to obtain any forensic clue--Pistol though
was recovered but its recovery is doubtful from the place because police had
already visited that place prior--Prosecution case theory on the basis of
alleged motive is not made out--Appellant is acquitted of the charges leveled
against him.
[Pp.
532, 533, 535, 536, 537 & 538] K, L, M, N, O, P, Q, R, S, T
PLJ
2022 Cr.C 955 Lahore ref.
Pakistan Penal Code, 1860 (XLV
of 1860)--
---Ss. 302/364/148/149--Qatl-i-amd--Reliable
and credible evidence means--Reliability always depends upon capacity of a
witness to depose, legality of processes and competency, whereas credibility
touches the character of a witness in relation to any fact in issue or relevant
fact. [P. 523] A
Pakistan Penal Code, 1860 (XLV of
1860)--
---Ss.
302/364/148/149--Qatl-i-amd--Circumstantial evidence--Verses of The Holy Quran
from Surah Yusuf is one the instances of circumstantial evidence where by
Hazarat Yusuf was declared innocent in a charge of indecent advancement against
a lady.
[P.
524] B
The Holy Quran Surah from
Yusuf (12), verse 21-29; PLD 1952 Privy Council 119 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
---Ss.
302/364/148/149--Qatl-i-amd--Circumstantial evidence--Conviction can be earned
on the basis of circumstantial evidence but it must confirm to standards and
principles of evidence--Circumstantial evidence is evidence of relevant facts
and contrast with direct evidence; it may take the form of oral or documentary
evidence including admissible hearsay or real evidence.
[Pp.
525 & 526] C & D
Pakistan Penal Code, 1860 (XLV of 1860)--
---Ss. 302/364/148/149--Qatl-i-amd--Circumstantial evidence--Fact
in issue--The circumstances in which a fact may be said to be relevant to a
fact in issue, in the sense that the existence of the former gives rise to an
inference as to the existence or non-existence of the latter, are many and
various. [P. 526] E
Pakistan Penal Code, 1860 (XLV of 1860)--
---Ss. 302/364/148/149--Qatl-i-amd--Circumstantial evidence--Evidence
of fact--Another type of circumstantial evidence is evidence of facts which are
so closely associated in time, place and circumstances with some transaction
which is in issue and they can be said to form a part of that transaction. [Pp. 526 & 527] F
Pakistan Penal Code, 1860 (XLV
of 1860)--
---Ss. 302/364/148/149--Qatl-i-amd--Circumstantial evidence--Res
gestae--Admissibility of statements of fact--Res gestae doctrine is mainly
connected with the admissibility of statements of fact as evidence of the truth
of their contents by way of common-law exceptions to the hearsay rule. [P. 527] G
Qanun-e-Shahadat Order, 1984 (10
of 1984)--
---Arts. 19, 20, 21, 22, 23, 24 & 129--Circumstantial
evidence--Motive--Plans and preparatory acts--Capacity--Opportunity--Identity--Continuance--Failure
to give evidence--Failure to provide evidence--Standards of comparison--Examples
of circumstantial evidence are less demanding and more typical--Circumstances
as relevant facts find their place in Articles 19, 20, 21, 22, 23, 24 and 129
of Qanun-e-Shahadat Order, 1984. [Pp. 527
& 529] H & I
2020 SCMR 2020; PLD 1954 Lah. 710 (DB); PLD 1953 BJ 17; PLD
1966 SC 664; 1969 SCMR 558; 1969 PCrLJ 1108; 1992 SCMR 1187; PLD 1983 SC 286;
PLD 1992 SC 1 ref.
Qanun-e-Shahadat Order, 1984 (10
of 1984)--
---Arts. 19,
20, 21, 22, 23, 24 & 129--Circumstantial evidence--Principles--Principles
have been outlined by the Hon’ble Supreme Court of Pakistan for relying upon
circumstantial evidence.
[P.
530] J
2021
SCMR 381; PLD 2021 SC 600; 2017 SCMR 2026; 2017 SCMR 898; 2016 SCMR 274; PLD
2016 SC 70; 2016 SCMR 1605; 2011 SCMR 1127; 2010 SCMR 939; 2009 SCMR 166; 2009
SCMR 407; 2008 SCMR 1103; 2007 SCMR 486; 2007 SCMR 1307; PLD 2006 SC 538; 2002
SCMR 713; 2001 SCMR 1773; PLD 1965 SC 44; PLD 1956 FC 123 ref.
Ch. Muhammad Saeed Machra,
Advocate for Appellants.
Mr. Muhammad Ali Shahab,
Deputy Prosecutor General for State.
Complainant in person.
Date of hearing: 25.10.2022.
Judgment
Muhammad Amjad Rafiq, J.--Muhammad Tayyab
(accused/appellant) along with two others namely Muhammad Shahid son of
Muhammad Aslam and Muhammad Shahid son of Muhammad Bakhsh faced trial before
learned Additional Sessions Judge, Multan in case FIR No. 312 dated 01.07.2014
under Sections 302, 364, 148, 149, PPC police station Qadirpur Raan, Multan and
on conclusion of trial vide judgment dated 19.02.2018 co-accused
Muhammad Shahid son of Muhammad Aslam and Muhammad Shahid son of Muhammad
Bakhsh were acquitted of the charges, whereas, Muhammad Tayyab (appellant) was
convicted under Section 302(b), PPC and sentenced to death and further ordered
to pay Rs. 200,000/- as compensation to the legal heirs of deceased as
envisaged under Section 544-A, Cr.P.C., in case of default to undergo six
months SI.
2. Ghulam Murtaza 21/22 years of age was reportedly went missing
who was searched upon by his sister Naseem Bibi, complainant along with
Muhammad Akram her husband. His close friends’ circle was contacted with whom
he used to work as labourer though lives alone in a rented house. His
co-workers were Shahid s/o Aslam, Shahid & Aslam sons of Muhammad Bakhash,
Tayyab (appellant) & Haji sons of Aashiq and Yasin. On 14.04.2014 in the
evening a contact was established with Ghulam Murtaza on cell phone No.
0346-7049216 who told that he returned to his quarter. On 16.04.2014,
complainant along with her husband and one Barish Ali noticing absence of
Ghulam Murtaza went to inquire from Shahid Baloch at 11.00 a.m. to know the
whereabouts of her brother because his cell phone was found switched off, who
ensured return of Ghulam Murtaza soon. On 05.05.2014 a call of Ghulam Murtaza
was received through his cell phone No. 0341-2440818 at evening time but nobody
talked through and it later became a routine that on the other side no voice on
the mouth piece despite running of a call. She suspected abduction of her
brother by Shahid Baloch and his friends. With this allegation FIR was
registered against all above persons on 01.07.2014 u/S. 365, PPC.
3. Ghulam Fareed ASI, PW-2 started investigation, conducted
raids at the residences of accused persons but in vain. On 04.07.2014, he
arrested accused Shahid Baloch but abductee could not be recovered, therefore,
sent him to judicial custody. He arrested Aslam and his brother and on their
disclosure offence u/S. 364 was added. Tayyab, appellant and Zafar alias
Haji were also arrested and these two accused confessed their guilt of
committing murder of Murtaza. Investigation was later taken up by Salamt Ali SI
PW-7 who stated that Tayyab, appellant was arrested on 28.10.2014 by another
police officer and on the same day he was assigned the investigation of this
case. On 08.11.2014 Tayyab, led to the recovery of dead body which was got
recovered from the graveyard Riaz abad Station Mouza Luthar. It was recovered
in the presence of Naseem bibi complainant, her husband Muhammad Akram, one
Barish Ali and Dr. Mukhtar Ahmad RHC Qadir Pur Raan and that too by digging a
grave by accused/appellant himself. All the formalities were observed like
taking the dead body into possession, preparation of injury statement and
sketching of place of recovery. Dead body was handed over to the doctor who
conducted Postmortem examination and prepared the report. Doctor handed over
two boxes and two envelopes for chemical examination. Complainant received the
dead body and last worn clothes of the deceased. Accused later got recovered
pistol 30 bore and one live bullet in the presence of complainant and her PWs.
4. Shahid Baloch in the same fashion led to point out the place
of murder of Murtaza for which memo was prepared and then went to the place of
recovery of dead body of the deceased in the graveyard. Memo of verification of
said place was also prepared. Later on, 05.01.2015, Salamat Ali SI PW-7 took
the complainant to PFSA where her DNA test was conducted for its matching with
dead body for identification. Thereafter report u/S. 173 Cr. P.C was prepared
and accused were sent to face the trial. Trial Court charge sheeted three
accused namely Tayyab, the appellant, Muhammad Shahid s/o Muhammad Aslam and
Muhammad Shahid s/o Muhammad Bakhsh and after conclusion of trial two accused
were acquitted and Tayyab was convicted and sentenced as forecited.
5. Learned counsel for the appellant sheets out many loopholes
in prosecution case; according to him prosecution case cannot stand against the
innocence of the appellant and termed it a result of grouch of the complainant;
walls erected against the appellant to confine him in a narrow shell of
allegation drum are weak and lack concrete support of admissible and cogent
evidence. learned Deputy Prosecutor General states that circumstantial evidence
is always regarded as good evidence because it cannot be belied with oral
assertions and in this case the most important evidence is discovery of dead
body on the lead of the appellant which was in his exclusive knowledge and it
is sufficient material to sustain his conviction.
6. Heard both the stances, examined the indicators and
directions; evidence was perused and reappraised.
7. The case as opened up by prosecution with a touch of circumstantial
evidence claiming it as based on high probabilities to be relied upon
considering in safe havens to convict the accused/appellant in that pocket of
circumstances, was surely a notching task for this Court, though trial Court
flew in that drape, to accept such circumstantial evidence as reliable and
credible; therefore, with lineal approach evidence was examined which the
prosecution coursed as fit to be read and relied upon against the appellant. To
see what prosecution brings against the appellant, we have attended to the
stances of proponents and minutely examined and reappraised the evidence.
prosecution produced following types of evidence to beg conviction of the
appellant.
1. Recovery of hoer
(Kassi) & Softy (shoes)
2. Recovery of dead
body on the lead of the appellant along with last worn clothes.
3. Recovery of
Pistol
4. PFSA report
showing identification of dead body on the basis of matching of DNA with the
complainant.
What was the value of such evidence and what other factors were
also spoken in support of prosecution, it is necessary to see what direct or
indirect information about murder of Murtaza was collected by the prosecution.
8. Naseem Bibi complainant PW-4 told the story of involvement
of present appellant. According to her statement on 28.10.2014 Tayyab appellant
while in police custody disclosed the reason for committing murder of Ghulam
Murtaza deceased. She spoke in the words of Tayyab (appellant) that Zafar,
brother of Tayyab (appellant) had abducted the wife of one Haji Ali Ahmad,
brother of complainant & Ghulam Murtaza (deceased), and appellant had
strong apprehension that he may be killed by Ghulam Murtaza due the abduction
of his Bhabhi. Except this information no narration of facts encompassing
events culminating to death of deceased was spoken by any of the witnesses. No
anything or material was available which could throw light that at what time,
where and how the murder took place or who committed the murder with which
weapon and in whose presence, it was done. Absence of date, time, place and
manner of occurrence hardly supply information for framing of a legal charge
but trial Court proceeded to pass the conviction.
9. Before discussion on the veracity of evidence, let’s see
what does reliable and credible evidence mean; though both terms are sometimes
used interchangeably but there is delicate difference between the two.
Reliability always depends upon capacity of a witness to depose, legality of
processes and competency, whereas credibility touches the character of a
witness in relation to any fact in issue or relevant fact. Any violations of
the legally acceptable or mandated process of collection/recording may lead to
it’s becoming unreliable. Witnesses may be unreliable because of various
factors such as old age, inability to remember past events, relationship with
the victims and/or the complainant; any likely motives for the commission of
perjury, such as financial gain, duress, past history of witnesses, lack of
requisite knowledge or experience etc. Both reliability and credibility of
evidence is locus in a case of direct or circumstantial evidence for a
well-reasoned decision in a case by the Court.
10. The case in hand is based on circumstantial evidence,
therefore, what are the contours of such evidence, it’s origin in Islamic law,
version in English law and how the Honourable Superior Courts of this country
has dealt with such type of evidence. Following verses of Holy Quran from Surah
Yusuf is one the instances of circumstantial evidence whereby Hazarat Yusuf was
declared innocent in a charge of an indecent advancement against a lady:-
Tafheem-ul-Quran
Surah 12 Yusuf, Ayat 21-29
(12:21) The man from
Egypt who bought him said to his wife: “Take good care of him, possibly he
might be of benefit to us or we might adopt him as a son.” Thus, we found a way
for Joseph to become established in that land and in order that We might teach
him to comprehend the deeper meaning of things. Allah has full power to
implement His design although most people do not know that. (12:22) And when
Joseph reached the age of maturity, we granted him judgement and knowledge.
Thus, do We reward those who do good. (12:23) And it so happened that the lady
in whose house Joseph was living, sought to tempt him to herself, and one day
bolting the doors she said: “Come on now!” Joseph answered: “May Allah grant me
refuge! My Lord has provided an honourable abode for me (so how can I do
something so evil)? Such wrong-doers never prosper.” (12:24) And she advanced
towards him, and had Joseph not perceived a sign from his Lord he too would
have advanced towards her. Thus was Joseph shown a sign from his Lord that We
might avert from him all evil and indecency, for indeed he was one of Our
chosen servants. (12:25) Then both of them rushed to the door, each seeking to
get ahead of the other, and she tore Joseph’s shirt from behind. Then both of
them found the husband of the lady at the door. Seeing him she said: “What
should be the punishment of him who has foul designs on your wife except that
he should be imprisoned or subjected to painful chastisement?” (12:26) Joseph
said: “It is she who was trying to tempt me to herself.” And a witness
belonging to her own household testified (on grounds of circumstantial
evidence): “If his shirt is torn from the front, then she is telling the truth
and he is a liar. (12:27) But if his shirt is torn from behind, then she has
lied, and he is truthful.” (12:28) So when the husband saw Joseph’s shirt torn
from behind, he exclaimed: “Surely, this is one of the tricks of you women;
your tricks are indeed great. (12:29) Joseph, disregard this. And you -woman
-ask forgiveness for your sin, for indeed it is you who has been at fault.”
A reference of happening in the house
of Joseph connected with presumption on the basis of circumstantial evidence is
cited in the case reported as “Lejzor Teper versus The Queen” (PLD 1952
Privy Council 119), which is reproduced for reference:
“Circumstantial
evidence may sometimes be conclusive, but it must always be narrowly examined
if only because evidence of this kind may be fabricated in order to cast
suspicion on another. Joseph commanded the steward of his house, “Put my cup,
the silver cup, in the sack’s mouth of the youngest”, and when the cup was
found there Benjamin’s brethren too hastily assumed that he must have stolen
it. It is also necessary before drawing the inference of the accused’s guilt
from circumstantial evidence to be sure that there are no other co-existing
circumstances which would weaken or destroy the inference.”
11. It is trite that conviction can be
earned on the basis of circumstantial evidence but it must confirm to standards
and principles of evidence; therefore, what implies circumstantial evidence and
what are the standards of such evidence in the light of law and principles of
evidence, it is highlighted for reference as under;
Circumstantial
evidence means the evidence afforded not by the direct testimony of an
eye-witness to the fact to be proved, out by the bearing upon that fact or
other and subsidiary facts which are relied upon as inconsistent with any
result other than the truth of the principal fact.
The leading rules of circumstantial evidence are the
followings;
1) The facts alleged
as the basis of any inference must be clearly proved and indubitably connected
with the factum probandum.
2) The burden of
proof is always on the party who asserts the existence of any act which infers
legal accountability.
3) The corpus
delicti must be clearly proved before any effect is attached to circumstances
supposed to be inculpatory of a particular individual.
4) The best evidence
must be adduced which the nature of the case demands.
5) Evidence ought to
be received with distrust, wherever any considerable time has elapsed since the
commission of alleged offence.
6) In order to
justify the inference of guilt, the inculpatory facts must be incompatible with
the innocence of the accused and incapable explanation upon any other
reasonable hypothesis than that of his guilt.
7) If there be any
reasonable doubt of the guilt of the accused, he is entitled as of right to be
acquitted.
[An essay on the
principles of Circumstantial evidence by William Wills. T. & J. W. Johnson
& company, 1857]
Circumstantial evidence is evidence of
relevant facts and contrast with direct evidence; it may take the form of oral
or documentary evidence including admissible hearsay or real evidence. It is no
derogation of evidence to say that it is circumstantial.[1]
Its importance lies in its potential for proving a variety of different
relevant facts all of which point to same conclusion, as when it is sought to
establish, that an accused committed murder, it must be proved by evidence of
his preparation, motive and opportunity for its commission together with
evidence of the discovery of a weapon, capable of having caused the injuries
sustained by the victim, buried in the accused’s back garden and bearing his
finger prints.
12. Circumstantial evidence, it has
been said, ‘works by cumulatively, in geometrical progression, eliminating
other possibilities’.[2]
It has been linked to a rope comprised of several cords: One strand of the cord
might be insufficient to sustain the weight, but three strand together may be
quite of sufficient strength. There may be a combination of circumstances, no
one of which may raise reasonable conviction or more than a suspicion; but the
three taken together may create a conclusion of guilt with as much certainty as
human affair can require or admit it.[3]
The circumstances in which a fact may be said to be relevant to a fact in issue,
in the sense that the existence of the former gives rise to an inference as to
the existence or non-existence of the latter, are many and various. Certain
types of circumstantial evidence arise so frequently that they have been
referred to as ‘presumptions of fact’ or ‘provisional presumptions’ such as the
presumptions of intention, guilty knowledge, continuance of life and
seaworthiness etc. Another type of circumstantial evidence is evidence of facts
which are so closely associated in time, place and circumstances with some
transaction which is in issue and they can be said to form a part of that
transaction. such facts, referred to as facts forming part of the res gestae
are more conveniently can be explored in Chapter-III of Qanun-e-Shahadat Order,
1984. Res gestae doctrine is mainly connected with the admissibility of
statements of fact as evidence of the truth of their contents by way of
common-law exceptions to the hearsay rule and has been described, not unfairly,
in terms of a ‘collection of fact situations’ so confusing in its scope as
almost to demand that a reader cease thinking before he go mad’![4]
The following examples of
circumstantial evidence are less demanding and more typical:-
Motive: in an ordinary prosecution for
murder one can prove previous acts or words of the accused to show that he
entertained feelings of enmity towards the deceased, and this is evidence not
merely of malicious mind with which he killed the deceased, but of the fact he
killed him, it is more probable that men are killed by those that have some
motive for killing them than by those who have not.[5]
Plans and Preparatory acts: facts
which tend to suggest that a person made plans or other preparations for the
performance of a particular act are relevant to question whether he
subsequently performed that act. Thus, evidence may be given of the purchase by
an alleged murderer of poison, or as the case may be, of gun or dagger.
Capacity: Evidence of a person’s
mental or physical capacity or incapacity to do a particular act has an obvious
relevance to the question whether he in fact performed it.
Opportunity: circumstantial evidence
of opportunity or lack of opportunity is evidence of the fact that a person was
present or absent at the time and place of some act allegedly performed by him,
like a plea of alibi.
Identity: circumstantial evidence of
identity often takes a form of expert testimony that the fingerprints[6]
of the accused or samples taken from his body match those discovered on or
taken from some material object at the scene of the crime or the victim of the
offence in question.[7]
Identity may also be established by the evidence that the accused present and
the criminal share the same name, the same physical idiosyncrasy, for example
left-handedness, the same style of hand writing or same particular manner of
expression in speech or writing.[8]
Continuance:
the fact that a certain act or event was taking place at one point in time may
justify the inference that it was also taking place at some prior or subsequent
point of time, thus evidence of the speed at which someone was driving at a
particular point in time may be given to show the speed at which he was likely
to have been driving a few moments earlier[9]
or later.[10]
Failure to give
evidence: although in a criminal case, absence of accused from the witness
box should not be equated with guilt[11]
but an adverse inference may be drawn in cases where the uncontested or clearly
established facts point so strongly to the guilt of the accused as to call for
some explanation.[12]
Failure to provide
evidence: where an accused has refused without good cause to the taking
from him of an intimate body sample, the Court determining whether he is guilty
of the offence charge may draw such inferences from the refusal as appear
proper.
Standards of
comparison: in cases where it is necessary to decide whether a person’s
conduct meets some objective standard of behaviour, evidence of what other
person would do in the same circumstances is admissible as a standard of
comparison. Though this principle is more likely for civil cases yet a flow of
natural behaviour in a certain circumstance can also be the subject in criminal
cases on the basis of inferences or observation of the Court. If a dead body is
buried in the house of any person, unusual activity or change at the place of
burial can easily be observed if he is not the accused. likewise foul smell
element or outbreak of germs are the factors which in the ordinary course of
nature can easily be monitored and natural behaviour is to report that
suspicious activity to police; not reporting to police is an unusual behaviour
that indicates a guilty mind.
The above
circumstances as relevant facts find their place in Articles 19, 20, 21, 22,
23, 24 and 129 of Qanun-e-Shahadat Order, 1984.
13. In following Judgments of
Honourable Courts, the principles were laid down for relying upon
circumstantial evidence in order to convict the accused:
The fundamental principle of universal
application in cases dependent on circumstantial evidence, is that in order to
justify the inference of guilt, the incriminating fact must be incompatible
with the innocence of the accused or the guilt of any other person and
incapable of explanation upon any other reasonable hypothesis than that of his
guilt. “Zahid Hussain versus The Crown” (PLD 1954 Lah. 710 (DB);
Cumulative effect of separate items of
evidence. Taken separately the circumstances of the case may or not lead to an
inference of guilt against the appellant, but considered cumulatively they lead
to only one conclusion and that is that the appellant and no one else caused
the death of the deceased. Conviction may follow on such evidence if
inculpatory facts proved are incompatible with innocence of the accused. “Ali
Muhammad versus Crown (DB)” (PLD 1953 BJ 17).
Court to examine probabilities in the light
of the circumstances of the case. Lack of direct evidence connecting the
accused or any other person with the murder does not mean that the guilt cannot
be fixed. Straining the evidence in favour of the accused or against him is to
be deprecated. “The State versus Manzoor Ahmed” (PLD 1966 Supreme Court
664).
Onus heavy on accused to furnish explanation
for circumstantial evidence not explainable on any hypothesis consistent with
total innocence of the accused. Onus cannot be discharged by merely hinting of
“possibilities” or “suggesting remote hypothesis”. PLD 1966 Supreme Court 664,
Supra.
Deceased last seen alive in the company of
the accused shortly before the time she was presumed to have met her death,
near the place of occurrence. Accused failed to furnish explanation. It is
reasonable to infer that the survivor was responsible for her death. Conviction
upheld. “Allah Ditta versus The Crown” (1969 SCMR 558); equivalent
citation (1969 P.Cr.LJ 1108).
Circumstantial evidence could be relied upon
where either direct evidence was not forthcoming or had not been found
satisfactory. “Muhammad Arshad versus The State” (1992 SCMR 1187); “State
versus Habibur Rahman And Others” (PLD 1983 Supreme Court 286); “Muhammad
Aslam versus Muhammad Zafar and 2 others” (PLD 1992 Supreme Court 1).
In case reported as Hamid
Mahmood and another versus The State, (2013 SCMR 1314) while referring the
principle laid down in Muhammad Amjad v. The State (PLD 2003 SC 704);
death sentence was confirmed on the basis of circumstantial evidence; principle
is as follows:
“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 complete 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.”
Extra-judicial
confession of accused corroborated by medical evidence; the accused disclosed
before the PWs that he took deceased to a house with intention to commit sodomy
and on his failure to do the unnatural act, he tied up and strangulated the
deceased with an iron wire and concealed his body in an iron box; On disclosure
of accused before police, dead body of deceased was recovered from a vacant
house; Accused also got recovered the keys of said house, a shirt, bag, books
and a register belonging to the deceased. circumstances were relied upon. “akhtar
versus the state” (2020 SCMR 2020)
14. Similarly, following principles have been outlined by the
Hon’ble Supreme Court of Pakistan for relying upon circumstantial evidence in a
case reported as “Fayaz Ahmed vs. The State” (2017 SCMR 2026):--
(i) There must be
cogent reasons that the deceased in normal and ordinary course was supposed to
accompany the accused and those reasons must be palpable and prima facie
furnished by the prosecution.
(ii) The proximity of
the crime scene played a vital role because if within a short distance the
deceased was done to death then, ordinarily the inference would be that he did
not part ways or separate from the accused and onus in such regard would shift
to the accused to furnish those circumstances under which, the deceased left him
and parted ways in the course of transit.
(iii) The timing when
the deceased was last seen with the accused and subsequently his murder, must
be reasonably close to each other to exclude any possibility of the deceased
getting away from the accused or the accused getting away from him.
(iv) There must be
some reasons and objects on account of which the deceased accompanied the
accused towards a particular destination, otherwise deceased being in the
company of the accused would become a question mark.
(v) There must be
some motive on the part of the accused to kill the deceased otherwise the
prosecution had to furnish evidence that it was during the transit that
something abnormal or unpleasant happened which motivated the accused to kill
the deceased.
(vi) Quick reporting
of the matter without any undue delay was essential, otherwise the prosecution
story would become doubtful for the reason that the last seen evidence was
tailored or designed falsely to involve the accused person.
(vii) Last seen
evidence must be corroborated by independent evidence, coming from an
unimpeachable source because uncorroborated last seen evidence was a weak type
of evidence in cases involving capital punishment.
(viii) The recovery of
the crime weapon from the accused and the opinion of the expert must be carried
out in a transparent and fair manner to exclude all possible doubts.
The above principles more or less have
been explained in plethora
of judgments while acquitting the accused. some of which are cited below:
“Gul Muhammad and
others v. The State” (2021 SCMR 381); “Naveed Asghar and 2 others versus
The State” (PLD 2021 Supreme Court 600); “Muhammad Ismail and others
versus The State” (2017 SCMR 898), “Azeem Khan and another versus Mujahid
Khan and others” (2016 SCMR 274) “Niaz Ahmed versus Hasrat Mahmood”
(PLD 2016 Supreme Court 70); “Muhammad Saleem versus Shabbir Ahmed and
others” (2016 SCMR 1605); “Muhammad Hussain versus The State” (2011
SCMR 1127); “Zafar Abbas versus The State” (2010 SCMR 939 “Tahir
Javed versus The State” (2009 SCMR 166); “Ibrahim and others versus The
State” (2009 SCMR 407); “Altaf Hussain versus Fakhar Hussain and another”
(2008 SCMR 1103); “Akbar Ali versus The State” (2007 SCMR 486); “Liaqat
Ali versus The State” (2007 SCMR 1307); “Abdul Mateen versus Sahib Khan
and others” (PLD 2006 Supreme Court 538); “Munawar Shah versus Liaquat
Hussain and others” (2002 SCMR 713); “Munir Ahmad Dar versus Imran and
others” (2001 SCMR 1773); “Azim versus The State” (PLD 1965 Supreme
Court 44) “Siraj versus The Crown” (PLD 1956 Federal Court 123).
15. Coming back to the case in
hand, let the evidence produced against the accused/appellant be examined in
the light of law and principles of evidence cited above. According to
prosecution, Tayyab appellant got recovered dead body on 08.11.2014. this
discovery was not a secret information that could remain within the knowledge
of police and the appellant so as to evaluate it in the light of Article 40 of
Qanun-e-Shahadat Order, 1984 but as per evidence an application was moved
before Illaqa Magistrate for disinterment of corpse, though such order was not
brought into the evidence yet doctor Mukhtar Ahmad PW-8 confirmed the fact that
exhumation of dead body was done in the graveyard of Moza Lothar, District
Multan by the Court order dated 31.10.2014 on the application Ex.PR moved by SI
Salamat, Police Station Qadir Pur Raan. PW-7 Salamat SI stated that on the lead
and pointing out by the appellant dead body was recovered from the graveyard
cited above in the presence of Naseem Bibi complainant, her husband Muhammad
Akram, one Barish Ali and Dr. Mukhtar Ahmad RHC Qadir Pur Raan and that too by
digging a grave by accused/appellant himself. It is strange when application
was already moved for exhumation and information in this respect was available
with the police, doctor and complainant, question of exclusive knowledge does
not arise so as to make evidence of recovery of dead body as admissible under
Article 40 of Qanun-e-Shahadat Order, 1984. Another strange factor was spoken
by the witnesses that for digging out the dead body no men were hired for the
purpose but this was done by Tayyab appellant himself. Now he being labourer by
profession was rendering services as such or was under the charge as an accused
is a question to be responded by the prosecution particularly when salamat Ali
SI PW-7, investigating officer during cross examination admitted that earlier
on 02.11.2014 appellant also led him to graveyard and pointed out a wrong grave
which was dug out but no dead body was recovered. It was further admitted by
investigating officer in following words:
“Wherefrom the deadbody of deceased Ghulam
Murtaza was recovered that place had been surrounded by several graves in the
graveyard.”
It is beyond
comprehension that a man was laid into grave in a populated graveyard and
nobody noticed nor it was reported that in what circumstances the deceased was
brought there. No witnesses were available who could even depose burial of dead
body by the appellant or the co-accused.
16. During evidence, it did not
come to light that Tayyab has ever pointed out a place where he committed the
murder of Ghulam Murtaza. It was clear from the facts that there was no
evidence of last seen in this case, nor any eye witness to the act of murder, act
of burial and even claim of prosecution that a certain cell phone numbers were
in use of Ghulam Murtaza deceased and it remained on in certain intervals
between 14.04.2014 till the registration of FIR and thereafter too, but it was
not supported with proof of ownership or report of a cellular company in this
respect that cell phone numbers belonged to the deceased and even CDR of such
cell phones showing connection of appellant or others with deceased was also
not proved through the evidence.
17. Dr. Mukhtar PW-8 though
conducted the postmortem examination on 08.11.2014 but observed the condition
of dead body in PMR with following expression:-
OBSERVATION
Exhumation
of dead body was done in the grave yard of Moza Lothar, District, Multan by the
Court order dated 31.10.2014 on the application Ex-PR moved by SI Salamat
Ullah, Police station Qadir Pur Raan. Skelton of deceased Ghulam Murtaza was
recovered. Soft tissue on the Skelton was not present except some of soft
tissues in abdomen. Skelton was clad in dark grey colour Kameez, shalwar and
banyan and checkdar the hander kerchief (sic) are dirty with mud.”
INFORMATION FURNISHED BY POLICE:
Death
due to fire arm injury.
EXTERNAL EXAMINATION OF BODY:
On examination of body, I noted
following injuries:
1. A
round whole in-skull 0.9 c.m. (0.9 c.m.) on Prieto occipital region of skull.
12.5 c.m. behind right orbit. 9 c.m. above right T/M joint. This is wound of
entry of fire arm.
2. An
irregular wound 2.5 c.m. (2 c.m.) on the base of head on right side. This is wound
of exit of fire arm injury.
OBSERVATION:
Black
hair was present on skull. Hair nail and one bone (radius) and tissue sent to
chemical examiner for detection of poison. These are in jar containing tissue
(1). Jar (2) containing hair and nail accompanied by packet of wound radius.
Jar (3) containing molar teeth and sternal and accompanied by packet of ulna
bone and sent to D.G. Forensic Science Laboratory, Lahore for DNA test.
CRANIUM AND SPINAL CORD:
Scalp
was putrified (sic) and decomposed. Black hair were present on skull.
SKULL:
Skull
was entrance and exit wound already described. Fracture of skull was present.
Fracture lining passing up to frontal and parietal bone junction. One fracture
line was present passing up left piretal (sic) region.
MEMBRANES:
Membranes
were putrefied and dried. Vertebrae was healthy. Spinal cord putrefied. Hyoid
bone was intact.
THORAX
Bone
was healthy. Tissue putrefied and dried. Sternum sent to Forensic Science
Laboratory for DNA test to match with DNA of blood relation. Other tissues
thorax was putrefied.
ABDOMEN:
Abdomen
was putrefied. Some tissues from abdomen were taken and sent to Chemical
Examiner for detection of poison.
UPPER LOWER LIMB:
Healthy.
FINAL OPINION:
Report of Forensic Science Agency
bearing Sr. No. 0000122273 dated 31.03.2015 is regarding forensic toxicology
analsysis report, which is Ex-PS. As per report no drug of abuse is detected in
Hair in item # 1. Injury No. 1 and 2 are entrance exit of single fire inflicted
by fire arm weapon. This injury is sufficient to cause death in ordinary course
of nature.”
During cross examination doctor
responded that he prepared the postmortem report on 08.12.2014 (after one
month) and about cause of death deposed as under:
“It is correct that I
had not given any official opinion about cause of death the deceased till now
in postmortem report.”
Postmortem Report Ex.PT confirms the
above fact wherein under final opinion cause of death is not mentioned. This
exaggerated version of doctor deposing about cause of death by firearm before
the Court cannot be considered because accused was not aware of such opinion
nor copy of it was provided to him, therefore, it is improper admission of such
fact which lost sight of learned trial Court. Doctor has further stated that he
has not mentioned the time of death in the postmortem report. This being so
under what law this evidence was relied upon by the learned trial Court when it
cannot help the prosecution to tally anything or take support to any fact
except that doctor has examined a dead body without identification that whose
body it was. Though this expression seems to the complainant’s counsel as
strange yet there is serious issue about identification of dead body which fact
is being dealt with in the next paragraph.
18. Doctor during his evidence as PW-8 stated that he prepared
Jar (1) containing tissue, Jar (2) containing hair and nail accompanied by
packet of wound radius. Jar (3) containing molar teeth and sternal and
accompanied by packet of ulna bone and sent to DG Forensic, Lahore for DNA test
and mentioned in the postmortem report the following articles were handed over
to the police:-
1. Three Jars (1)
(2) (3) sealed
2. Two packets
sealed
3. Two sealed
envelops
But when appeared as PW-8 he did not
specifically depose that such articles were handed over to the investigating
officer or any constable but Salamat Ali SI, investigating officer PW-7
conceded that doctor has handed over him two boxes and two envelopes for the
purpose of chemical examination. Salamat Ali Si did not say that such boxes and
envelopes were handed over to the Moharrir, yet Ishfaq Ahmad 939/C Moharrir
when appeared as PW-1 deposed that I.O. handed over him a pistol 30-bore along
with four bullets, four boxes and four envelopes (though doctor has handed over
three jars and two packets and two envelopes) for safe custody which he handed
over to Jalil Ahmad 3021/C on 05.01.2015 for onward transmission to PFSA for
DNA and chemical examination and after depositing the said parcels Jalil Ahmad 3021/C
returned the road certificate regarding depositing of said parcels.
Now three different reports of PFSA were tendered in evidence.
PFSA report Ex.PW relating to parcel of pistol correctly finds mentioned the
name of Jalil Ahmad 3021/C as the man who deposited the said parcel. However,
PFSA report Ex.PS regarding two sealed Jars and one envelope containing
specimen (Tissues, hair, radius bone and nail) and PFSA report Ex.PX showing
deposit of parcels (relating to teeth of unknown deceased, one piece of sternum
bone, ulna bone and buccal swabs standards of Naseem Bibi) by Salamat Ali SI on
05.01.2015, whereas Moharrir has handed over the same to Jalil Ahmad 3021/C.
Salamat Ali SI though appeared twice as PW-7 but did not depose about fact of
depositing of said parcels yet claimed production of Naseem Bibi before PFSA on
05.01.2015. Safe transmission of parcels from doctor to PFSA was in serious
doubt and chain is broken, therefore, PFSA reports EX.PS & Ex.PX are of no
use to the prosecution. The case reported as “Meer Nawaz alias Meero VS The
State Etc “; (PLJ 2022 Cr.C 955 Lahore) is referred in this regard.
Therefore, DNA report showing the identity of deceased as biologically full
siblings of Naseem Bibi loses its efficacy and cannot the read in favour of
prosecution. Prosecution has also put complainant PW-4 and Muhammad Akram PW-5
with the claim that they had identified the dead body at the time of postmortem
examination but both when entered into witness box did not depose about this
fact. Identification of last worn clothes along with dead body is also in doubt
because related recovery memo Ex.PF shows interpolation and addition of fact of
identification of clothes with different hand writing. In this case prosecution
remained unsuccessful to prove the identity of Skelton as dead body of Ghulam
Murtaza. So, the basic fact in issue has not been proved, further material
cannot be used, though is also not worthy of appreciation, against the present
appellant.
19. The recovery of dead body on a certain date was also an
issue in this case due to contradictory statements of complainant, PWs, doctor
or investigating officer. According to doctor and investigating officer dead
body was recovered from the graveyard on 08.11.2014 whereas complainant PW-4
Naseem Bibi during cross examination deposed that Tayyab was arrested on
21.10.2014 and further as under;
“I visited the place
of occurrence on 08.11.2014. On the said day I was along with the I.O.
accompanied by Tayyab Jogi in police custody where Tayyab Jogi pointed out the
place of occurrence and burial of deceased. I did not do any activity in this
regard. On 11.11.2014 I visited the place of occurrence and on the same day
Tayyab Jogi and I.O. were with us. On the said day Tayyab Jogi got recovered
dead body of deceased and same was taken into possession by the police.”
Similarly, Muhammad Akram PW-5 deposed
during cross examination as under:
“The dead body was
recovered on 28.10.2014. The I.O. obtained thumb impression as well as
signature over recovery memo. I took the dead body from that place. I again
visited the place of recovery of dead body on 11.11.2014. On 11.11.2014 I.O.
took us at the place of recovery of dead body from where he recovered pistol
from there on the pointation of Tayyab Jogi. After that we came back at the
police station alongwith the I.O. and then we returned to home. On 17.11.2014 I
again went at the place of recovery of dead body and put my thumb impression on
memo, thereafter we came back at the police station alongwith the I.O. and from
there we came back to home.”
20. Recovery of hoer (Kassi) and softy (shoes) are also of no
avail when they were not sent for testing to obtain any forensic clue with
respect to use of such Kassi for causing any injury or excavation of earth for
burial of dead body. Similarly, shoes were also not sent for testing nor any
expert examined such shoes to know about its size to be fit in the feet of
deceased.
21. Pistol though was recovered but
its recovery is doubtful from the place because police had already visited that
place prior to 11.11.2014, even otherwise only a functionality test report of
such pistol is available, no bullet casings were collected by the police so as
to obtain any evidence of its matching with alleged pistol. Though doctor has
observed injuries by firearm weapon but it is not discernable from the record
that it was caused with pistol shots. Moreso, neither the time nor cause of
death was determined by the doctor as admitted by him during cross examination,
therefore, recovery of pistol does not add any quality to prosecution case.
22. Motive bottomed by the prosecution was without support of
any evidence yet from the accused’s side Ghazala Shaheen appeared as DW-1 and
deposed that she was wife of Haji Ali Ahmad, brother of the deceased who
maintained criminal history and used to keep her under threat; once Ghulam
Murtaza deceased attempted rape upon her, she told the fact to her husband who
expelled her from the house. She later contracted 2nd marriage with Zafar,
brother of the appellant and was living happily but her ex-husband carried on
causing harassment to her, therefore, she filed a writ petition Bearing No.
7607/2014 Ex. DF against her husband and others to desist such harassment and
by virtue of order dated 16.06.2014 they were directed not to cause harassment.
She further deposed that her son Ali Raza from the dynasty of ex. husband was
later abducted by the complainant party due to such grudge. In proof whereof,
defence has tendered copy of FIR Bearing No. 818/14 dated 11.11.2014 Ex.DE showing
the occurrence as of 28.10.2014 and nomination of complainant, Muhammad Akram,
her husband and Barish Ali Pw as accused persons. She alleged that it was the
reason for false involvement of her husband Zafar and his brother Tayyab, the
appellant in this case. On her statement, Police opted to discharge Zafar from
this case but appellant was falsely retained and shown involved only to appease
the complainant party. From the above statement, it is clear that prosecution
case theory on the basis of alleged motive is not made out and prosecution has
failed badly to prove this aspect of the case.
23. For what has been discussed above, it is vividly clear that
prosecution has not produced any evidence with respect to motive, plans and
preparatory acts, opportunity, identity and continuance of any attempt earlier
made, though the appellant being young man had capacity to commit murder but
evidence of opportunity is not available, therefore, it lacks cogent evidence.
when prosecution has no case on the evidential strength and other aspects, the
evidential burden is not shifted to the accused/appellant in order to dislodge
the prosecution case, therefore, factors like failure to give evidence as
witness or provide evidence cannot be read against him, though he too opted to
produce DW to dislodge the alleged motive. Standard of comparison is also not
attended to in this case because no evidence was produced in respect of conduct
of accused to conceal the commission of offence. There was delay of about three
months in reporting the crime without any plausible justification; identity of
dead body was not proved; discovery of dead body was also not on the basis of
exclusive knowledge of the appellant. After examining prosecution case in the
light of principles and law of evidence, we are convinced and safely conclude
that prosecution has failed miserably to prove the charge against the appellant
on the touchstone of standard of proof required in criminal cases i.e.,
proof beyond reasonable doubt, therefore, appeal in hand in allowed, appellant
is acquitted of the charges levelled against him. He may be released forthwith
from the custody if not required in any other case. The case property, if any,
be disposed of in accordance with law and the record of the learned trial Court
be sent back immediately.
24. In the light of above discussion,
we find no force in Criminal Appeal No. 492 of 2018 and the same is dismissed.
Murder Reference is answered in negative.
Sentence of death is not confirmed.
(K.Q.B.) Appeal dismissed
[1]. R v Taylor, Weaver and Donavan (1928) 21
Cr App Rep 20 (CA).
[2]. Per Lord Simon in DPP v Kilbourne [1973]
AC 729 at p 758.
[3]. Per Pollock CB in R v Exall (1866) 4 F
& F 922 at p 929.
[4]. Wright, 20 Can B R 714 at p 716
[5]. Per Lord Atkinson in R v Ball (1911) AC 47 at
p 68.
[6]. R v Castleton (1909) 3 Cr APP Rep 74: cf R v
Court (1960) 44 Cr App Rep 242 (CCA).
[7]. Chappell v DPP (1988) 89 Cr App Rep 82.
[8]. R v Voisin [1918] 1 KB 531.
[9]. R v Dalloz (1908) 1 Cr App Rep 258.
[10]. Berestford v St Albans Justices (1905) 22
TLR.
[11]. R v Sparrow [1973] 1 WLR 488.
[12]. R v Mutch [1973] 1 All ER 178 (CA); R v
Corrie (1904) 20 TLR 365.