PLJ 2021 SC (Cr.C.) 258
----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.
PLJ 2021 SC (Cr.C.) 258
[Appellate Jurisdiction]
Present: Manzoor Ahmad Malik, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ.
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)
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
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
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]
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]
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.
Effect of material improvements made by a witness
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.
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 
Recovery of mobile phones and sims
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
Recovery of weapon of offence, a corroborative evidence
Evidentiary value of a blood-stained alleged weapon of offence without a forensic report matching the blood found thereon with that of the deceased
Medical evidence, not corroborative rather supporting evidence
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.
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
[1]. FIR No. 11, P.S. Mangla Cannt., district Jehlum, offence u/s 302/34, PPC.
[2]. This person died during trial of the case, and could not be examined by the prosecution as its witness.
[3]. 3 See Noorul Haq v. State, 1989 PCr.LJ 1322 (DB).
[4]. See Fakiro v. State, PLD 1964 (W. P.) Karachi 344 (DB).
[5]. See Bhupendra Singh v. State of Punjab, AIR 1968 SC 1438.
[6]. 6 See Jumman v. State of Punjab, AIR 1957 SC 469; Ram Shankar v. State of West Bengal, AIR 1962 SC 1239; Masalti v. State of U.P., AIR 1965 SC 202.
[7]. AIR 1921 Sindh 84 (FB).
[8]. Observations of the Lahore High Court and the Federal Shariat Court in this regard made in Muhammad Fazil v. State, 1982 PCr.LJ 510; Abdul Ghaffar v. State, 2005 PCr.LJ 887; Muhammad Arif v. State, 2006 PCr.LJ 1827; Kazim Hussain v. State, 2008 PCr.LJ 971 are approved.
[9]. See Azeem Khan v. Mujahid Khan, 2016 SCMR 274.
[10]. See State v. Mushtaq Ahmad, PLD 1973 SC 418.
[11]. See Lejzor Teper v. Queen, PLD 1952 PC 117; Fazal Elahi v. Crown, PLD 1953 FC 214; Saeed Ahmad v. Muhammad Irfan, PLD 1986 SC 690 (5-MB).
[12]. See Hashim Qasim v. State, 2017 SCMR 986; Fayyaz Ahmad v. State, 2017 SCMR 2026.
[13]. See Siraj v. Crown, PLD 1956 FC 123 (4-MB); Nazir Hossain v. State, 1969 SCMR 388 (4-MB); Sairan v. State, PLD 1970 SC 56.
[14]. See Karamat Hussain v. State, 1972 SCMR 15; Saeed Ahmad v. Muhammad Irfan, PLD 1986 SC 690 (5-MB); Barkat Ali v. Karam Elahi, 1992 SCMR 1047; Ibrahim v. State, 2009 SCMR 407; Muhammad Hussain v. State, 2011 SCMR 1127; Imran v. State, 2015 SCMR 155.
[15]. See Azeem Khan v. Mujahid Khan, 2016 SCMR 274.
[16]. See Javed Ahmad v. State, 1978 SCMR 114; Zafar Hayat v. State, 1995 SCMR 896; Muhammad Rafique v. State, 2004 SCMR 755; Muhammad Khalid v. Abdullah, 2008 SCMR 158; Sughra Begum v. Qaiser Pervez, 2015 SCMR 1142; Ibrar Hussain v. State, 2020 SCMR 1850.
[17]. See Hadi Bakhsh v. State, PLD 1963 (W. P.) Karachi 805 (DB); Shahzada v. Hamidullah, 1968 PCr.LJ 176 (5-MB); Amir Zaman v. Mahboob, 1985 SCMR 685 (4-MB); Saeed Muhammad v. State, 1993 S C M R 550; Khalid Javed v. State, 2003 SCMR 1419; Akhtar Ali v. State, 2008 SCMR 6 (4-MB); Muhammad Rafique v. State, 2010 SCMR 385; Muhammad Saleem v. Muhammad Azan, 2011 SCMR 474; Sardar Bibi v. Munir Ahmed, 2017 SCMR 344.
[18]. 1968 PCr.LJ 176.
[19]. Akhtar Ali v. State, 2008 SCMR 6.
[20]. Observations of the Federal Shariat Court on this point made in Noor Ullah v. State, 2012 YLR 2618; Changez v. Shahid, 2018 MLD 1136; Tariq Hussain v. State, 2018 MLD 1573 are approved.
[21]. 2017 SCMR 344.
[22]. 2017 SCMR 486.
[23]. See Saifullah v. State, 1985 SCMR 410 (4-MB); Ali Muhammad v. Bashir Ahmed, 2003 SCMR 868; Israr-Ul-Haq v. Muhammad Fayyaz, 2007 SCMR 1427; Hayatullah v. State, 2018 SCMR 2092 (5-MB).
[24]. 24 Predecessor Court of this Court.
[25]. PLD 1956 FC 123.
[26]. 1985 SCMR 410.
[27]. 2015 SCMR 840.
[28]. 28 2003 SCMR 1419.
[29]. 2011 SCMR 1233.
[30]. 2017 SCMR 486.
[31]. See Sardar Bibi v. Munir Ahmed, 2017 SCMR 344; Azhar Mehmood v. State, 2017 SCMR 135.
[32]. See Yaqoob Shah v. State, PLD 1976 SC 53; Machia v. State, PLD 1976 SC 695; Muhammad Iqbal v. Abid Hussain, 1994 SCMR 1928; Mehmood Ahmad v. State, 1995 SCMR 127; Muhammad Sharif v. State, 1997 SCMR 866; Dildar Hussain v. Muhammad Afzaal, PLD 2004 SC 663; Iftikhar Hussain v. State, 2004 SCMR 1185; Sikandar v. State, 2006 SCMR 1786; Ghulam Murtaza v. Muhammad Akram, 2007 SCMR 1549; Altaf Hussain v. Fakhar Hussain, 2008 SCMR 1103; Hashim Qasim v. State, 2017 SCMR 986.
[33]. 33 See Muhammad Luqman v. State, PLD 1970 SC 10.
[34]. See Tariq Pervez v. State, 1995 SCMR 1345.
[35]. Musnad Abi Huthayfa, Hadith No. 4. Kitab ul Hadood, p. 32., relied upon by the Federal Shariat Court in Kazim Hussain v. State, 2008 PCr.LJ 971.
[36]. Mishkatul Masabili (English Translation by Fazlul Karim) Vol. II, p. 544, relied upon by the Federal Shariat Court in State v. Tariq Mahmood, 1987 PCr.LJ 2173; Sunnan Tarimzi, Hadith No. 1344, Kitab ul Hadood.
[37]. PLD 2002 SC 1048.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
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
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]
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]
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.
Effect of material improvements made by a witness
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.
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
Recovery of mobile phones and sims
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
Recovery of weapon of offence, a corroborative evidence
Evidentiary value of a blood-stained alleged weapon of offence without a forensic report matching the blood found thereon with that of the deceased
Medical evidence, not corroborative rather supporting evidence
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.
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
[1]. FIR No. 11, P.S. Mangla Cannt., district Jehlum, offence u/s 302/34, PPC.
[2]. This person died during trial of the case, and could not be examined by the prosecution as its witness.
[3]. 3 See Noorul Haq v. State, 1989 PCr.LJ 1322 (DB).
[4]. See Fakiro v. State, PLD 1964 (W. P.) Karachi 344 (DB).
[5]. See Bhupendra Singh v. State of Punjab, AIR 1968 SC 1438.
[6]. 6 See Jumman v. State of Punjab, AIR 1957 SC 469; Ram Shankar v. State of West Bengal, AIR 1962 SC 1239; Masalti v. State of U.P., AIR 1965 SC 202.
[7]. AIR 1921 Sindh 84 (FB).
[8]. Observations of the Lahore High Court and the Federal Shariat Court in this regard made in Muhammad Fazil v. State, 1982 PCr.LJ 510; Abdul Ghaffar v. State, 2005 PCr.LJ 887; Muhammad Arif v. State, 2006 PCr.LJ 1827; Kazim Hussain v. State, 2008 PCr.LJ 971 are approved.
[9]. See Azeem Khan v. Mujahid Khan, 2016 SCMR 274.
[10]. See State v. Mushtaq Ahmad, PLD 1973 SC 418.
[11]. See Lejzor Teper v. Queen, PLD 1952 PC 117; Fazal Elahi v. Crown, PLD 1953 FC 214; Saeed Ahmad v. Muhammad Irfan, PLD 1986 SC 690 (5-MB).
[12]. See Hashim Qasim v. State, 2017 SCMR 986; Fayyaz Ahmad v. State, 2017 SCMR 2026.
[13]. See Siraj v. Crown, PLD 1956 FC 123 (4-MB); Nazir Hossain v. State, 1969 SCMR 388 (4-MB); Sairan v. State, PLD 1970 SC 56.
[14]. See Karamat Hussain v. State, 1972 SCMR 15; Saeed Ahmad v. Muhammad Irfan, PLD 1986 SC 690 (5-MB); Barkat Ali v. Karam Elahi, 1992 SCMR 1047; Ibrahim v. State, 2009 SCMR 407; Muhammad Hussain v. State, 2011 SCMR 1127; Imran v. State, 2015 SCMR 155.
[15]. See Azeem Khan v. Mujahid Khan, 2016 SCMR 274.
[16]. See Javed Ahmad v. State, 1978 SCMR 114; Zafar Hayat v. State, 1995 SCMR 896; Muhammad Rafique v. State, 2004 SCMR 755; Muhammad Khalid v. Abdullah, 2008 SCMR 158; Sughra Begum v. Qaiser Pervez, 2015 SCMR 1142; Ibrar Hussain v. State, 2020 SCMR 1850.
[17]. See Hadi Bakhsh v. State, PLD 1963 (W. P.) Karachi 805 (DB); Shahzada v. Hamidullah, 1968 PCr.LJ 176 (5-MB); Amir Zaman v. Mahboob, 1985 SCMR 685 (4-MB); Saeed Muhammad v. State, 1993 S C M R 550; Khalid Javed v. State, 2003 SCMR 1419; Akhtar Ali v. State, 2008 SCMR 6 (4-MB); Muhammad Rafique v. State, 2010 SCMR 385; Muhammad Saleem v. Muhammad Azan, 2011 SCMR 474; Sardar Bibi v. Munir Ahmed, 2017 SCMR 344.
[18]. 1968 PCr.LJ 176.
[19]. Akhtar Ali v. State, 2008 SCMR 6.
[20]. Observations of the Federal Shariat Court on this point made in Noor Ullah v. State, 2012 YLR 2618; Changez v. Shahid, 2018 MLD 1136; Tariq Hussain v. State, 2018 MLD 1573 are approved.
[21]. 2017 SCMR 344.
[22]. 2017 SCMR 486.
[23]. See Saifullah v. State, 1985 SCMR 410 (4-MB); Ali Muhammad v. Bashir Ahmed, 2003 SCMR 868; Israr-Ul-Haq v. Muhammad Fayyaz, 2007 SCMR 1427; Hayatullah v. State, 2018 SCMR 2092 (5-MB).
[24]. 24 Predecessor Court of this Court.
[25]. PLD 1956 FC 123.
[26]. 1985 SCMR 410.
[27]. 2015 SCMR 840.
[28]. 28 2003 SCMR 1419.
[29]. 2011 SCMR 1233.
[30]. 2017 SCMR 486.
[31]. See Sardar Bibi v. Munir Ahmed, 2017 SCMR 344; Azhar Mehmood v. State, 2017 SCMR 135.
[32]. See Yaqoob Shah v. State, PLD 1976 SC 53; Machia v. State, PLD 1976 SC 695; Muhammad Iqbal v. Abid Hussain, 1994 SCMR 1928; Mehmood Ahmad v. State, 1995 SCMR 127; Muhammad Sharif v. State, 1997 SCMR 866; Dildar Hussain v. Muhammad Afzaal, PLD 2004 SC 663; Iftikhar Hussain v. State, 2004 SCMR 1185; Sikandar v. State, 2006 SCMR 1786; Ghulam Murtaza v. Muhammad Akram, 2007 SCMR 1549; Altaf Hussain v. Fakhar Hussain, 2008 SCMR 1103; Hashim Qasim v. State, 2017 SCMR 986.
[33]. 33 See Muhammad Luqman v. State, PLD 1970 SC 10.
[34]. See Tariq Pervez v. State, 1995 SCMR 1345.
[35]. Musnad Abi Huthayfa, Hadith No. 4. Kitab ul Hadood, p. 32., relied upon by the Federal Shariat Court in Kazim Hussain v. State, 2008 PCr.LJ 971.
[36]. Mishkatul Masabili (English Translation by Fazlul Karim) Vol. II, p. 544, relied upon by the Federal Shariat Court in State v. Tariq Mahmood, 1987 PCr.LJ 2173; Sunnan Tarimzi, Hadith No. 1344, Kitab ul Hadood.
[37]. PLD 2002 SC 1048.
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